Orientation and Getting Started
The Creation of the Constitution
The Road to Philadelphia
Slavery and the Constitution
The Presidency
The Federal Judiciary
Some Other Important Details
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The Council of Revision & Judicial Review

Does the Constitution grant the power of Judicial Review?

In the famous case of Marbury v. Madison (1803), the Supreme Court held that part of the Judiciary Act of 1789 violated the United States Constitution. That ruling was an important step in establishing what today is known as “judicial review,” or the power of federal courts to invalidate those acts of the legislative and executive branches of the state and federal governments that are deemed incompatible with the “higher law” of the Constitution. The formidable power of judicial review is nowhere expressly granted in the Constitution, so it is worth asking: When the Constitution was being drafted, did the Framers intend that federal judges would exercise such a power?  

At no time during the Convention did the Framers ever formally decide whether federal courts should exercise the power of judicial review, but they did address the question indirectly when they debated two other topics. In both situations, the discussions involved constitutional provisions that were proposed but were not incorporated into the Constitution. In both situations, one of the reasons given for rejecting the proposed power was that the courts would be able to perform the same function, with fewer objections, through its power of judicial review. In other words, although the Framers never formally adopted judicial review when they were formulating Article III of the Constitution, when they were addressing proposed additions to other parts of the Constitution, they presumed that the courts would have the power to strike down unconstitutional laws. 

The Federal Veto and the Supremacy Clause

The first proposed power that the delegates rejected was the federal veto. Recall that Madison and others had wanted Congress to have the power to veto state legislation. A few of the delegates argued that such a power was unnecessary, because the courts would refuse to give force to any state legislation that contradicted national laws, since federal laws would have superior force. This principle was both broadened and stated more explicitly in the Constitution’s “supremacy clause,” which established that the Constitution and all laws pursuant to the Constitution “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Discussion of what became the Supremacy Clause related to the power of the courts to invalidate only state laws, and the clause explicitly binds only state courts to fulfill this function. But the debates over the rejected federal veto and the adopted supremacy clause clearly demonstrate that the Framers expected that the power would not be limited to state courts. Federal courts were also expected to strike down state legislation when it ran afoul of legitimate federal authority, whether those state laws violated treaties, the Constitution, or federal laws made pursuant to the Constitution.