Judicial Review

Introduction

One aspect of the principle of checks and balances is of such overriding importance in the American constitutional system that it stands, by itself, as one of that system’s basic principles: judicial review.

The power of judicial review is the power of courts to determine whether what government does is in accord with what the Constitution provides. More precisely, judicial review may be defined this way: It is the power of a court to determine the constitutionality of a governmental action.

In part, then, judicial review is the power to declare unconstitutional –to declare illegal, null and void, of no force and effect–a governmental action found to violate some provision in the Constitution. The power of judicial review is held by all federal courts and by most State courts, as well. Generally, the power is held by all courts of record. These are courts that keep a record of their proceedings and have the power to punish for contempt. Usually, only the lowest courts in a State–justice of the peace courts, for example–are not courts of record.

The Constitution does not provide for judicial review in so many words. Yet it seems clear that the Framers intended that the federal courts, and in particular the Supreme Court, should have that power. In The Federalist No. 78 Alexander Hamilton wrote that “independent judges” would prove to be “an essential safeguard against the effects of occasional ill humors in society.” In The Federalist No. 51 James Madison called the judicial power one of the “auxiliary precautions” against the possible dominance of one branch of government over another.

In practice, the Supreme Court established the power of judicial review in the landmark case of Marbury v. Madison in 1803. Since Marbury, the Supreme Court and other federal and State courts have used the power in thousands of cases. For the most part, the courts have upheld challenged governmental actions. That is, in most cases in which the power of judicial review is exercised, the actions of government are found to be constitutional.
That is not always the case. To date, the Supreme Court has decided some 150 cases in which it has found an act or some part of an act of Congress to be unconstitutional. It has struck down several presidential and other executive branch actions as well. The Court has also voided hundreds of actions of the States and their local governments, including more than 1,100 State laws.

The Establishment of Judicial Review

Judicial review is one of the distinctive features of United States constitutional law. It is no small wonder, then, to find that the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds is nowhere expressly conveyed. But it is hardly noteworthy that its legitimacy has been challenged from the first, and, while now accepted generally, it still has detractors and its supporters disagree about its doctrinal basis and its application.1 Although it was first asserted in Marbury v. Madison 2 to strike down an act of Congress as inconsistent with the Constitution, judicial review did not spring full-blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters,3 and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. 4

Judicial Review and the U.S. Constitution

Practically all of the framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation,5 and prior to Marbury the power seems very generally to have been assumed to exist by the Justices themselves.6 In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power,7 and in other debates questions of constitutionality and of judicial review were prominent.8 Nonetheless, although judicial review is consistent with several provisions of the Constitution and the argument for its existence may be derived from them, these provisions do not compel the conclusion that the Framers intended judicial review nor that it must exist. It was Chief Justice Marshall’s achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional jurisprudence.

Judicial Review: Developments

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This text about Judicial Review is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] See the richly detailed summary and citations to authority in G. GUNTHER, CONSTITUTIONAL LAW 1-38 (12th ed. 1991); For expositions on the legitimacy of judicial review, see L. HAND, THE BILL OF RIGHTS (1958); H. WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW:SELECTED ESSAYS 1-15 (1961); A. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 1-33 (1962); R. BERGER, CONGRESS V. THE SUPREME COURT (1969). For an extensive historical attack on judicial review, see 2 W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES chs. 27-29 (1953), with which compare Hart, Book Review, 67 HARV. L. REV. 1456 (1954). A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate over Judicial Review, 1790-1961, in C. BEARD, THE SUPREME COURT AND THE CONSTITUTION 1-34 (1962 reissue of 1938 ed.), and bibliography at 133-149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.

[Footnote 2] 5 U.S. (1 Cr.) 137 (1803). A state act was held inconsistent with a treaty in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).

[Footnote 3] J. Goebel, supra at 60-95.

[Footnote 4] Id. at 96-142.

[Footnote 5] M. Farrand, supra at 97-98 (Gerry), 109 (King), 2 id. at 28 (Morris and perhaps Sherman). 73 (Wilson), 75 (Strong, but the remark is ambiguous). 76 (Martin), 78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92-93 (Madison), 248 (Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 id. at 220 (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson. “Mr. Mercer… disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable.” 2 id. at 298. “Mr. Dickinson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute.” Id. at 299. Of course, the debates in the Convention were not available when the state ratifying conventions acted, so that the delegates could not have known these views about judicial review in order to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being uttered by Framers. 2 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (1836). 131 (Samuel Adams, Massachusetts), 196-197 (Ellsworth, Connecticut). 348, 362 (Hamilton, New York): 445-446. 478 (Wilson, Pennsylvania), 3 id. at 324-25, 539, 541 (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 id. at 71 (Steele, North Carolina), 156-157 (Davie, North Carolina). In the Virginia convention, John Marshall observed if Congress “were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard… They would declare it void…. To what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.” 3 id. at 553-54. Both Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. THE FEDERALIST (J. Cooke ed. 1961). See Nos. 39 and 44, at 256, 305 (Madison), Nos. 78 and 81, at 524-530, 541-552 (Hamilton). The persons supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with the exception of the Mercer-Dickinson comments, indicates at least acquiescence if not agreements by the other Framers.

