The Power of the Courts to Determine the Constitutionality of Laws Is Called Judicial Review

Ability of a court in the US to examine laws to make up one's mind if it contradicts current laws

In the United States, judicial review is the legal ability of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does non explicitly define the ability of judicial review, the dominance for judicial review in the United States has been inferred from the construction, provisions, and history of the Constitution.^[1]

Two landmark decisions by the U.South. Supreme Court served to confirm the inferred constitutional authority for judicial review in the United states. In 1796, Hylton five. United States was the first case decided by the Supreme Courtroom involving a direct challenge to the constitutionality of an act of Congress, the Railroad vehicle Act of 1794 which imposed a "railroad vehicle tax".^[2] The Court performed judicial review of the plaintiff's merits that the carriage tax was unconstitutional. After review, the Supreme Courtroom decided the Carriage Deed was constitutional. In 1803, Marbury v. Madison ^[3] was the get-go Supreme Court instance where the Court asserted its dominance to strike down a constabulary every bit unconstitutional. At the cease of his opinion in this decision,^[4] Chief Justice John Marshall maintained that the Supreme Court's responsibleness to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution.

As of 2014^[update], the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional.^[five] In the flow 1960–2019, the Supreme Court has held 483 laws unconstitutional in whole or in role.^[six]

Judicial review before the Constitution [edit]

If the whole legislature, an effect to be deprecated, should endeavor to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, hither is the limit of your authority; and, hither, shall yous go, merely no further.

—George Wythe in Commonwealth v. Caton

Merely it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no further than to the injury of item citizens' private rights, by unjust and partial laws. Hither also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to exist expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to authorize their attempts. This is a circumstance calculated to have more influence upon the grapheme of our governments, than but few may be aware of.

—Alexander Hamilton in Federalist No. 78

Before the Constitutional Convention in 1787, the power of judicial review had been exercised in a number of states. In the years from 1776 to 1787, state courts in at least seven of the thirteen states had engaged in judicial review and had invalidated land statutes considering they violated the state constitution or other higher law.^[7] The first American decision to recognize the principle of judicial review was Bayard 5. Singleton,^[8] decided in 1787 by the Supreme Court of North Carolina'due south predecessor. ^[ix] The Northward Carolina court and its counterparts in other states treated country constitutions as statements of governing police to exist interpreted and applied past judges.

These courts reasoned that because their state constitution was the central police of the state, they must employ the state constitution rather than an human activity of the legislature that was inconsistent with the state constitution.^[ten] These country court cases involving judicial review were reported in the press and produced public give-and-take and comment.^[xi] Notable country cases involving judicial review include Commonwealth v. Caton, (Virginia, 1782),^[12] ^[thirteen] Rutgers v. Waddington (New York, 1784), Trevett five. Weeden (Rhode Island, 1786). Scholar Larry Kramer agreed with Justice Iredell that any judge who enforces an unconstitutional police force becomes complicit in the unconstitutionality and that they themselves become lawbreakers.^[14]

At to the lowest degree seven of the delegates to the Constitutional Convention, including Alexander Hamilton, John Blair Jr. George Wythe, and Edmund Randolph, had personal experience with judicial review considering they had been lawyers or judges in these state court cases involving judicial review.^[15] Other delegates referred to some of these state court cases during the debates at the Constitutional Convention.^[16] The concept of judicial review therefore was familiar to the framers and to the public before the Constitutional Convention.

Some historians argue that Dr. Bonham's Instance was influential in the development of judicial review in the United States.^[17]

Provisions of the Constitution [edit]

The text of the Constitution does not contain a specific reference to the power of judicial review. Rather, the power to declare laws unconstitutional has been accounted an implied ability, derived from Article 3 and Article VI.^[xviii]

The provisions relating to the federal judicial power in Article III state:

The judicial power of the The states, shall exist vested in 1 Supreme Court, and in such inferior courts as the Congress may from time to time ordain and constitute. ... The judicial power shall extend to all cases, in law and disinterestedness, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their dominance. ... In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall take original jurisdiction. In all the other cases before mentioned, the Supreme Court shall accept appellate jurisdiction, both as to police and fact, with such exceptions, and nether such regulations as the Congress shall make.

The Supremacy Clause of Article VI states:

This Constitution, and the Laws of the Us which shall exist made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every Country shall be leap thereby, whatever Thing in the Constitution or Laws of any Land to the Contrary yet. ... [A]ll executive and judicial Officers, both of the U.s. and of the several States, shall be jump by Oath or Affirmation, to support this Constitution.

The ability of judicial review has been implied from these provisions based on the following reasoning. It is the inherent duty of the courts to determine the applicable law in any given example. The Supremacy Clause says "[t]his Constitution" is the "supreme law of the land." The Constitution therefore is the cardinal constabulary of the United States. Federal statutes are the law of the country merely when they are "made in pursuance" of the Constitution. Land constitutions and statutes are valid but if they are consequent with the Constitution. Any law contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." As part of their inherent duty to determine the constabulary, the federal courts accept the duty to translate and employ the Constitution and to decide whether a federal or country statute conflicts with the Constitution. All judges are bound to follow the Constitution. If in that location is a disharmonize, the federal courts take a duty to follow the Constitution and to treat the conflicting statute as unenforceable. The Supreme Courtroom has final appellate jurisdiction in all cases arising under the Constitution, and so the Supreme Courtroom has the ultimate authorisation to decide whether statutes are consistent with the Constitution.^[19]

Statements past the framers of the Constitution regarding judicial review [edit]

Constitutional Convention [edit]

During the debates at the Constitutional Convention, the Founding Fathers made a number of references to the concept of judicial review. The greatest number of these references occurred during the discussion of the proposal known as the Virginia Plan. The Virginia Plan included a "council of revision" that would take examined proposed new federal laws and would have accepted or rejected them, similar to today's presidential veto. The "council of revision" would have included the President along with some federal judges. Several delegates objected to the inclusion of federal judges on the council of revision. They argued the federal judiciary, through its power to declare laws unconstitutional, already had the opportunity to protect confronting legislative inroad, and the judiciary did non need a second style to negate laws by participating in the council of revision. For example, Elbridge Gerry said federal judges "would accept a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually set bated laws, equally existence against the constitution. This was washed besides with general approbation."^[20] Luther Martin said: "[A]s to the constitutionality of laws, that signal will come before the judges in their official character. In this character they have a negative on the laws. Join them with the executive in the revision, and they volition accept a double negative."^[21] These and other like comments by the delegates indicated that the federal courts would have the power of judicial review.

