National Paralegal College

Judicial Review

by Stephen Haas


Judicial review is the power of the courts to declare that acts of the other branches of government are unconstitutional, and thus unenforceable. For example if Congress were to pass a law banning newspapers from printing information about certain political matters, courts would have the authority to rule that this law violates the First Amendment, and is therefore unconstitutional. State courts also have the power to strike down their own state’s laws based on the state or federal constitutions.

Today, we take judicial review for granted. In fact, it is one of the main characteristics of government in the United States. On an almost daily basis, court decisions come down from around the country striking down state and federal rules as being unconstitutional. Some of the topics of these laws in recent times include same sex marriage bans, voter identification laws, gun restrictions, government surveillance programs and restrictions on abortion.

Other countries have also gotten in on the concept of judicial review. A Romanian court recently ruled that a law granting immunity to lawmakers and banning certain types of speech against public officials was unconstitutional. Greek courts have ruled that certain wage cuts for public employees are unconstitutional. The legal system of the European Union specifically gives the Court of Justice of the European Union the power of judicial review. The power of judicial review is also afforded to the courts of Canada, Japan, India and other countries. Clearly, the world trend is in favor of giving courts the power to review the acts of the other branches of government.

However, it was not always so. In fact, the idea that the courts have the power to strike down laws duly passed by the legislature is not much older than is the United States. In the civil law system, judges are seen as those who apply the law, with no power to create (or destroy) legal principles. In the (British) common law system, on which American law is based, judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. However, as Britain has no Constitution, the principle that a court could strike down a law as being unconstitutional was not relevant in Britain. Moreover, even to this day, Britain has an attachment to the idea of legislative supremacy. Therefore, judges in the United Kingdom do not have the power to strike down legislation.


The principle of judicial review has its roots in the principle of separation of powers. Separation of powers was introduced by Baron de Montesquieu in the 17th century, but judicial review did not arise from it in force until a century later.

The principle of judicial review appeared in Federalist Paper #78, authored by Alexander Hamilton. Hamilton first disposed of the idea that legislatures should be left to enforce the Constitution upon themselves:

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

Hamilton further opined that:

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… [W]here 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.

He then came out and explicitly argued for the power of judicial review:

Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

The Marbury Decision

In spite of Hamilton’s support of the concept, the power of judicial review was not written into the United States Constitution. Article III of the Constitution, in granting power to the judiciary, extends judicial power to various types of cases (such as those arising under federal law), but makes no comment as to whether a legislative or executive action could be struck down. Instead, the American precedent for judicial review comes from the Supreme Court itself, in the landmark decision of Marbury v. Madison, 5 U.S. 137 (1803).

The story of Marbury is itself a fascinating study of political maneuvering. When Thomas Jefferson was elected as third President in a victory over John Adams, he was the first President who was not a member of the Federalist party. He wanted to purge Federalists from the judiciary by appointing non-Federalists to the bench at every opportunity. The Federalist judges were to then fade away by attrition.

During his last hours in office, Adams appointed several federal judges, including William Marbury. The commission had not yet been delivered when Jefferson was sworn in and Secretary of State James Madison refused to deliver the commissions to the judicial appointments of Adams. Marbury and others sued in the Supreme Court, seeking a writ of mandamus: an order to compel Madison to deliver the commissions duly created by Adams while he was President.

While it was fairly apparent to all that the commission was perfectly valid and should have been delivered, Supreme Court Chief Justice John Marshall worried that a direct conflict between the Court and newly elected President Jefferson could have destabilizing consequences for the yet young and experimental government. Nevertheless, Marshall could not very well rule that the commissions ought not to be delivered when it was apparent to most that they were proper.

Instead, Marshall and the Court decided the case on procedural grounds. The entire reason the case was in the Supreme Court in the first place was that the Judiciary Act of 1789 (Section 13) allowed the Court the power to issue writs of mandamus, such as the one being sought.

However, Article III, Section 2, Clause 2 of the Constitution says:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a 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.

In other words, the Supreme Court can only handle cases initially brought in the Supreme Court when those cases affect ambassadors, foreign ministers or consuls and when a state is a party. Otherwise, you can appeal your case to the Supreme Court, but you cannot bring it there in the first instance. As Marbury was not an ambassador, foreign minister or consul and a state was not a party to the case, the Constitution did not allow the Supreme Court to claim original jurisdiction over the case. Therefore, Marshall and the Court ruled, whether Jefferson and Madison acted properly in denying Marbury’s commission cannot be decided by the Court. The case had to be dismissed since the Court had no jurisdiction over the case. The Judiciary Act that allowed the Court to issue a writ in this case was unconstitutional and therefore void.

While the result favored Jefferson (Marbury never did become a federal judge), the case is remembered for the last point. It was the first time that a court of the United States had struck down a statute as being unconstitutional.

Expansion After Marbury

Since Marbury, the Supreme Court has greatly expanded the power of judicial review. In Martin v. Hunter's Lessee, 14 U.S. 304 (1816), the Court ruled that it may review state court civil cases, if they arise under federal or constitutional law. A few years later, it determined the same for state court criminal cases. Cohens v. Virginia, 19 U.S. 264 (1821). In 1958, the Supreme Court extended judicial review to mean that the Supreme Court was empowered to overrule any state action, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper v. Aaron, 358 U.S. 1 (1958). Today, there is no serious opposition to the principle that all courts, not just the Supreme Court (and indeed, not just federal courts) are empowered to strike down legislation or executive actions that are inconsistent with the federal or applicable state Constitution.

Judicial Review: Impact

It is difficult to overstate the effect that Marbury and its progeny have had on the American legal system. A comprehensive list of important cases that have struck down federal or state statutes would easily reach four digits. But a recap of some of the most important historical Court decisions should serve to demonstrate the impact of judicial review.

In Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court struck down state laws establishing separate public schools for black and white students on the grounds that they violated the “equal protection” clause of the Fourteenth Amendment.

In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court forced states to provide counsel in criminal cases for indigent defendants who were being tried for commission of a felony and could not afford their own counsel.

In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court struck down a Virginia statute that prohibited interracial marriage, also on equal protection grounds.

In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court ruled that state criminal laws that punished people for incitement could not be applied unless the speech in question was intended to and likely to, cause people to engage in imminent lawless action.

In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court temporarily halted the death penalty in the United States by ruling that state death penalty statutes were not applied consistently or fairly enough to pass muster under the Eighth Amendment.

In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court struck down state laws that made abortion illegal. Though Roe and many later cases have walked a tight line in determining exactly how far the right to choose an abortion extends, the basic idea that the right to choose an abortion is protected as part of the right to privacy still stands as the law of the land.

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court struck down spending limits on individuals or groups who wished to use their own money to promote a political candidate or message (though it upheld limitations on how much could be contributed directly to a campaign) on First Amendment grounds.

In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court struck down certain types of race-based preferences in state college admissions as violating the equal protection clause.

In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court struck down sodomy laws in fourteen states, making same-sex sexual activity legal in every U.S. state.

In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Supreme Court struck down a federal election law that restricted spending on election advertising by corporations and other associations.

National Federation of Independent Business v. Sebelius (2012) (the “Obamacare” decision) was famous for upholding most of the Patient Protection and Affordable Care Act. However, it also struck down an element of that law that threatened to withhold Medicaid funding from states that did not cooperate with the law, on the grounds that this was an unconstitutional violation of state sovereignty.

Though some of these decisions remain controversial, none of these decisions would have been possible without judicial review. In every case (and countless others), the Court used its power of judicial review to declare that an act by a federal or state government was null and void because it contradicted a constitutional provision. It is this power that truly makes the courts a co-equal branch of government with the executive and legislative branches and allows it to defend the rights of the people against potential intrusions by those other branches.

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