To be sure, subsequent comments of some of the Framers indicate an understanding contrary to those cited in the convention. See, e.g., Charles Pinckney in 1799: “On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have many advocates in this country.” STATE TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS 412 (F. Wharton ed., 1849).

Madison’s subsequent changes of position are striking. His remarks in the Philadelphia Convention, in the Virginia ratifying convention, and in The Federalist, cited above, all unequivocally favor the existence of judicial review. And in Congress arguing in support of the constitutional amendments providing a bill of rights, he observed: “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights,” 1 ANNALS OF CONGRESS 457 (1789); 5 WRITINGS OF JAMES MADISON 385 (G. Hunt ed., 1904). Yet, in a private letter in 1788, he wrote: “In the state constitutions and indeed in the federal one also, no provision is made for the case of a disagreement in expounding them; and as the courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law, to stamp it with the final character. This makes the Judiciary Department paramount in fact to the legislature, which was never intended and can never be proper.” Id. at 294. At the height of the dispute over the Alien and Sedition Acts, Madison authored a resolution ultimately passed by the Virginia legislature which, though milder, and more restrained than one authored by Jefferson and passed by the Kentucky legislature, asserted the power of the states, though not of one state or of the state legislatures alone, to “interpose” themselves to halt the application of an unconstitutional law. 3 I. BRANT, JAMES MADISON: FATHER OF THE CONSTITUTION, 1787-1800 460-464, 467-471 (1950); Report on the Resolutions of 1798, 6 Writings of James Madison, op. cit., 341-406. Embarrassed by the claim of the nullificationists in later years that his resolution supported their position, Madison distinguished his and their positions and again asserted his belief in judicial review. 6 I. Brant, supra, 481-485, 488-489.

The various statements made and positions taken by the Framers have been culled and categorized and argued over many times. For a recent compilation reviewing the previous efforts, see R. Berger, supra, chs. 3-4.

[Footnote 6] Thus, the Justices on circuit refused to administer a pension act on the grounds of its unconstitutionally, see Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), and “Finality of Judgment as an Attribute of Judicial Power,” supra. Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter, supra, in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), a feigned suit, the constitutionality of a federal law was argued before the Justices and upheld on the merits, in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1797), a state law was overturned, and dicta in several opinions asserted the principle. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Justice Iredell), and several Justices on circuit, quoted in J. Goebel, supra, at 589-592.

[Footnote 7] In enacting the Judiciary Act of 1789, 1 Stat. 73, Congress chose not to vest “federal question” jurisdiction in the federal courts but to leave to the state courts the enforcement of claims under the Constitution and federal laws. In _ 25, 1 Stat. 85, Congress provided for review by the Supreme Court of final judgments in state courts (1) “… where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity;” (2) “… where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity;” or (3) “… where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed” thereunder. The ruling below was to be “re-examined and reversed or affirmed in the Supreme Court…. ”

[Footnote 8] See in particular the debate on the President’s removal powers, discussed supra, “The Removal Power” with statements excerpted in R. Berger, supra at 144- 150. Debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. C. Warren, supra at 107-124.

Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several states was conclusive upon the courts,73 it had treated these questions as justiciable, although it had uniformly rejected them on the merits. In that year, however, the whole subject was thrown into confusion by the inconclusive decision in Coleman v. Miller.74 This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the proposed child labor amendment to the Constitution to the effect that it had been adopted by the Kansas Senate. The attempted ratification was assailed on three grounds: (1) that the amendment had been previously rejected by the state legislature; (2) that it was no longer open to ratification because an unreasonable period of time, thirteen years, had elapsed since its submission to the states, and (3) that the lieutenant governor had no right to cast the deciding vote in the Kansas Senate in favor of ratification.

Judicial Review and the U.S. Constitution

Four opinions were written in the Supreme Court, no one of which commanded the support of more than four members of the Court. The majority ruled that the plaintiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. Without agreement on the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concurred in the result had voted to dismiss the writ on the ground that the amending process “is ‘political’ in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point.” 75 In an opinion reported as “the opinion of the Court,” but in which it appears that only two Justices joined Chief Justice Hughes who wrote it, it was declared that the writ of mandamus was properly denied, because the question whether a reasonable time had elapsed since submission of the proposal was a nonjusticiable political question, the kinds of considerations entering into deciding being fit for Congress to evaluate, and the question of the effect of a previous rejection upon a ratification was similarly nonjusticiable, because the 1868 Fourteenth Amendment precedent of congressional determination “has been accepted.” 76 But with respect to the contention that the lieutenant governor should not have been permitted to cast the deciding vote in favor of ratification, the Court found itself evenly divided, thus accepting the judgment of the Kansas Supreme Court that the state officer had acted validly.77 However, the unexplained decision by Chief Justice Hughes and his two concurring Justices that the issue of the lieutenant governor’s vote was justiciable indicates at the least that their position was in disagreement with the view of the other four Justices in the majority that all questions surrounding constitutional amendments are nonjusticiable.78

Judicial Review: Developments

However, Coleman does stand as authority for the proposition that at least some decisions with respect to the proposal and ratification of constitutional amendments are exclusively within the purview of Congress, either because they are textually committed to Congress or because the courts lack adequate criteria of determination to pass on them.79 But to what extent the political question doctrine encompasses the amendment process and what the standards may be to resolve that particular issue remain elusive.

More about Judicial Review

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References

This text about Judicial Review is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes