Category Archives: Constitution

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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“Active Liberty” Book Review

In Justice Stephen Breyer’s book Active Liberty, he argues that the Constitution created a federal government embodying the principles of democracy and, as such, judges should defer to Congress as well as state governments as the representative bodies of the people unless they intrude on narrow fundamental rights. Though acknowledging negative rights, he defends fundamental rights like free speech primarily as social rights that enhance the democratic process, and he claims that these rights should not be as strongly protected when not related to the democratic process.

What basis does he give for this interpretation? He essentially provides three reasons: (1) there is a history of voting and active participation in local government in the United State prior to the Constitution, (2) the Constitution starts with the phrase “we the people” which he understands to refer to the present public rather than the people of 1787, and (3) people vote for officials to represent them under the Constitution. Since “we the people” vote for members of the federal government and since people actively participated in state/and local governments prior to the Constitution, the Constitution allegedly grants nearly unlimited power to the federal government.

Though he alludes in a single parenthesis in the book to the Commerce Clause, he neglects to mention that Article I Section 8 of the Constitution specifically enumerates powers to Congress, that the Tenth Amendment restricts the federal government to those enumerated powers, and that the Ninth Amendment rebuts any interpretative method that construes the Constitution to deny or disparage rights retained by the people. After all, why—since voting happens—should he? Given his reasoning, if part of the Constitution said “the sole power of the federal government shall be national defense,” then his arguments would override that because, after all, voting happens—meaning under Breyer’s reasoning that such a clause should not be interpreted to restrict the government. In fact, he does ignore such a clause since the Tenth Amendment restricts the government to national defense and a handful of other powers.

To more specifically respond to his justifications, all three of them provide evidence that the Constitution designed a government intended to reflect generally the will of the people, but they do not show what powers the Constitution granted the democratically run federal government. His first reason provides little more than context since the history predating the Constitution in no way describes the actual powers enumerated to the federal government. Regarding his second reason, “we the people” in context does not even support his position that the preamble emphasizes the democratic nature of the Constitution by referring always to the present generation rather than the founding generation. Though he claims that the phrase refers to the present public rather than “we the people of 1787,” his interpretation ignores that the preamble continues beyond the first three words to say, “and secure the blessings of liberty to ourselves and our posterity” (emphasis added). As it references future generations, the Preamble shows that the Constitution created a government of fixed binding rules for the people and their posterity. Thirdly, the fact that various parts of the Constitution describe direct and indirect electoral processes does make government officials ultimately accountable to the people, but it does not describe what the government may do under the Constitution. The powers enumerated to Congress, and not the electoral process, determines the scope of the federal government’s powers.

More disappointing than his complete neglect of the Tenth Amendment, he also does not attempt to reconcile his support for judicial deference to enable Active Liberty with his support for the rights protected in cases not mentioned in this book such as Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas (contraception use, abortion, and sodomy respectively). In fact, in his chapter on privacy, he quite explicitly says that it would be best for issues of privacy to be handled by the democratic people exercising their Active Liberty. Similarly, when covering the First Amendment, he limits its purpose to protecting the social benefits of speech in a democratic society, and he denies that the First Amendment strongly protects all other speech—even though its text quite explicitly protects a much broader array of rights. In contrast, an interpretation that protects the right to use contraception, have an abortion, and engage in sodomy removes these issues from the purview of the democratic process and limits the Active Liberty Breyer otherwise defends, but he supports these privacy interests nonetheless. Why? Just as he remains silent on why the Tenth Amendment does not meaningfully restrict the federal government, he remains equally silent on why the Due Process Clause protects this arbitrary hodgepodge of rights.

Though one has to wonder under Breyer’s reasoning why these specific rights deserve protection, one can more importantly ask why Breyer so narrowly limits the rights free from the clutches of Active Liberty. If people have a right to engage in sodomy in their home, then why does Active Liberty allow for the criminalization of prostitution done in the same home? If people have a right to use contraception in their home, then why does Active Liberty allow for the criminalization of medical marijuana use in the same home? For each arbitrary right that Breyer deems outside the scope of Active Liberty, many more rights could be protected under similar reasoning, but Breyer, at least for rights unrelated to promoting the democratic process, does not even attempt to produce a principle to determine which unlisted rights Active Liberty cannot violate.

As with most living constitutionalists, Breyer ignores substantial sections of the Constitution in determining his judicial philosophy. Despite his enormous focus on the electoral process described in the Constitution, he ignores that Article I Section 8 only enumerates a limited set of powers to the federal government, that the Tenth Amendment restricts the federal government to its delegated powers, and that the Ninth Amendment protects unlisted rights from being denied or disparaged. With his focus on Active Liberty, he provides no justification for why Active Liberty deserves restrictions in cases other than those that promote the democratic process, and more importantly no principle to explain the random rights that are deemed outside the scope of Active Liberty. Rather than a presumption of constitutionality due to its democratic nature, the Constitution should be interpreted to have a presumption of liberty due to the many limitations it imposes on government power. The amount of the Constitution about which Breyer remains silent when attempting to justify deferring to Active Liberty simply reveals how much of the Constitution must be ignored to come to such a conclusion.

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