After the Constitution was ratified, the principle known as judicial review became established in American jurisprudence by the famous case of Marbury v. Madison (1803). There, John Marshall argued that the power of judicial review was a necessary consequence of two features of the Constitution: first that it was written; and second that it limited the powers of Congress (and, he could have added, it limited the powers of state legislatures as well). He argued:
The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written…. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void…. If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect?… If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
Marshall further asked the detractors of judicial review to consider what would be the consequences of denying this power to the courts: “It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits.” And finally, he suggested that the wording of the Supremacy Clause implies this power: “in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.”
Therefore, although judicial review cannot be found within the text of the Constitution, it is fair to say that the concept was a part of the “original intent” of the Framers and Ratifiers, and also that it follows logically from what the document does say.
The two issues which precipitated the allusions to judicial review at the Constitutional Convention were whether the federal legislature should be able to veto state legislation and whether the advice of the federal courts should be required before the president could exercise his veto power. Neither of these proposals was adopted into the final draft of the Constitution, but discussions surrounding these failed proposals reinforce the presumption at the Convention that the courts would have the power to strike down laws they deemed unconstitutional.
For instance, when James Madison was discussing the necessity of a national veto power over state laws before they could be executed, he said that without such a power the states “will pass laws which will accomplish their injurious objects before they can be repealed by the general legislature, or set aside by the national tribunals [courts]. Confidence cannot be put in the state tribunals [courts] as guardians of the national authority and interests. In all the states, these [state courts] are more or less dependent on the legislatures. . . . In Rhode Island, the judges who refused to execute an unconstitutional law were displaced; and others substituted, by the legislature, who would be the willing instruments of the wicked and arbitrary plans of their masters” (July 17). Madison is here suggesting that all courts have a legitimate function of striking down unconstitutional laws, but some state courts had been afraid to exercise that power because of their dependence on state legislatures. Federal judges, therefore, because they would not be beholden to any legislature for their tenure, could exercise their power to strike down unconstitutional laws without fear of reprisals.
2. An Additional Negative on Federal Laws
In the discussion regarding whether the judges should join with the executive in vetoing legislation, it was objected that giving them that power would give them a “double negative.” George Mason, however, explained why he believed that a double negative was preferable to the single one they already enjoyed. The single negative they were already familiar with (judicial review) was very limited: “in their expository capacity of judges they would [already] have one negative. He would reply, that in this capacity they could impede in one case only the operation of laws. They could declare an unconstitutional law void. But with regard to every law however unjust, oppressive, or pernicious, that did not come plainly under this description, they would be under the necessity, as judges, to give it a free course” (July 21). Mason is clearly saying that judges already have the power to strike down unconstitutional laws. But that power is very limited. Their private opinions as to a law’s justice or propriety ought to be irrelevant to their judgments on the bench.