Judicial review in the United States

Based on Wikipedia: Judicial review in the United States

The Power That Wasn't Written Down

Here's a puzzle that sits at the heart of American government: the most consequential power the Supreme Court wields—the ability to strike down laws passed by Congress as unconstitutional—appears nowhere in the Constitution itself.

Not a single word.

This power, called judicial review, lets nine unelected judges override the will of hundreds of elected representatives. Since 1960 alone, the Court has invalidated 483 federal and state laws, either entirely or in part. And yet the Founders never explicitly granted this authority. They just assumed it would exist.

How did this happen? The answer takes us back to a world before the Constitution was written, through fierce debates in Philadelphia's sweltering summer of 1787, and ultimately to a political showdown that would define American law forever.

What Judicial Review Actually Means

Before we dive into history, let's be precise about what we're discussing. Judicial review is the power of courts to examine a law—whether passed by Congress, a state legislature, or even an executive regulation—and declare it void if it conflicts with the Constitution.

This is different from ordinary judging. In a typical case, a court applies existing laws to determine who wins a dispute. But with judicial review, the court steps back and asks a more fundamental question: should this law exist at all?

Think of the Constitution as the supreme rulebook. If Congress passes a law that contradicts one of those rules, someone has to call the foul. The question the Founders grappled with was: who?

They could have given this power to the President. They could have created a separate "constitutional council" like some European nations have today. They could have left it to Congress itself to police its own boundaries. Instead, through a combination of implication, assumption, and early precedent, the power landed with the courts.

The States Got There First

The idea didn't spring from nowhere. Years before the Constitutional Convention, state courts were already striking down laws that violated their state constitutions.

The first clear American case was Bayard v. Singleton, decided in 1787 by North Carolina's highest court. But similar cases had cropped up across the young nation: Virginia in 1782, New York in 1784, Rhode Island in 1786. Each time, state judges reasoned the same way. If a constitution is the fundamental law—the foundation everything else rests upon—then ordinary laws that contradict it cannot stand. A building cannot override its own foundation.

These weren't obscure legal disputes. Newspapers reported them. The public debated them. When delegates gathered in Philadelphia to draft a new national constitution, many had direct personal experience with judicial review. Alexander Hamilton had witnessed the New York case. George Wythe and Edmund Randolph had participated in Virginia's. At least seven delegates had been lawyers or judges in these state court battles.

The concept, in other words, was already in the air.

Reading Between the Lines: Where the Constitution Hints at Judicial Review

If you read Article Three of the Constitution—the section establishing the federal courts—you won't find the phrase "judicial review" or anything explicitly granting courts the power to nullify laws. What you will find are two provisions that, taken together, strongly imply this power exists.

First, Article Three declares that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution." This means federal courts have jurisdiction over disputes about what the Constitution means. If a case involves interpreting the Constitution, federal judges can hear it.

Second, Article Six—the Supremacy Clause—establishes a hierarchy of laws. It states that "this Constitution, and the Laws of the United States which shall be made in Pursuance thereof" shall be "the supreme Law of the Land." Notice that subtle qualifier: laws must be made "in pursuance" of the Constitution to count as supreme law. Laws that violate the Constitution? They're not made in pursuance of anything. They're defective from birth.

The logic flows from there. Courts must determine which laws apply in any given case. The Constitution sits at the top of the legal hierarchy. If a statute conflicts with the Constitution, courts must follow the higher law. And following the higher law means treating the conflicting statute as if it doesn't exist.

The Founders could have spelled this out explicitly. They didn't need to. Everyone already understood.

The Virginia Plan and the Council That Never Was

The clearest evidence that the Framers expected judicial review comes from what they chose not to include in the Constitution.

Early in the Convention, delegates debated something called the Virginia Plan, which proposed a "council of revision." This body would have reviewed proposed federal laws before they took effect, accepting or rejecting them—similar to how the presidential veto works today. The council would have included both the President and several federal judges.

Opponents attacked this proposal specifically because it would give judges two chances to strike down bad laws. As delegate Elbridge Gerry put it, federal judges already "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." Why give them a double veto?

Luther Martin made the same argument: "As to the constitutionality of laws, that point will come before the judges in their official character. In this character they have a negative on the laws." Adding them to the council of revision would hand them "a double negative."

The council of revision was rejected. But notice what nobody disputed: that judges would already have the power to strike down unconstitutional laws through their ordinary judicial function. The debate assumed this power existed. The only question was whether judges should get an additional role in the lawmaking process itself.

What the Founders Said Out Loud

Sometimes historical figures do us the courtesy of stating their views directly. James Madison, often called the Father of the Constitution, declared at the Convention: "A law violating a constitution established by the people themselves, would be considered by the Judges as null and void."

George Mason, another Virginia delegate, agreed that federal judges "could declare an unconstitutional law void." But Mason added an important caveat. This wasn't a license for judges to strike down any law they disliked. Only laws that plainly violated the Constitution could be voided. Laws that were merely "unjust, oppressive or pernicious" but technically constitutional? Judges would have to let them stand, even if they personally found them repugnant.

Scholars who have studied the Convention records count between twenty-five and forty delegates who supported judicial review, with only four to six opposed. More tellingly, during the state ratifying conventions—where the Constitution was debated before being adopted—delegates in at least seven states explicitly discussed judicial review. Every single one of them described it as something the new Constitution would permit.

No one stood up to claim the Constitution wouldn't allow courts to void unconstitutional laws. Not one person.

Hamilton's Defense: Federalist Number Seventy-Eight

The most famous articulation of judicial review came from Alexander Hamilton in Federalist Number Seventy-Eight, one of the essays written to persuade New Yorkers to ratify the Constitution.

