Article III, Section 1:

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 Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Judicial review is one of the distinctive features of United States constitutional law. However, the Constitution does not expressly grant the federal courts the power to declare government actions unconstitutional. Instead, the Supreme Court established the doctrine in the 1803 case Marbury v. Madison.1

Marbury arose from a dispute over a government commission. Plaintiff William Marbury and others were appointed as justices of the peace while President John Adams was in office, and their commissions were signed but not delivered. When President Thomas Jefferson took office, the commissions were withheld on Jefferson’s express instruction. Marbury sued Secretary of State James Madison in the Supreme Court, seeking a writ of mandamus compelling delivery of the commission. He invoked the Supreme Court’s original jurisdiction under Section 13 of the Judiciary Act of 1789.2 The Supreme Court, in an opinion by Chief Justice John Marshall, agreed with Marbury that Section 13 authorized the Court to issue writs of mandamus in suits in its original jurisdiction. However, the Court declined to issue the writ, concluding instead that the Section 13 authorization was an attempt by Congress to expand the Court’s original jurisdiction beyond its constitutional limits and was therefore void.3

Chief Justice Marshall began his discussion of judicial review by opining, “The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest.” 4 In answering the question in the affirmative, Chief Justice Marshall first recognized certain fundamental principles. The people had come together to establish a government. They provided for its organization, assigned powers to its various departments, and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose “if these limits may, at any time, be passed by those intended to be restrained[.]” 5 Because the Constitution is “a superior paramount law, unchangeable by ordinary means, . . . a legislative act contrary to the constitution is not law.” 6

The Chief Justice then asked, “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?” 7 The answer, thought the Chief Justice, was clear: “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 rule. If two laws conflict with each other, the courts must decide on the operation of each.” 8 If a statute and the Constitution both apply to a single case, and conflict with one another, “the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” 9 Because “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.” 10 To declare otherwise, Chief Justice Marshall said, would be to permit the legislature to “pass[ ] at pleasure the limits imposed on its powers by the Constitution.” 11

The Chief Justice then turned from the philosophical justification for judicial review as arising from the very concept of a written constitution, to specific clauses of the Constitution. The judicial power, he observed, was extended to “all cases arising under the constitution.” 12 It was “too extravagant to be maintained that the Framers had intended that a case arising under the constitution should be decided without examining the instrument under which it arises.” 13 Suppose, he said, that Congress laid a duty on an article exported from a state or passed a bill of attainder or an ex post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated them to support the Constitution and to enforce such laws would violate the oath.14 Finally, the Chief Justice noted that the Supremacy Clause15 gave the Constitution precedence over laws and treaties, providing that only laws “which shall be made in pursuance of the constitution shall be the supreme law of the land.” 16

Marbury v. Madison involved federal court review of a federal statute. Since the decision in Marbury, the Supreme Court has exercised its power of judicial review to examine the constitutionality of state statutes and federal and state executive actions.17 State courts also have the authority to hear federal constitutional claims,18 and may consider the validity of state action under the federal Constitution, subject to discretionary review by the U.S. Supreme Court.19

As Marbury's doctrine of judicial review became settled law in federal court, state courts also embraced the doctrine, with state court judicial review under state constitutions established in all states by 1850.20 The decision in Marbury v. Madison has never been disturbed. Although commentators have debated the merits and scope of judicial review throughout the Nation’s history,21 the Supreme Court continues to review the constitutionality of statutes and other government actions.22

Footnotes

1

5 U.S. (1 Cr.) 137 (1803).

2

1 Stat. 73, 80.

3

5 U.S. (1 Cr.) at 173–80.

4

Id. at 176.

5

Id.

6

Id. at 177.

7

Id.

8

Id.

9

Id. at 178.

10

Id. at 177–78.

11

Id. at 178.

12

Id. at 178 (citing U.S. Const. art. III, § 2, cl. 1).

13

Id. at 179.

14

Id. at 179–80.

15

U.S. Const. art. VI, cl. 2.

16

5 U.S. (1 Cr.) at 180.

17

See, e.g., Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810); Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804); Cooper v. Aaron, 358 U.S. 1 (1958).

18

See ArtIII.S1.6.4 State Court Jurisdiction to Enforce Federal Law.

19

See, e.g., New York Times v. Sullivan, 376 U.S. 254 (1964) (U.S. Supreme Court case involving a First Amendment challenge to a state law libel claim that was originally litigated in the Alabama courts); Lawrence v. Texas, 539 U.S. 558 (2003) (challenge to a state law banning consensual sexual activity between people of the same sex before the U.S. Supreme Court on appeal from a state criminal conviction).

20

E. Corwin, The Doctrine of Judicial Review 75–78 (1914); Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitution Theory in the State, 1790–1860, 120 U. Pa. L. Rev. 1166 (1972).

21

See, e.g., G. Gunther, Constitutional Law 1–38 (12th ed. 1991); For expositions on the legitimacy of judicial review, see L. Hand, The Bill of Rights (1958); H. Wechsler, Principles, Politics, and Fundamental Law: Selected Essays 1–15 (1961); A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1–33 (1962); R. Berger, Congress v. The Supreme Court (1969). For an extensive historical attack on judicial review, see 2 W. Crosskey, Politics and the Constitution in the History of the United States chs. 27–29 (1953), with which compare Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate Over Judicial Review, 1790–1961, in C. Beard, The Supreme Court and the Constitution 1–34 (1962 reissue of 1938 ed.), and bibliography at 133–149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.

22

See, e.g., Iancu v. Brunetti, 139 S. Ct. 2294 (2019); Matal v. Tam, 582 U.S. 218 (2017).