Other delegates argued that if federal judges were involved in the law-making process through participation on the quango of revision, their objectivity as judges in later deciding on the constitutionality of those laws could be impaired.^[22] These comments indicated a belief that the federal courts would take the ability to declare laws unconstitutional.^[23]

At several other points in the debates at the Constitutional Convention, delegates fabricated comments indicating their conventionalities that under the Constitution, federal judges would have the power of judicial review. For example, James Madison said: "A law violating a constitution established by the people themselves, would exist considered past the Judges as zero & void."^[24] George Mason said that federal judges "could declare an unconstitutional police force void."^[25] Yet, Mason added that the ability of judicial review is not a general power to strike down all laws, simply but ones that are unconstitutional:^[25]

Merely with regard to every law however unjust, oppressive or pernicious, which did non come up plainly under this description, they would be under the necessity as Judges to give it a free course.

In all, fifteen delegates from nine states fabricated comments regarding the power of the federal courts to review the constitutionality of laws. All only two of them supported the idea that the federal courts would have the power of judicial review.^[26] Some delegates to the Constitutional Convention did not speak about judicial review during the Convention, but did speak about it before or after the Convention. Including these additional comments past Convention delegates, scholars have found that twenty-five or twenty-6 of the Convention delegates made comments indicating support for judicial review, while three to six delegates opposed judicial review.^[27] Ane review of the debates and voting records of the convention counted equally many every bit forty delegates who supported judicial review, with four or five opposed.^[28]

In their comments relating to judicial review, the framers indicated that the power of judges to declare laws unconstitutional was role of the system of separation of powers. The framers stated that the courts' power to declare laws unconstitutional would provide a check on the legislature, protecting against excessive practice of legislative power.^[29] ^[30]

State ratification debates [edit]

Judicial review was discussed in at least seven of the thirteen state ratifying conventions, and was mentioned by virtually two dozen delegates. In each of these conventions, delegates asserted that the proposed Constitution would permit the courts to do judicial review. At that place is no tape of any delegate to a state ratifying convention who indicated that the federal courts would not have the power of judicial review.^[31]

For example, James Wilson asserted in the Pennsylvania ratifying convention that federal judges would practise judicial review: "If a police force should exist made inconsistent with those powers vested by this instrument in Congress, the judges, every bit a consequence of their independence, and the particular powers of regime beingness defined, will declare such law to exist nix and void. For the power of the Constitution predominates. Annihilation, therefore, that shall be enacted by Congress contrary thereto will not take the force of law."^[32]

In the Connecticut ratifying convention, Oliver Ellsworth also described judicial review as a feature of the Constitution: "This Constitution defines the extent of the powers of the full general regime. If the general legislature should at whatsoever time overleap their limits, the judicial department is a constitutional cheque. If the United States become beyond their powers, if they make a law which the Constitution does not qualify, information technology is void; and the judicial ability, the national judges, who, to secure their impartiality, are to exist fabricated independent, will declare it to be void."^[33]

During the ratification procedure, supporters and opponents of ratification published pamphlets, essays, and speeches debating diverse aspects of the Constitution. Publications by over a dozen authors in at least twelve of the thirteen states asserted that under the Constitution, the federal courts would take the power of judicial review. There is no record of any opponent to the Constitution who claimed that the Constitution did not involve a ability of judicial review.^[34]

Subsequently reviewing the statements made by the founders, one scholar concluded: "The bear witness from the Constitutional Convention and from the country ratification conventions is overwhelming that the original public meaning of the term 'judicial power' [in Article Three] included the power to nullify unconstitutional laws."^[35]

The Federalist Papers [edit]

The Federalist Papers, which were published in 1787–1788 to promote ratification of the Constitution, made several references to the power of judicial review. The virtually extensive word of judicial review was in Federalist No. 78, written by Alexander Hamilton, which clearly explained that the federal courts would have the power of judicial review. Hamilton stated that nether the Constitution, the federal judiciary would have the power to declare laws unconstitutional. Hamilton asserted that this was appropriate considering it would protect the people against corruption of ability by Congress:

[T]he courts were designed to exist an intermediate body between the people and the legislature, in society, amid other things, to keep the latter inside the limits assigned to their authorization. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must exist regarded by the judges, equally a central law. It therefore belongs to them to ascertain its meaning, equally well as the meaning of any detail human action proceeding from the legislative body. If there should happen to be an irreconcilable variance betwixt the two, that which has the superior obligation and validity ought, of grade, to be preferred; or, in other words, the Constitution ought to exist preferred to the statute, the intention of the people to the intention of their agents.

Nor does this determination by whatsoever means suppose a superiority of the judicial to the legislative power. 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, alleged in the Constitution, the judges ought to be governed past the latter rather than the one-time. They ought to regulate their decisions past the fundamental laws, rather than past those which are not fundamental. ...

[A]ccordingly, whenever a item statute contravenes the Constitution, information technology will be the duty of the Judicial tribunals to attach to the latter and condone the one-time. ...

[T]he courts of justice are to exist considered as the bulwarks of a limited Constitution confronting legislative encroachments.^[36]

In Federalist No. fourscore, Hamilton rejected the thought that the power to decide the constitutionality of an act of Congress should lie with each of u.s.: "The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of terminal jurisdiction over the same causes, arising upon the aforementioned laws, is a hydra in government, from which nada only contradiction and confusion can proceed."^[37] Consistent with the demand for uniformity in estimation of the Constitution, Hamilton explained in Federalist No. 82 that the Supreme Court has potency to hear appeals from the state courts in cases relating to the Constitution.^[38]

The arguments against ratification by the Anti-Federalists agreed that the federal courts would have the power of judicial review, though the Anti-Federalists viewed this negatively. Robert Yates, writing nether the pseudonym "Brutus", stated:

[T]he judges under this constitution will command the legislature, for the supreme court are authorised in the final resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and in that location is no power in a higher place them to ready aside their judgment. ... The supreme court and so take a correct, contained of the legislature, to requite a construction to the constitution and every part of it, and in that location is no power provided in this arrangement to correct their structure or practise it abroad. If, therefore, the legislature laissez passer any laws, inconsistent with the sense the judges put upon the constitution, they will declare information technology void.^[39]

Judicial review between the adoption of the Constitution and Marbury [edit]

Judiciary Act of 1789 [edit]

The first Congress passed the Judiciary Deed of 1789, establishing the lower federal courts and specifying the details of federal court jurisdiction. Department 25 of the Judiciary Human activity provided for the Supreme Court to hear appeals from state courts when the state court decided that a federal statute was invalid, or when the state court upheld a state statute against a merits that the country statute was repugnant to the Constitution. This provision gave the Supreme Court the ability to review state court decisions involving the constitutionality of both federal statutes and state statutes. The Judiciary Act thereby incorporated the concept of judicial review.

Court decisions from 1788 to 1803 [edit]

Betwixt the ratification of the Constitution in 1788 and the determination in Marbury v. Madison in 1803, judicial review was employed in both the federal and state courts. A detailed analysis has identified thirty-one state or federal cases during this time in which statutes were struck down as unconstitutional, and seven additional cases in which statutes were upheld only at to the lowest degree i judge concluded the statute was unconstitutional.^[40] The author of this analysis, Professor William Treanor, ended: "The sheer number of these decisions not but belies the notion that the institution of judicial review was created past Chief Justice Marshall in Marbury, information technology also reflects widespread acceptance and application of the doctrine."^[41]

Several other cases involving judicial review issues reached the Supreme Court before the event was definitively decided in Marbury in 1803.

In Hayburn's Case, 2 U.Due south. (2 Dall.) 408 (1792), federal excursion courts held an human activity of Congress unconstitutional for the kickoff fourth dimension. Three federal circuit courts found that Congress had violated the Constitution by passing an act requiring circuit courtroom judges to decide alimony applications, subject field to the review of the Secretary of War. These circuit courts found that this was not a proper judicial function nether Article Iii. These three decisions were appealed to the Supreme Court, but the appeals became moot when Congress repealed the statute while the appeals were pending.^[42]

In an unreported Supreme Courtroom decision in 1794, U.s.a. v. Yale Todd,^[43] the Supreme Courtroom reversed a pension that was awarded nether the same pension deed that had been at issue in Hayburn's Case. The Court apparently decided that the act designating judges to decide pensions was non ramble because this was not a proper judicial function. This plain was the first Supreme Court case to find an deed of Congress unconstitutional. However, there was not an official report of the case and it was not used every bit a precedent.

Hylton v. United States, three U.Southward. (3 Dall.) 171 (1796), was the commencement instance decided by the Supreme Court that involved a challenge to the constitutionality of an human action of Congress. It was argued that a federal taxation on carriages violated the constitutional provision regarding "direct" taxes. The Supreme Court upheld the tax, finding it was constitutional. Although the Supreme Court did non strike downward the human action in question, the Court engaged in the process of judicial review past considering the constitutionality of the tax. The example was widely publicized at the time, and observers understood that the Courtroom was testing the constitutionality of an act of Congress.^[44] Because information technology found the statute valid, the Court did non have to assert that information technology had the ability to declare a statute unconstitutional.^[45]

In Ware v. Hylton, 3 U.Due south. (iii Dall.) 199 (1796), the Supreme Court for the first fourth dimension struck down a state statute. The Courtroom reviewed a Virginia statute regarding pre-Revolutionary war debts and found that it was inconsistent with the peace treaty between the Us and Great United kingdom. Relying on the Supremacy Clause, the Court constitute the Virginia statute invalid.

In Hollingsworth 5. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Court plant that it did non have jurisdiction to hear the case because of the jurisdiction limitations of the Eleventh Amendment. This holding could exist viewed as an implicit finding that the Judiciary Act of 1789, which would have allowed the Courtroom jurisdiction, was unconstitutional in part. However, the Court did non provide whatsoever reasoning for its determination and did not say that information technology was finding the statute unconstitutional.^[46]

In Cooper five. Telfair, four U.S. (4 Dall.) 14 (1800), Justice Chase stated: "Information technology is indeed a general opinion—information technology is expressly admitted by all this bar and some of the judges have, individually in the circuits decided, that the Supreme Court can declare an human activity of Congress to be unconstitutional, and therefore invalid, only there is no adjudication of the Supreme Court itself upon the point."^[47]

Responses to the Kentucky and Virginia Resolutions [edit]

In 1798, the Kentucky and Virginia legislatures passed a series of resolutions asserting that the states have the ability to determine whether acts of Congress are ramble. In response, ten states passed their own resolutions disapproving the Kentucky and Virginia Resolutions.^[48] Half dozen of these states took the position that the power to declare acts of Congress unconstitutional lies in the federal courts, not in the state legislatures. For case, Vermont'southward resolution stated: "Information technology belongs not to state legislatures to make up one's mind on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union."^[49]

Thus, five years before Marbury 5. Madison, a number of land legislatures stated their understanding that nether the Constitution, the federal courts possess the power of judicial review.

Marbury 5. Madison [edit]

Marbury was the beginning Supreme Court determination to strike downwards an act of Congress as unconstitutional. Chief Justice John Marshall wrote the opinion for a unanimous Court.

The case arose when William Marbury filed a lawsuit seeking an order (a "writ of mandamus") requiring the Secretary of State, James Madison, to deliver to Marbury a committee appointing him as a justice of the peace. Marbury filed his example straight in the Supreme Courtroom, invoking the Court's "original jurisdiction", rather than filing in a lower court.^[50]

The constitutional upshot involved the question of whether the Supreme Court had jurisdiction to hear the case.^[51] The Judiciary Human activity of 1789 gave the Supreme Court original jurisdiction in cases involving writs of mandamus. And then, nether the Judiciary Human activity, the Supreme Courtroom would have had jurisdiction to hear Marbury's case. Nevertheless, the Constitution describes the cases in which the Supreme Court has original jurisdiction, and does not include mandamus cases.^[52] The Judiciary Act therefore attempted to give the Supreme Court jurisdiction that was non "warranted past the Constitution."^[53]

Marshall's opinion stated that in the Constitution, the people established a government of limited powers: "The powers of the Legislature are defined and limited; and that those limits may non be mistaken or forgotten, the Constitution is written." The limits established in the Constitution would be meaningless "if these limits may at any time be passed by those intended to exist restrained." Marshall observed that the Constitution is "the fundamental and paramount law of the nation", and that it cannot exist contradistinct by an ordinary human activity of the legislature. Therefore, "an act of the Legislature repugnant to the Constitution is void."^[54]

Marshall and so discussed the role of the courts, which is at the heart of the doctrine of judicial review. It would be an "applesauce", said Marshall, to require the courts to apply a law that is void. Rather, it is the inherent duty of the courts to interpret and apply the Constitution, and to determine whether there is a conflict betwixt a statute and the Constitution:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that dominion. If ii laws conflict with each other, the Courts must decide on the functioning of each.

Then, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, and then that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the instance. This is of the very essence of judicial duty.

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 utilize. ...^[55]

Marshall stated that the courts are authorized past the provisions of the Constitution itself to "expect into" the Constitution, that is, to interpret and use it, and that they have the duty to reject to enforce whatever laws that are contrary to the Constitution. Specifically, Article Iii provides that the federal judicial ability "is extended to all cases arising nether the Constitution." Article Vi requires judges to take an oath "to support this Constitution." Article Six also states that only laws "made in pursuance of the Constitution" are the police force of the land. Marshall ended: "Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a police force repugnant to the Constitution is void, and that courts, besides every bit other departments, are bound by that instrument."^[56]

Marbury long has been regarded as the seminal case with respect to the doctrine of judicial review. Some scholars have suggested that Marshall's opinion in Marbury essentially created judicial review. In his book The Least Dangerous Branch, Professor Alexander Bickel wrote:

[T]he institution of the judiciary needed to exist summoned up out of the constitutional vapors, shaped, and maintained. And the Slap-up Chief Justice, John Marshall—not single-handed, only first and foremost—was at that place to do it and did. If whatsoever social procedure can exist said to have been 'done' at a given time, and by a given act, it is Marshall's achievement. The fourth dimension was 1803; the deed was the decision in the case of Marbury v. Madison.^[57]

Other scholars view this equally an overstatement, and argue that Marbury was decided in a context in which judicial review already was a familiar concept. These scholars point to the facts showing that judicial review was best-selling by the Constitution's framers, was explained in the Federalist Papers and in the ratification debates, and was used by both country and federal courts for more than 20 years before Marbury. Including the Supreme Court in Hylton v. United states of america. One scholar concluded: "[B]efore Marbury, judicial review had gained wide back up."^[58]

Judicial review after Marbury [edit]

Marbury was the point at which the Supreme Court adopted a monitoring function over authorities actions.^[59] Later on the Court exercised its power of judicial review in Marbury, information technology avoided hit down a federal statute during the next fifty years. The court would not do so over again until Dred Scott 5. Sandford, sixty U.S. (19 How.) 393 (1857).^[threescore]

However, the Supreme Court did practise judicial review in other contexts. In item, the Court struck down a number of state statutes that were contrary to the Constitution. The first case in which the Supreme Court struck down a country statute every bit unconstitutional was Fletcher v. Peck, ten U.Southward. (6 Cranch) 87 (1810).^[61]

In a few cases, state courts took the position that their judgments were final and were not subject to review past the Supreme Courtroom. They argued that the Constitution did non requite the Supreme Courtroom the say-so to review country court decisions. They asserted that the Judiciary Act of 1789, which provided that the Supreme Courtroom could hear sure appeals from land courts, was unconstitutional. In outcome, these state courts were asserting that the principle of judicial review did not extend to allow federal review of land court decisions. This would have left the states free to prefer their ain interpretations of the Constitution.

The Supreme Court rejected this argument. In Martin v. Hunter's Lessee, fourteen U.Due south. (1 Wheat.) 304 (1816), the Courtroom held that nether Article III, the federal courts accept jurisdiction to hear all cases arising under the Constitution and laws of the U.s., and that the Supreme Court has appellate jurisdiction in all such cases, whether those cases are filed in state or federal courts. The Court issued another determination to the same upshot in the context of a criminal case, Cohens 5. Virginia, 19 U.Due south. (6 Wheat.) 264 (1821). It is at present well established that the Supreme Court may review decisions of state courts that involve federal law.

The Supreme Courtroom besides has reviewed actions of the federal executive branch to determine whether those actions were authorized by acts of Congress or were beyond the authority granted by Congress.^[62]

Judicial review is now well established as a cornerstone of ramble police. As of September 2017, the United States Supreme Court had held unconstitutional portions or the entirety of some 182 Acts of the U.South. Congress, the near recently in the Supreme Court's June 2017 Matal v. Tam and 2019 Iancu v. Brunetti decisions hitting down a portion of July 1946'south Lanham Act every bit they infringe on Liberty of Spoken language.

Criticism of judicial review [edit]

Although judicial review has now go an established function of constitutional law in the United States, in that location are some who disagree with the doctrine.

One of the outset critics of judicial review was Richard Dobbs Spaight, a signer of the Constitution. In a correspondence with Supreme Court Justice James Iredell, Spaight wrote of his disapproval of the doctrine:^[63] ^[64] ^[65]

I do not pretend to vindicate the law, which has been the subject of controversy: it is immaterial what law they have declared void; it is their usurpation of the authority to do it, that I complain of, as I exercise most positively deny that they accept any such power; nor can they find whatever affair in the Constitution, either direct or impliedly, that will back up them, or give them whatsoever color of right to exercise that authority.^[66]

At the Constitutional Convention, neither proponents nor opponents of judicial review disputed that whatever regime based on a written constitution requires some mechanism to prevent laws that violate that constitution from existence made and enforced. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws any, would exist the supreme arm of authorities (the British doctrine of parliamentary sovereignty). The delegates at the Convention differed with respect to the question of whether Congress or the judiciary should make determinations regarding constitutionality of statutes. Hamilton addressed this in Federalist No. 78, in which he explained the reasons that the federal judiciary has the function of reviewing the constitutionality of statutes:

If it be said that the legislative torso are themselves the constitutional judges of their ain powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot exist the natural presumption, where it is not to be collected from whatever particular provisions in the Constitution. It is not otherwise to exist 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 torso between the people and the legislature, in club, amongst other things, to go on the latter inside the limits assigned to their authority.^[67]

Since the adoption of the Constitution, some take argued that the power of judicial review gives the courts the ability to impose their ain views of the law, without an acceptable check from whatsoever other branch of government. Robert Yates, a delegate to the Ramble Convention from New York, argued during the ratification process in the Anti-Federalist Papers that the courts would use the ability of judicial review loosely to impose their views about the "spirit" of the Constitution:

[I]due north their decisions they will non confine themselves to whatever fixed or established rules, simply 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 accept the force of police force; because at that place is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this courtroom there is no appeal.^[68]

In 1820, Thomas Jefferson expressed his opposition to the doctrine of judicial review:

Y'all seem ... to consider the judges every bit the ultimate arbiters of all ramble questions; a very dangerous doctrine indeed, and ane which would place u.s.a. under the despotism of an oligarchy. Our judges are as honest every bit other men, and not more and so. They accept, with others, the same passions for political party, for ability, and the privilege of their corps. ... Their power [is] the more dangerous as they are in role for life, and not responsible, every bit the other functionaries are, to the constituent command. 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. Information technology has more than wisely made all the departments co-equal and co-sovereign within themselves.^[69]

In 1861, Abraham Lincoln touched upon the same field of study, during his first countdown address:

[T]he candid denizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably stock-still by decisions of the Supreme Court, the instant they are made in ordinary litigation betwixt parties in personal actions the people will accept ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is in that location in this view whatsoever assault upon the court or the judges. It is a duty from which they may non shrink to determine cases properly brought before them, and information technology is no mistake of theirs if others seek to turn their decisions to political purposes.^[70]

Lincoln was alluding hither to the case of Dred Scott 5. Sandford, in which the Court had struck down a federal statute for the first time since Marbury v. Madison.^[60]

It has been argued that the judiciary is not the only branch of government that may interpret the meaning of the Constitution.^{[ who? ]} Commodity 6 requires federal and state officeholders to exist jump "by Oath or Affirmation, to support this Constitution." It has been argued that such officials may follow their own interpretations of the Constitution, at least until those interpretations take been tested in courtroom.

Some accept argued that judicial review exclusively by the federal courts is unconstitutional^[71] based on two arguments. First, the power of judicial review is not expressly delegated to the federal courts in the Constitution. The 10th Amendment reserves to the states (or to the people) those powers not expressly delegated to the federal government. The 2nd statement is that the states alone have the ability to ratify changes to the "supreme law" (the U.S. Constitution), and each state's understanding of the language of the amendment therefore becomes germane to its implementation and issue, making information technology necessary that the states play some role in interpreting its meaning. Under this theory, allowing merely federal courts to definitively carry judicial review of federal law allows the national government to interpret its own restrictions as it sees fit, with no meaningful input from the ratifying, that is, validating power.

Standard of review [edit]

In the United states of america, unconstitutionality is the only ground for a federal courtroom 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 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 authorization, under the 25th section of the judiciary act, to re-examine and to reverse the judgement of the supreme court of Pennsylvania in the nowadays case.^[72]

If a state statute conflicts with a valid federal statute, then courts may strike down the state statute as an unstatutable^[73] violation of the Supremacy Clause. But a federal court may not strike down a statute absent-minded a violation of federal constabulary 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. Anti-federalists 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 fabricated past the general legislature not repugnant to the constitution."^[74]

These principles—that federal statutes tin 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 Bricklayer explained during the constitutional convention that judges "could declare an unconstitutional police force void. Simply with regard to every law, nevertheless unjust, oppressive or pernicious, which did not come plainly nether this clarification, they would be nether the necessity every bit Judges to requite it a costless grade."^[25]

For a number of years, the courts were relatively deferential to Congress. Justice Washington put it this way, in an 1827 instance: "Information technology is but a decent respect to the wisdom, integrity, and patriotism of the legislative trunk, 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."^[75]

Although judges normally adhered to this principle that a statute could only be accounted unconstitutional in instance of a clear contradiction until the twentieth century, this presumption of constitutionality weakened somewhat during the twentieth century, as exemplified past the Supreme Court's famous footnote four in United states of america v. Carolene Products Co., 304 U.Southward. 144 (1938), which suggested that statutes may exist subjected to closer scrutiny in certain types of cases. However, the federal courts have not departed from the principle that courts may only strike downwards statutes for unconstitutionality.

Of course, the practical implication of this principle is that a court cannot strike downward a statute, even if it recognizes that the statute is obviously poorly drafted, irrational, or arises from legislators' decadent motives, unless the flaw in the statute rises to the level of a articulate ramble violation. In 2008, Justice John Paul Stevens reaffirmed this signal in a concurring opinion: "[A]s I recollect my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'"^[76]

In the federal system, courts may only make up one's mind actual cases or controversies; it is non possible to request the federal courts to review a law without at to the lowest degree ane political party having legal standing to engage in a lawsuit. This principle means that courts sometimes exercise not practise their power of review, even when a police is seemingly unconstitutional, for want of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court, legislation may exist referred in certain circumstances by the legislature or by the executive for an informational ruling on its constitutionality prior to its enactment (or enforcement).

The U.S. Supreme Court seeks to avert reviewing the Constitutionality of an deed where the case before it could be decided on other grounds, an attitude and practice exemplifying judicial restraint. Justice Brandeis framed information technology thus (citations omitted):^[77]

The Courtroom developed, for its own governance in the cases inside its jurisdiction, a serial of rules under which it has avoided passing upon a large role of all the ramble questions pressed upon information technology for decision. They are:

The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining considering to decide such questions is legitimate only in the last resort, and every bit a necessity in the determination of existent, earnest, and vital controversy between individuals. Information technology never was the idea that, by ways 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.

The Court will not conceptualize a question of constitutional law in advance of the necessity of deciding it. It is not the addiction of the court to make up one's mind questions of a constitutional nature unless absolutely necessary to a decision of the case.

The Court will not formulate a dominion of constitutional law broader than required by the precise facts it applies to.

The Court will not pass upon a ramble question although properly presented by the record, if in that location is besides present another ground upon which the case may be disposed of ... If a instance can be decided on either of two grounds, ane involving a ramble question, the other a question of statutory construction or general police force, the Court will decide merely the latter.

The Court volition non laissez passer upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.

The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

When the validity of an deed of the Congress is fatigued in question, and fifty-fifty 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 past which the question may exist avoided.

Laws limiting judicial review [edit]

Although the Supreme Courtroom continues to review the constitutionality of statutes, Congress and united states of america retain some power to influence what cases come earlier the Court. For case, the Constitution at Article Three, Section 2, gives Congress ability to brand exceptions to the Supreme Court'due south appellate jurisdiction. The Supreme Court has historically acknowledged that its appellate jurisdiction is defined by Congress, and thus Congress may have power to make some legislative or executive deportment unreviewable. This is known as jurisdiction stripping.

Another manner for Congress to limit judicial review was tried in January 1868, when a pecker was proposed requiring a two-thirds majority of the Court in social club to deem any Act of Congress unconstitutional.^[78] The pecker was canonical by the House, 116 to 39.^[79] That measure died in the Senate, partly because the nib was unclear about how the bill'south own constitutionality would exist decided.^[eighty]

Many other bills have been proposed in Congress that would require a supermajority in lodge for the justices to practice judicial review.^[81] During the early years of the U.s.a., a two-thirds majority was necessary for the Supreme Court to exercise judicial review; considering the Court then consisted of six members, a uncomplicated majority and a two-thirds majority both required iv votes.^[82] Currently, the constitutions of two states crave a supermajority of supreme court justices in order to exercise judicial review: Nebraska (five out of seven justices) and North Dakota (four out of v justices).^[81]

Administrative review [edit]

The process for judicial review of federal administrative regulation in the U.s.a. is set forth by the Administrative Procedure Human activity although the courts have ruled such as in Bivens v. Six Unknown Named Agents ^[83] that a person may bring a example on the grounds of an implied cause of activeness when no statutory procedure exists.

Notes [edit]

^ "The Establishment of Judicial Review". Findlaw.
^ Congress, Us. "United states of america Statutes at Large, Volume i" – via Wikisource.
^ Marbury v. Madison, v US (1 Cranch) 137 (1803).
^ "Marbury v. Madison – John Marshall – 1803 – AMDOCS: Documents for the Written report of American History".
^ Run across Congressional Research Services' The Constitution of the Usa, Assay And Interpretation, 2013 Supplement, pp. 49–l.
^ "Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court". U.Southward. Congress. Retrieved February 22, 2021.
^ Prakash, Saikrishna B.; Yoo, John C. (2003). "The Origins of Judicial Review". The University of Chicago Law Review. 70 (3): 887–982. doi:ten.2307/1600662. ISSN 0041-9494. JSTOR 1600662.
^ Bayard 5. Singleton , 1 N.C. 5 (N.C. 1787).
^ Brown, Andrew. "Bayard v. Singleton: Northward Carolina equally the Pioneer of Judicial Review". North Carolina Institute of Constitutional Police force. Archived from the original on 2019-08-sixteen. Retrieved 2019-08-16 .
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Police Review, pp. 933–934.
^ Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Law Review, p. 936.
^ The Judicial Branch of State Regime: People, Process, and Politics
^ John Marshall: Definer of a Nation
^ The People Themselves - Popular Constitutionalism and Judicial Review, Larry Kramer
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review p. 939.
^ For example, James Madison referred to "the judges who refused to execute an unconstitutional law" in a Rhode Island case. Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. two. New Haven: Yale University Press. p. 28. Elbridge Gerry noted that "in some states, the judges had actually set aside laws, as existence confronting the constitution." Farrand, The Records of the Federal Convention of 1787, vol. 1, p. 97.
^ Corwin, Edward S. (1929). "The "Higher Police force" Background of American Constitutional Police". Harvard Police Review. Harvard Law Review Association. 42 (3). doi:10.2307/1330694. ISSN 0017-811X. JSTOR 1330694.
^ While the Constitution does not explicitly authorize judicial review, it likewise does not explicitly prohibit it, as did the Virginia Constitution of 1776. That Virginia Constitution said: "All power of suspending laws, or the execution of laws, by whatsoever potency, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised." Virginia Constitution of 1776 Archived 2008-06-04 at the Wayback Machine via Avalon Projection at Yale Constabulary Schoolhouse.
^ Come across Marbury v. Madison, 5 U.Southward. at 175–78.
^ See Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 1. New Haven: Yale Academy Press. p. 97.
^ Farrand, The Records of the Federal Convention of 1787, vol. two, p. 76. Nathaniel Gorham besides made comments forth these lines. See Rakove, Jack N. (1997). "The Origins of Judicial Review: A Plea for New Contexts". Stanford Police force Review. 49 (5): 1031–64. doi:10.2307/1229247. ISSN 0038-9765. JSTOR 1229247.
^ Delegates making these comments included Rufus King, Caleb Strong, Nathaniel Gorham, and John Rutledge. Run across Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police Review at 1058.
^ The council of revision proposed in the Virginia Plan ultimately morphed into the Presidential veto. In its final form, the executive lonely would do the veto, without participation by the federal judiciary.
^ Ibid., p. 93. Delegates approving of judicial review also included James Wilson and Gouverneur Morris, among others. Run across Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review at 941–43.
^ ^a ^b ^c Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Haven: Yale University Press. p. 78.
^ Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Law Review, p. 952. The 2 delegates who disapproved judicial review, John Dickinson and John Mercer, did non propose a provision prohibiting judicial review. During the country ratification conventions, they best-selling that nether the terminal Constitution, the courts would have the power of judicial review. Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, p. 943.
^ Raoul Berger found that twenty-six Convention delegates supported Constitution review, with six opposed. Berger, Raoul (1969). Congress v. The Supreme Court . Harvard University Press. p. 104. Charles Beard counted twenty-five delegates in favor of judicial review and three against. Beard, Charles (1962) [1912]. The Supreme Court and the Constitution . Prentice Hall. p. 69.
^ Melvin, Frank, "The Judicial Bulwark of the Constitution", 8 American Political Science Review 167, 185–195 (1914).
^ See Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary Review at pp. 931–32.
^ James Madison at one signal said that the courts' ability of judicial review should exist limited to cases of a judiciary nature: "He doubted whether it was not going likewise far to extend the jurisdiction of the Court generally to cases arising nether 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." Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Haven: Yale University Press. p. 430. Madison wanted to analyze that the courts would not take a free-floating power to declare unconstitutional any police that was passed; rather, the courts would be able to dominion on constitutionality of laws only when those laws were properly presented to them in the context of a court case that came before them. See Burr, Charles, "Unconstitutional Laws and the Federal Judicial Power", 60 U. Pennsylvania Law Review 624, 630 (1912). No change in the language was made in response to Madison'due south comment.
^ Come across Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Police Review at p. 965.
^ Elliot, Jonathan (1863) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 2. Philadelphia: Lippincott. p. 489.
^ Elliot, Jonathan (1863) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 2. Philadelphia: Lippincott. p. 196.
^ See Prakash and Yoo, "The Origins of Judicial Review", lxx U. of Chicago Law Review at pp. 973–75.
^ Barnett, Randy, "The Original Meaning of Judicial Ability", 12 Supreme Courtroom Economical Review 115, 138 (2004).
^ Hamilton, Alexander. Federalist No. 78 (June 14, 1788). Run into likewise Federalist No. 81, which says: "[T]he Constitution ought to be the standard of construction for the laws, and ... wherever there is an evident opposition, the laws ought to requite identify to the Constitution." Federalist No. 81 (June 28, 1788)
^ Federalist No. 80 (June 21, 1788)
^ Federalist No. 82 (July 2, 1788)
^ "The Trouble of Judicial Review – Teaching American History". Archived from the original on 2011-06-xxx. Retrieved 2011-05-11 .
^ Treanor, William Michael (2005). "Judicial Review earlier "Marbury"". Stanford Constabulary Review. 58 (2): 455–562. ISSN 0038-9765. JSTOR 40040272.
^ Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review, p. 458.
^ 5 of the six Supreme Court justices at that time had sat equally circuit judges in the three circuit court cases that were appealed. All 5 of them had institute the statute unconstitutional in their chapters every bit excursion judges.
^ There was no official written report of the case. The case is described in a annotation at the terminate of the Supreme Courtroom's decision in United states of america 5. Ferreira, 54 U.S. (13 How.) 40 (1851).
^ Professor Jack Rakove wrote: "Hylton v. United States was manifestly a case of judicial review of the constitutionality of legislation, in an area of governance and public policy far more sensitive than that exposed past Marbury, and it was a case whose implications observers seemed to grasp." See Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police force Review at 1039–41.
^ Justice Chase's stance stated: "[I]t is unnecessary, at this time, for me to decide, whether this courtroom, constitutionally possesses the power to declare an deed of congress void, on the ground of its being made opposite to, and in violation of, the constitution."
^ See Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review, p. 547.
^ Hunt's statement well-nigh decisions by judges in the circuits referred to Hayburn's Instance.
^ Seven states formally rejected the Kentucky and Virginia resolutions and transmitted their rejections to Kentucky and Virginia (Delaware, Massachusetts, New York, Connecticut, Rhode Island, New Hampshire, and Vermont). See Elliot, Jonathan (1907) [1836]. Debates in the Several Country Conventions on the Adoption of the Federal Constitution. Vol. 4 (expanded 2d ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-9. . Three states passed resolutions expressing disapproval but did not transmit formal responses to Kentucky and Virginia (Maryland, Pennsylvania, and New Jersey). Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244. . The other four states took no action.
^ Elliot, Jonathan (1907) [1836]. "Answers of the Several Land Legislatures: Land of Vermont". Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 4 (expanded 2nd ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-9. . The other states taking the position that the constitutionality of federal laws is a question for the federal courts, not us, were New York, Massachusetts, Rhode Isle, New Hampshire, and Pennsylvania. The Governor of Delaware and a Committee of the Maryland legislature too took this position. The remaining states did not address this issue. Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244.
^ For a more detailed clarification of the case, see Marbury v. Madison.
^ There were several non-constitutional bug, including whether Marbury was entitled to the commission and whether a writ of mandamus was the appropriate remedy. The Court's opinion dealt with those issues first, finding that Marbury was entitled to the commission and that mandamus was a proper remedy. See Marbury v. Madison.
^ Article Iii of the Constitution says: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a country shall be party, the Supreme Court shall take original jurisdiction. In all the other cases ... the Supreme Court shall have appellate jurisdiction."
^ Marbury, 5 U.South. at 175–176.
^ Marbury, 5 U.S., pp. 176–177.
^ Marbury, 5 U.Due south., pp. 177–178.
^ Marbury, 5 U.S., pp. 178–180.
^ Bickel, Alexander (1962). The Least Unsafe Branch: The Supreme Court at the Bar of Politics . Indianapolis: Bobbs-Merrill. p. i. ISBN9780300032994.
^ Treanor, "Judicial Review Earlier Marbury", 58 Stanford Law Review at 555. Meet also Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police Review at 1035–41.
^ Laura Langer, Judicial Review in Land Supreme Courts: A Comparative Study (Albany: Country University of New York Press, 2002), p. four
^ ^a ^b See Menez, Joseph et al., Summaries of Leading Cases on the Constitution, page 125 (2004).
^ The Supreme Court subsequently decided that a number of other cases finding state statutes unconstitutional. See, for case, Sturges 5. Crowninshield, 17 U.Southward. (4 Wheat.) 122 (1819), McCulloch v. Maryland, 17 U.S. (four Wheat.) 316 (1819), and Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
^ Run into Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) (the "Flight Fish case").
^ The Supreme Court and the Constitution, Charles A. Beard, pp. lxx-71
^ Judicial Review and Not-enforcement at the Founding, University of Pennsylvania, p. 496
^ Academy of Pennsylvania Law Review and American Law Annals
^ Corwin on the Constitution, Edward Samuel Corwin
^ Hamilton, Alexander. Federalist #78 (June 14, 1788).
^ Yates, Robert (writing every bit "Brutus"). Anti-Federalist Papers(31 January 1788) Archived 17 Baronial 2007 at the Wayback Machine.
^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter of the alphabet to William Jarvis (September 28, 1820).
^ Lincoln, Abraham. First Inaugural Address Archived 2007-08-17 at the Wayback Machine (March 4, 1861).
^ See W.Due west. Crosskey, Politics and the Constitution in the History of the United States (Chicago: 1953), chs. 27–29, with which compare Hart, Book Review, 67 Harv. 50. Rev. 1456 (1954). A cursory review of the debate on the subject is Westin, "Introduction: Charles Beard and American Debate over Judicial Review, 1790–1961", in: C. Beard, The Supreme Courtroom and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), one–34, and bibliography at 133–149. See more at: http://constitution.findlaw.com/article3/annotation13.html#f576
^ Satterlee v. Matthewson, 27 U.Due south. 380 (1829).
^ "Unstatutable – Definition and More than from the Gratuitous Merriam-Webster Dictionary". Merriam-Webster . Retrieved 8 May 2013.
^ "Commodity 3, Section 2, Clause 2: Brutus, no. 14".
^ Ogden v. Saunders, 25 U.Southward. 213 (1827).
^ New York State Bd. of Elections v. Lopez Torres, 552 U.South. ___, ___ (2008) (Stevens, J., concurring).
^ Ashwander five. Tennessee Valley Authority, 297 U.S. 288, 346–9 (1936) (Brandeis, concurring) (citing cases)
^ Schwartz, Bernard. A History of the Supreme Court, page 141 (Oxford University Press United states of america 1995).
^ McPherson, Edward. A political manual for 1868, pages 350–351 (Philp & Solomons 1868).
^ Goldstone, Lawrence. Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865–1903, pages 55–56 (Bloomsbury Publishing U.s. 2011).
^ ^a ^b Caminker, Evan. "Thayerian Deference to Congress and Supreme Courtroom Supermajority Rule: Lessons From the Past Archived 2012-03-09 at the Wayback Machine", 78 Indiana Law Journal 73 (2003).
^ Nackenoff, Ballad. "Constitutional Reforms to Enhance Democratic Participation and Deliberation: Not All Clearly Trigger the Article V Amendment Process Archived 2012-03-xix at the Wayback Car", 67 Maryland Law Review 62, 65 (2007).
^ 403 U.Due south. 388 (1971).