Judicial review in the United States

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Judicial review is the power of a court to review the actions of public sector bodies in terms of their lawfulness, or to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself.

At the federal level, there is no judicial review explicit in the United States Constitution, but the doctrine has been inferred from that document.[1] 5 of the 13 states at the time of 1787's Constitutional Convention had some form of "judicial review" or "judicial veto" in their state Constitutions. Delegates at 1787's Constitutional Convention, including South Carolina's Charles Pinckney, spoke out against the doctrine of judicial review. The Constitution states in Article III that:

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....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....In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Ever since the case of Marbury v. Madison, the Supreme Court has understood that it has a power of judicial review, in order to apply the Constitution to particular cases.[2] This does not mean, however, that the judiciary decides the meaning of the text of the Constitution. Article VI requires all public officials in the other branches of government to be bound "by oath or affirmation, to support this Constitution," and the officials of the other branches of government have almost always respected the Court's interpretations, even when disagreeing with them, on the premise that the Court's interpretations of the Constitution have been in good faith.

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[edit] Administrative review

The procedure for judicial review of federal administrative regulation in the United States is set forth by the Administrative Procedure Act although the courts have ruled such as in Bivens v. Six Unknown Named Agents that a person may bring a case on the grounds of implied cause of action when no statutory procedure exists.

[edit] Constitutional review

Although the power to strike down laws is not specifically listed in the Constitution, it has been deemed an implied power, derived from Article III quoted above, and from Article VI which declares that the Constitution is the supreme law of the land "and the Judges of every state shall be bound thereby". No state or federal law is allowed to violate the U.S. Constitution.

The foremost authority for deciding the constitutionality of federal or state law under the Constitution of the United States in cases which come before it is the Supreme Court of the United States, as decided in the 1803 case of Marbury v. Madison. In Marbury the Supreme Court struck down a portion of the Judiciary Act of 1789 which had purported to change the Court's original jurisdiction from what the Constitution described. Although the Court continues to review the constitutionality of statutes in cases which come before it, Congress and the states retain power to influence what cases come before the Court. For example, the Constitution (at Article III, Section 2) gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction, and additionally states may choose to exercise sovereign immunity from lawsuits.

The ultimate court for deciding the constitutionality of state law under state constitutions is normally the highest state appellate court, whose judgments are final in the absence of a federal question. This court is usually called a state supreme court, but sometimes is known as a court of appeals. Even before Marbury, the doctrine of judicial review was specifically enshrined in some state constitutions, and by 1803 it had been employed in both state courts and federal courts in actions dealing with state statutes.

In the federal system, courts may only decide actual cases or controversies; it is not possible to request the federal courts to review a law without at least one party having legal standing to engage in a lawsuit. This principle means that courts sometimes do not exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).

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. Justice Brandeis framed it thus (citations omitted):[3]

“ The Court developed, for its own governance in the cases confessedly 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. They are:
  1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.
  2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.
  3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.
  4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of… If a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
  5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.
  6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
  7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.
 ”

After the Court exercised its power of judicial review in the 1803 case of Marbury v. Madison, it avoided striking down a federal statute during the subsequent fifty years, and would not do so again until the 1856 case of Dred Scott v. Sandford.[4]

[edit] Pros and cons

Although judicial review has now become an established part of constitutional law in the United States, there are some who disagree with the doctrine, or believe that it is unconstitutional. This is generally based on two grounds. First, the power of constitutional review is not specifically delegated to the Supreme Court anywhere in the Constitution. Along with this, the Tenth Amendment explicitly states that any power that is not delegated by the constitution is reserved to the states, or people. Secondly, it is the states alone that have the power to create this set of laws for the federal government follow, logically it is the states alone that have the power to interpret the meaning of these laws. Allowing the federal government to conduct judicial review allows them to interpret their own restrictions as they see fit, with no consent to the originating power.


Although the Constitution does not explicitly authorize judicial review, it also does not explicitly prevent it, as did the Virginia Constitution of 1776. That Virginia Constitution said: "All power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."[5]

The extent of judicial review in the United States was discussed at the Constitutional Convention, and the Virginia Plan suggested a "council of revision" which would have included the Supreme Court, and which would have been empowered to examine proposed new laws and could accept or reject them regardless of constitutionality. However, under that proposed system, Congress could pass a bill over the council's veto. The "council of revision" proposed in the Virginia Plan was ultimately rejected in the Constitutional Convention, for fear that the Supreme Court would abuse its power, and the proposed "council of revision" morphed into the Presidential veto. Thus, the courts were only empowered to strike down statutes for unconstitutionality. James Madison, the author of the Virginia plan, suggested narrowing the courts' power of judicial review even further:

“ He [Madison always referred to himself in the third person] doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution and whether it ought not to be limited to cases of a judiciary nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that department.[6] ”

Robert Yates, a delegate to the Constitutional Convention from New York, predicted during the ratification process how the courts would use the power of judicial review:

“ [I]n their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal.[7] ”

Both proponents of judicial review, as well as its opponents note that any government based on a written constitution requires some mechanism to prevent laws from being passed that violate that constitution. 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 two sides differ only in which mechanism should hold that power, either the states or the federal government. This concept was laid out by Alexander Hamilton in Federalist No. 78:

“ 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 not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. 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. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[8] ”

In 1820, Thomas Jefferson expressed his deep reservations about the doctrine of judicial review:

“ You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. 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. It has more wisely made all the departments co-equal and co-sovereign within themselves.[9] ”

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. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.[10] ”

Lincoln was alluding here to the case of Dred Scott v. Sandford, in which the Court had struck down a federal statute for the first time since Marbury v. Madison.[4]

[edit] Standard of review

In the United States, unconstitutionality is the only ground for a federal court to strike down a federal statute. Justice Washington, speaking for the Marshall Court, put it this way in an 1829 case:

“ We intend to decide no more than that the statute objected to in this case is not repugnant to the Constitution of the United States, and that unless it be so, this Court has no authority, under the 25th section of the judiciary act, to re-examine and to reverse the judgement of the supreme court of Pennsylvania in the present case.[11] ”

If a state statute conflicts with a valid federal statute, then courts may strike down the state statute as a violation of the Supremacy Clause. But a federal court may not strike down a statute absent a violation of Federal law or of the federal Constitution.

Moreover, a suspicion or possibility of unconstitutionality is not enough for American courts to strike down a statute. Alexander Hamilton explained in Federalist 78 that the standard of review should be "irreconcilable variance" with the Constitution. Antifederalists agreed that courts would be unable to strike down federal statutes absent a conflict with the Constitution. For example, Robert Yates, writing under the pseudonym "Brutus", asserted that "the courts of the general government [will] be under obligation to observe the laws made by the general legislature not repugnant to the constitution." [12]

These principles—that federal statutes can only be struck down for unconstitutionality and that the unconstitutionality must be clear—were very common views at the time of the framing of the Constitution. For example, George Mason explained during the constitutonal convention that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course." [13]

For centuries, the courts were relatively deferential to Congress. 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."[14]

Until the twentieth century, judges usually adhered to this principle that a statute could only be deemed unconstitutional in case of a clear contradiction. However, this presumption of constitutionality weakened somewhat during the twentieth century, as exemplified by the Supreme Court’s famous footnote four. Nevertheless, the federal courts have not departed from the principle that courts may only strike down statutes for unconstitutionality.

[edit] Footnotes

  1. ^ "The Establishment of Judicial Review". Findlaw.
  2. ^ Marbury v. Madison, 5 US 137 (1803).
  3. ^ [Ashwander v. Tennessee Valley Authority]], 297 U.S. 288, 346-9 (1936) (Brandeis, concurring) (citing cases)
  4. ^ a b See Menez, Joseph et al., Summaries of Leading Cases on the Constitution, page 125 (2004).
  5. ^ Virginia Constitution of 1776 via Avalon Project at Yale Law School.
  6. ^ Madison, James (speaking on August 27, 1787). Quoted in The debates in the several state conventions on the adoption of the federal constitution as recommended by the general convention at Philadelphia in 1787, page 483 (1863).
  7. ^ Yates, Robert (writing as "Brutus"). Anti-Federalist Papers (31 January 1788).
  8. ^ Hamilton, Alexander. Federalist #78 (June 14, 1788).
  9. ^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820).
  10. ^ Lincoln, Abraham. First Inaugural Address (March 4, 1861).
  11. ^ Satterlee v. Matthewson, 27 U.S. 380 (1829).
  12. ^ Brutus, no. 14 (28 Feb. – 6 Mar. 1788)
  13. ^ Two Records of the Federal Convention of 1787, at 78 (Max Farrand ed., Yale Univ. Press 1927) (1911).
  14. ^ Ogden v. Saunders, 25 U.S. 213 (1827).

[edit] See also