Hamilton knew this power would trouble some readers. Wasn't it undemocratic for unelected judges to override laws passed by the people's representatives? Hamilton's answer was clever: this power doesn't make judges superior to legislators. It makes the people superior to both.

It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

The Constitution, Hamilton argued, represents the most fundamental expression of the people's will—more fundamental than any individual law. When Congress passes an unconstitutional statute, it's Congress that's defying the people, not the judges who strike it down. The judges are simply enforcing what the people already decided.

Hamilton went further. He saw judicial review as essential protection against legislative overreach. Courts would serve as "an intermediate body between the people and the legislature," keeping Congress "within the limits assigned to their authority." Without this check, what would stop Congress from ignoring constitutional boundaries whenever convenient?

The Case That Made It Official

Despite all this background understanding, judicial review remained somewhat theoretical until 1803, when the Supreme Court decided Marbury v. Madison.

The case arose from a political knife fight. In the final weeks of John Adams's presidency, his Federalist Party rushed to fill the federal courts with sympathetic judges before Thomas Jefferson's Democratic-Republicans took power. Among these "midnight appointments" was William Marbury, named a justice of the peace for the District of Columbia. But in the chaos of the transition, Marbury's commission was never delivered.

When Jefferson's Secretary of State, James Madison, refused to hand over the commission, Marbury sued directly in the Supreme Court. He pointed to a provision in the Judiciary Act of 1789 that seemed to give the Court original jurisdiction over exactly this kind of case.

Chief Justice John Marshall faced a dilemma. If the Court ordered Madison to deliver the commission, Jefferson's administration might simply ignore the order—humiliating the young Court and establishing that its rulings could be defied. But if Marshall backed down and ruled for Madison, he'd appear to be caving to political pressure.

Marshall found a third path. He ruled that Marbury deserved his commission and that Madison was wrong to withhold it. But then Marshall declared the Court couldn't actually order Madison to hand it over. Why? Because the provision of the Judiciary Act that gave the Supreme Court jurisdiction over this case was itself unconstitutional.

The Constitution, Marshall explained, specifically lists the types of cases where the Supreme Court has "original jurisdiction"—meaning cases that can be filed directly in the Supreme Court rather than working their way up from lower courts. Disputes over government appointments weren't on that list. Congress couldn't add to the list by passing a statute. The Constitution trumps statutes.

By ruling against his own party's narrow interests—Marbury didn't get his job—Marshall established something far more valuable: the definitive principle that the Supreme Court can strike down acts of Congress. And he did it in a way that Jefferson's administration couldn't challenge, because technically Jefferson won the case.

An Earlier Precedent

Marbury v. Madison is the famous case, the one taught in every law school. But it wasn't actually the first time the Supreme Court examined whether a federal law was constitutional.

Seven years earlier, in Hylton v. United States (1796), the Court considered a challenge to the Carriage Act of 1794, which taxed carriages. The plaintiff argued this tax was unconstitutional. The Court disagreed—the Carriage Act was fine. But crucially, the Court engaged in judicial review. It examined the constitutional question and reached a conclusion. The power to review was exercised; it just didn't result in striking down the law that particular time.

Marbury gets the spotlight because it was the first case where the Court actually invalidated a federal statute. But Hylton shows the Court was already treating judicial review as part of its job description from the earliest days of the Republic.

Why This Matters: The Check on Power

Judicial review exists because the Founders were deeply suspicious of concentrated power. They had just fought a revolution against a king. They weren't about to create a legislature that could do whatever it pleased.

The Constitution establishes limited government—a government that can only exercise powers specifically granted to it, in ways that don't violate protected rights. But a limit means nothing if no one enforces it. As Hamilton put it, judicial review ensures that "the firmness of the judicial magistracy" can mitigate "the severity" of "unjust and partial laws."

The Framers saw this as part of their careful system of checks and balances. The President can veto legislation. Congress can override vetoes. The Senate confirms judges. Courts can strike down unconstitutional laws. Each branch watches the others. No one gets too powerful.

This doesn't mean judges can substitute their policy preferences for those of elected officials. George Mason's caveat remains important: laws that are merely unwise, even unjust, must be allowed to operate if they're technically constitutional. The judicial role is to police boundaries, not to second-guess policy choices. At least in theory.

The Power in Practice

Since Marbury, the Supreme Court has declared 176 acts of Congress unconstitutional. That might sound like a lot, but consider that Congress has passed over 30,000 laws during that same period. The vast majority of legislation survives constitutional scrutiny.

Still, those 176 cases include some of the most consequential moments in American history. The Court struck down the Missouri Compromise in Dred Scott v. Sandford (1857), helping precipitate the Civil War. It voided New Deal legislation in the 1930s, triggering a constitutional crisis with Franklin Roosevelt. It ended school segregation in Brown v. Board of Education (1954) by declaring "separate but equal" unconstitutional. It recognized marriage equality in Obergefell v. Hodges (2015) and restricted abortion rights in Dobbs v. Jackson (2022).

Each of these decisions sparked fierce debate about whether unelected judges should wield such power. But that debate was baked in from the beginning. The Founders knowingly created a system where courts could override popular majorities. They just didn't write it down in so many words.

The Unwritten Made Permanent

Judicial review is now so embedded in American governance that it's difficult to imagine the system without it. Every major policy debate eventually becomes a constitutional question. Can Congress regulate this? Can states ban that? Does this law violate the First Amendment, the Second, the Fourteenth?

The answer always comes from courts. From judges interpreting a document written in 1787 by people who themselves never explicitly authorized this interpretive power.

Perhaps that's the deepest irony. The Founders trusted future generations to understand what they meant without spelling it out. They assumed courts would naturally step into the role of constitutional guardian. And courts did—so thoroughly that today we can barely imagine it any other way.

The power that wasn't written down became the power that shapes everything.