Judicial review in the United States

[1] Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States.

[6] If the whole legislature, an event to be deprecated, should attempt to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, here is the limit of your authority; and, hither, shall you go, but no further.

[11] Notable state cases involving judicial review include Commonwealth v. Caton (Virginia, 1782),[12][13] Rutgers v. Waddington (New York, 1784), Trevett v. Weeden (Rhode Island, 1786).

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction.

The Virginia Plan included a "council of revision" that would have examined proposed new federal laws and would have accepted or rejected them, similar to today's presidential veto.

For example, Elbridge Gerry said federal judges "would have a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality.

Publications by over a dozen authors in at least twelve of the thirteen states asserted that under the Constitution, the federal courts would have the power of judicial review.

"[35] The Federalist Papers, which were published in 1787–1788 to promote ratification of the Constitution, made several references to the power of judicial review.

Robert Yates, writing under the pseudonym "Brutus", stated: [T]he judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress.

[40] The author of this analysis, Professor William Treanor, concluded: "The sheer number of these decisions not only belies the notion that the institution of judicial review was created by Chief Justice Marshall in Marbury, it also reflects widespread acceptance and application of the doctrine.

The Court reviewed a Virginia statute regarding pre-Revolutionary war debts and found that it was inconsistent with the peace treaty between the United States and Great Britain.

"[47] In 1798, the Kentucky and Virginia legislatures passed a series of resolutions asserting that the states have the power to determine whether acts of Congress are constitutional.

In his book The Least Dangerous Branch, Professor Alexander Bickel wrote: [T]he institution of the judiciary needed to be summoned up out of the constitutional vapors, shaped, and maintained.

[59] After the Court exercised its power of judicial review in Marbury, it avoided striking down a federal statute during the next fifty years.

In a correspondence with Supreme Court Justice James Iredell, Spaight wrote of his disapproval of the doctrine:[63][64][65] I do not pretend to vindicate the law, which has been the subject of controversy: it is immaterial what law they have declared void; it is their usurpation of the authority to do it, that I complain of, as I do most positively deny that they have any such power; nor can they find any thing in the Constitution, either directly or impliedly, that will support them, or give them any color of right to exercise that authority.

Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government (the British doctrine of parliamentary sovereignty).

The delegates at the Convention differed with respect to the question of whether Congress or the judiciary should make determinations regarding constitutionality of statutes.

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

[67]Since the adoption of the Constitution, some have argued that the power of judicial review gives the courts the ability to impose their own views of the law, without an adequate check from any other branch of government.

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.

[69]In 1861, Abraham Lincoln touched upon the same subject, during his first inaugural address: [T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

[1]The power of judicial review was criticized heavily during the Progressive Era by leading politicians like Theodore Roosevelt and William Jennings Bryan.

Roosevelt and Bryan argued in favor of an amendment to allow a popular recall of judges and judicial decisions so that the people at large had the final say in constitutional interpretation.

Constitutional conservatives in favor of judicial supremacy in both major parties, like Alton B. Parker, William Howard Taft, and Elihu Root, opposed the recall proposition and Roosevelt's 1912 bid for the presidency.

Justice Washington put it this way, in an 1827 case: "It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt.

"[76] Although judges usually adhered to this principle that a statute could only be deemed unconstitutional in case of a clear contradiction until the twentieth century, this presumption of constitutionality weakened somewhat during the twentieth century, as exemplified by the Supreme Court's famous footnote four in United States v. Carolene Products Co., 304 U.S. 144 (1938), which suggested that statutes may be subjected to closer scrutiny in certain types of cases.

In 2008, Justice John Paul Stevens reaffirmed this point in a concurring opinion: "[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.

The U.S. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the case before it could be decided on other grounds, an attitude and practice exemplifying judicial restraint.

Justice Brandeis framed it thus (citations omitted):[78] The Court developed, for its own governance in the cases within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.

For example, the Constitution at Article III, Section 2, gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction.