On Judicial Review

In 1803, in the famous case of Marbury v. Madison, Chief Justice Marshall ruled that the Constitution gave the Supreme Court the authority to nullify acts of Congress—the power of judicial review. Though few seriously consider overruling this long-standing precedent, many legal scholars criticize the legal reasoning in the case and contend that Marshall usurped a power for the Supreme Court that the Constitution did not provide. Nevertheless, originalists who believe that any precedents inconsistent with the Constitution should be overruled have little reason for concern. Though Marbury v. Madison gives questionable Constitutional justifications for judicial review, the Constitution does provide the Supreme Court the power of judicial review for another reason—namely, Article III Section 1 vests the Supreme Court with “the judicial power,” a power which can be shown to include the power of judicial review. Despite the inadequate reasoning of Marbury v. Madison, the Constitution does empower the Supreme Court to nullify acts of Congress.

Marbury v. Madison

To begin, consider the reasons given in Marbury v. Madison for judicial review. In total, Marshall provides four reasons: 1) the writtenness of a written Constitution, 2) the Supremacy Clause of Article VI, 3) the oath of office for judges in Article VI, and 4) the Arising Clause in Article III. Regarding the first three reasons, none of them provide any inkling that the Supreme Court specifically has the power to nullify acts of Congress. Though the final justification provides greater evidence than the previous reasons, it does not necessarily imply a constitutional power of judicial review.

Firstly, the writtenness of the Constitution need not even imply that it should be followed. Rather than strict rules guiding the government, a written Constitution could merely be considered advice or guidelines which government officials should consider, like in the case of previously written Supreme Court cases. Even after making the reasonable assumption that its writtenness implies that it should be followed, the Constitution being written does not imply that the Supreme Court has the authority to overrule acts of Congress. One could as easily presume that a written Constitution should be enforced by a different branch of the government, such as the legislative branch. Though the writtenness of the Constitution allows for various implications, none of these implications leads convincingly to the conclusion that it grants the Supreme Court with the power to overrule acts of Congress.

Similarly, the Supremacy Clause of Article VI does not provide the Supreme Court with the authority to overrule acts of Congress. The Supremacy Clause states, “This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Though it shows that the Constitution was designed to be binding rather than merely advice, the clause does not show that the Supreme Court specifically should have the power to overrule acts of Congress. As the clause mentions “judges in every state” but not federal Supreme Court Justices, it would be more natural to infer from this clause that state judges, but not Supreme Court Justices, have the exclusive power of judicial review. For reasons similar to why the Constitution being written does not confer the Supreme Court the authority to overrule Congressional laws, the Supremacy Clause also does not confer this power.

Continuing, the oath of office does not confer the judiciary the power of judicial review. Regarding the oath of office, Article VI pertinently remarks, “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” If judicial review rests on this clause, then by implication members of the state legislatures as well as any executive officer would also have the power of nullification. A duty to follow the Constitution does not grant a power to nullify acts by other people also claiming to follow the Constitution. As an oath confers a duty but not a power, the Supreme Court’s exclusive power of judicial review cannot be found in this clause.

Finally, Marshall’s one good textual basis for judicial review—the Arising Clause of Article III section 2—creates more questions than it answers. The pertinent part of the Arising Clause states that “the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” Clearly, the judicial power—whatever it is—can be used in cases dealing with the Constitution. Marshall concludes broadly that this power to hear cases arising under the Constitution includes the power to overrule acts of Congress. Though this represents one possibility, other conclusions could easily follow from an unspecified judicial power being exercised in constitutional cases. For example, the judicial power in cases arising under the Constitution could simply represent a refusal to enforce the law in that specific case without overruling the law, or the judicial power could simply be recommendations for Congress to consider in deciding whether to maintain the law–a power of writing authoritative op-ed pieces. Without knowing what the judicial power entails, this clause does not necessarily imply a power of judicial review. Instead, it shows that if the Supreme Court had a power of judicial review, then that power would extend to all cases arising under the Constitution.

The Judicial Power

As can be seen above, Marshall’s primary mistake was inferring from the Constitution that the judicial power included the power of judicial review. Legal scholars who are critical of the Constitutional justification for judicial review make a similar mistake: they infer from the absence of any statement in the Constitution saying “The Supreme Court shall have the authority to overrule acts of Congress” that the Constitution does not grant the power of judicial review. For both Marshall and his critics, their error results from attempting to define “the judicial power” simply by looking at the Constitution when, in fact, “the judicial power” remains undefined in the Constitution. As an undefined term, “the judicial power” can only be defined by looking outside of the Constitution.

In fact, the text of the Constitution implies the need for an investigation outside of the Constitution. The Legislative Vesting Clause of Article I Section 1 states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (emphasis added). By including the phrase “herein granted,” the Legislative Vesting Clause defines legislative powers—legislative power shall consist of the powers “herein granted.” In contrast, the Judicial Vesting Clause of Article III Section 1 states, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Unlike the Legislative Vesting Clause, the Judicial Vesting Clause does not define the judicial power. In contrast, it merely states that the judicial power—whatever it is—shall be vested in the Supreme Court. To determine what the judicial power shall be in cases to which the judicial power extends, such as cases arising under the Constitution, one must look outside of the Constitution because the judicial power remains undefined. As the Constitution was ratified in the late 1780s, the judicial power should be defined based on how it was understood in the period leading up to 1789.

Looking outside of the Constitution, Federalist 78 represents a very powerful source for defining the judicial power. In it, Alexander Hamilton remarks,

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void…

“If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution…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…

“[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”

Though the Federalist Papers are not binding and essentially just represent op-ed pieces from informed individuals, they represent an adequate source for determining the definition and understanding of the judicial power among the public. The purpose of citing the Federalist Paper is not to determine authoritatively the powers granted in the Constitution but simply to determine the definition of terms within the Constitution. In the case of the judicial power, the definition of the term and the powers granted to the Supreme Court are essentially the same, and Federalist 78 shows that the judicial power grants the Supreme Court the power of judicial review.

Even more useful in determining the public meaning of the judicial power, prior to the above quotation in Federalist 78, Alexander Hamilton remarks, “It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable” (emphasis added). In setting up his arguments in Federalist 78, Hamilton does not attempt to convince people whether the Supreme Court has the judicial power; instead, he seeks to explain why the Supreme should have the power of judicial review which “all the American constitutions” also grant to the judiciary. His target audience includes people who oppose the Constitution because it gives the judiciary an undemocratic power to overrule acts of Congress. Aware of the power of judicial review, people opposed the Constitution due to the self-evident inclusion of this power, deeming the granted power undemocratic and unnecessary in a document which allows the people to choose and, thus, control their legislatures. In Federalist 78, Hamilton seeks to defend the power of judicial review which the Supreme Court obviously has and to explain that this power will not lead to tyranny, showing the widespread understanding that the public meaning of the judicial power included judicial review.

The history of the judiciary in the period prior to the Constitution further solidifies this point. Between independence and the validation of the Constitution, many state courts invalidated acts passed by the state legislatures. The practice of judicial review had been accepted and used in many States, and State courts nullified state statutes on both written and unwritten constitutional grounds. Rather than a judicial invention copyrighted in 1803, judicial review has a history predating the Constitution, and judicial review had become part of the public meaning of “the judicial power.”

The above evidence shows that the judicial power included in its public definition the power of judicial review. Given the above evidence, the critics of judicial review have the burden of showing that the definition of the judicial power did not include the power of judicial review. Perhaps, for example, critics could find articles written at the time in response to Federalist 78 that condemned its underlying assumption that the Courts under the Constitution would have the power of judicial review. However, without convincing evidence to rebut this public meaning, the critics are left only with the assertion that the Constitution does not grant the Supreme Court the power of judicial review because it does not explicitly and unambiguously grant it.

Judicial Review: Too Important to be Inferred?

Though the Constitution does not define the judicial power, critics of the constitutional basis for judicial review could argue that reasonable judicial powers should be inferred but that unreasonable judicial powers should not be inferred. Judicial review could be deemed an unreasonable power to infer from the phrase “the judicial power” simply because overruling acts of Congress is a really big deal. Unlike reasonable judicial powers, this really important power should have been specifically and unambiguously enumerated. After all, a written Constitution serves the purpose of enumerating finite, specific powers, so any really important power like judicial review should have been specifically enumerated.

Though this reasoning sounds as question begging as Marshall’s opinion in Marbury v. Madison, its real error is that it misunderstands the underlying definitional problem. The Constitution simply does not define the judicial power so any definition given entails a granting to the Court of power not expressly and unambiguously granted in the Constitution. Unless one defines the judicial power as simply being a Supreme Court Justice and being at a place where cases are heard without exercising any powers over case other than hearing it, any definition of the judicial power gives the Supreme Court powers that are not unambiguously and specifically enumerated. Without a definition in the Constitution, all definitions of the judicial power have this defect.

Though nullifying acts of Congress is certainly a bid deal, the judicial power cannot be defined in any meaningful way that avoids granting it powers that are a big deal. For example, the judicial power could be defined to include the authority not to enforce a piece of legislation in a specific case without having the authority to nullify the act in its entirety. Ignoring a piece of legislation from the representative body of the people would certainly be a big deal. Instead, it could be limited to interpreting the meaning and text of legislation. As the power to interpret text includes the power to essentially rewrite a law (much as the Supreme Court has rewritten the Constitution since the beginning of the New Deal), the power would still be a big deal. Narrowing the power further, it could be defined as simply writing non-binding opinion pieces defending or criticizing Congressional laws on Constitutional or other grounds. Even still, people have been executed throughout history for deals much less big than openly criticizing the leaders of a government. Attempting to define the judicial power based on what seems reasonable still grants the judiciary very large powers unspecified in the Constitution. Unlike seeking its public meaning, this proposed method of defining the judicial power merely represents the arbitrary preferences of the critics of judicial review, including in the judicial power what seems reasonable to them and excluding what seems unreasonable to them.


Marbury v. Madison recognized that the Constitution granted the Supreme Court the power of judicial review. Upon inspection, the four reasons given for judicial review—the writtenness of the Constitution, the Supremacy Clause, the oath of office, and the Arising Clause—do not convincingly show that the Supreme Court has the power of judicial review. However, the Constitution vests the Supreme Court with the judicial power. Unlike legislative powers, the judicial power remains undefined in the Constitution. As such, to define the judicial power, people must look outside the Constitution. Both Federalist 78 and the history of judicial review in the 1780s shows that the judicial power at the time of the Constitution’s ratification included the power of judicial review. Though declaring an act of Congress unconstitutional is a big deal, the judicial power is simply not defined in the Constitution. Thus, any meaningful definition of the judicial power gives the Supreme Court powers that are a big deal. Despite critics of judicial review who argue for imposing arbitrary restrictions on the judicial power, the public understanding of the judicial power at the time of the founding shows that the Constitution grants the Supreme Court the power of judicial review as part of the judicial power and makes the Supreme Court a big deal.

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2 thoughts on “On Judicial Review

  1. Shawn says:

    I cannot disagree with much of what you have stated above. However, I do have one contention. Although “Judicial Power” has not been defined by the Constitution, it has been limited to “all cases arising ‘under’ this Constitution…”. I would argue that in order to excersice Judicial Review, the Surpreme Court would have to have Judicial Powers “over” the Constitution. I believe that the States are the sole arbitrators of the Constitution, not the Supreme Court wchich happens to be a product of the contract (Constitution). Where else does a product of a contract decide what said contract means? Would it not make more sense for the party(s) that are responsible for ultimately approving changes to the contract (the States) to be responsible as well for determining clarifications and/or interpretations of said contract? Great thoughts on the Marbury vs Madison case, I agree with much of your determination.

    • Hey Shawn, thanks for the comment, I’m glad you liked the article. 🙂

      I disagree with your distinguishing between “under” and “over” to show the Court lacks jurisdiction. If you Control f “under” in Federalist 78, you see that Alexander Hamilton remarks: “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission *under which it is exercised,* is void. No legislative act, therefore, contrary to the Constitution, can be valid.” That doesn’t show the Supreme Court has the authority to invalidate laws, but it does provide evidence that the public meaning of “arising under” in 1789 referred to legislation and similar government functions that have their legitimacy from the Constitution.

      As shown above, the judicial power includes the power to declare acts of legislation void, and the arising under clause extends this power to cases “arising under” the Constitution–to cases dealing with whether a Congressional law “violates the tenor of the commission under which it is exercised,” aka violates the tenor of the Constitution–so when you put those two together, the Supreme Court has both the power in general and the jurisdiction in particular to declare Congressional laws unconstitutional.

      Regarding your other point, a contract could certainly include in it an arbitration method independent of the parties themselves. People sign contracts now that say disputes will be resolved by such and such company even though the company is not a signing party. It’s not unreasonable to, in the same writing, both create the resolution method and use it. Additionally, your point need not be incorrect for the Supreme Court to have the power of judicial review. State nullification and judicial review aren’t mutually exclusive concepts, it’s possible to have a legal order that allows both, neither, or just one of the two.

      I think you’re right that it’s a real defect in the Constitution that the federal government chooses the justices that limit the federal government’s powers. It would have been better to have the Supreme Court chosen directly by the states without the President involved. Being defective is different than being unconstitutional though.

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