Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Supreme Court developed the Constitutional Avoidance Doctrine to minimize concerns about unelected federal judges setting aside Congress’s laws on constitutional grounds. Underlying the Constitution is the principle that government legitimacy depends on the consent of the people. Noting that “Governments are instituted among Men, deriving their just powers from the consent of the governed,” the Declaration of Independence justified the colonies’ separation from the British Crown, because it had, through “repeated injuries and usurpations,” deprived the colonists of government that represented and protected their interests.1

Contemplating that popular sovereignty would guard against tyranny, the Framers provided for the people to elect the House of Representatives directly and the Senate and the Executive indirectly. Popular sovereignty, which the Framers viewed as necessary for a free and republican government, meant government by the majority.2 The Framers, however, feared that conflicting opinions and rivalries among factions of citizens might cause political instability or, if a faction gained a political majority, harm “the public good and the rights of other citizens.” 3 To avoid this, the Framers crafted a Constitution that disbursed the limited powers of the new American government across three departments: the Legislative, the Executive, and the Judiciary, each with a unique role in securing for the Republic “a steady, upright, and impartial administration of laws.” 4

The Framers were also concerned that different branches might attempt to expand their powers beyond those granted by the Constitution and upset the balance the Framers designed to “secure the blessings of liberty.” 5 Consequently, the Framers provided each branch some ability to offset the power of the other two.6 Describing the division of federal power among the three branches in the Federalist No. 78, Alexander Hamilton identified the Judicial Branch as posing the least danger to the constitutional framework. He stated:

Although Hamilton viewed the Judicial Branch as the weakest of the branches, the Framers saw it as critical to preserving the rights of individuals and ensuring that the Legislative and Executive Branches did not exceed their constitutionally-granted powers.8 Hamilton recognized the Constitution as superior to acts passed by Congress because the Constitution, by virtue of its ratification process,9 manifests the intentions of the people, whereas acts of Congress merely manifest the intention of the people’s agents.10 He wrote: “[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.” 11

Hamilton further described the Judiciary as the “bulwarks of a limited Constitution against legislative encroachments,” stating: “[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.” 12 Hamilton also viewed the Judiciary as protecting minority interests from potential oppression by the majority, stating:

Whether the Framers intended to authorize the Judiciary to set aside laws passed by the elected legislature, as Hamilton envisioned, has been the subject of debate from the Nation’s earliest days. The Constitution does not expressly provide for judicial review. And while it is clear from the Federalist Papers that many Framers contemplated judicial review as including the power to invalidate acts that violated the Constitution, it is less clear whether delegates to the state ratification conventions agreed as to what judicial review might entail.14

Chief Justice John Marshall’s opinion in his seminal 1803 decision, Marbury v. Madison firmly entrenched judicial review as a tenet of the new Republic.15 Chief Justice Marshall saw judicial review as implicit in the Constitution because, among other reasons, written constitutions are the paramount law; legislative acts contrary to the Constitution are thereby void; and the Constitution provides for the judicial department to interpret the law. In Marbury, Chief Justice Marshall wrote:

Lending support to the notion that the Constitution contemplates judicial review, the Framers distinguished the Judicial Branch from the Legislative and Executive Branches by freeing it from most forms of political accountability.17 Unlike the Legislative and Executive Branches, the Federal Judiciary is not subject to elections or term limits. Instead, the President nominates and the Senate approves Justices to the Supreme Court.18 The Constitution further secures the Judiciary’s independence from public pressure and Legislative and Executive Branch influence by providing Justices life tenure during Good Behavior19 and preventing Congress from reducing the Justices’ compensation.20

Congress, however, has some checks on the Judiciary. Justices can be impeached,21 and the Exceptions Clause in Article III grants Congress the power to make “exceptions” and “regulations” to the Supreme Court’s appellate jurisdiction.22 In addition, Congress can dilute the influence of individual Justices by increasing the number of Justices on the Court.23 Finally, the Judiciary’s reliance on the other branches to give effect to its rulings provides a further check: If the Judicial Branch’s rulings are not enforced, the Judiciary becomes, in practical effect, a nullity, incapable of meaningfully performing its duty of preserving the Constitution.24 Consequently, while the Judicial Branch is largely insulated from political pressure, it is not completely insulated.

Footnotes

1

The Declaration of Independence (1776).

2

John Locke, Second Treatise § 97 (1689) ( “And thus every Man, by consenting with others to make one Body Politick under one Government, puts himself under an Obligation to every one of that Society, to submit to the determination of the majority, and to be concluded by it; or else this original Compact, whereby he with others incorporates into one Society, would signifie nothing and be no Compact, if he be left free, and under no other ties, than he was in before in the state of Nature.” ).

3

The Federalist No. 10 (James Madison). See also The Federalist No. 51 (James Madison) ( “It is of great importance in a republic not only to guard one part of the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.” ).

4

Id. No. 50 (James Madison).

5

U.S. Const. pmbl.

6

The Federalist No. 78 (Alexander Hamilton).

7

Id.

8

Id. ( “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specific exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way then through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” ).

9

Id. No. 40 (James Madison) (describing the Constitution as being submitted to “the people themselves” for ratification). Delegates to state ratifying conventions were selected by popular vote. John Hart Ely, Democracy and Distrust, A Theory of Judicial Review 5 (1980).

10

The Federalist No. 78 (Alexander Hamilton) ( “If there should be an irreconcilable variance between the [Constitution and a statute], 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, the intention of the people to the intention of their agents.” ). See The Federalist No. 49 (James Madison) ( “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power is derived.” ); see also M’Culloch v. Maryland, 17 U.S. 316, 404–05 (1819) (Marshall, C.J.) ( “The government of the Union, then . . . is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be directly exercised on them, and for their benefit.” ).

11

The Federalist No. 78 (Alexander Hamilton) ( “If there should be an irreconcilable variance between the [Constitution and a statute], 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, the intention of the people to the intention of their agents.” ).

12

Id.

13

Id.

14

There was not always consensus that the federal courts had the power to strike down laws as unconstitutional. President Andrew Jackson once opined: “[T]he opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” Andrew Jackson, Veto Message (July 10, 1832), http://avalon.law.yale.edu/19th_century/ajveto01.asp. After identifying the twenty-five delegates with the greatest impact on the Constitutional Convention, historian Charles Beard identified those who either directly or indirectly supported “judicial control” —John Blair of Virginia, John Dickinson of Delaware, Oliver Ellsworth of Connecticut, Elbridge Gerry of Massachusetts, Alexander Hamilton of New York, William Johnson of Connecticut, Rufus King of Massachusetts, James Madison of Virginia, Luther Martin of Maryland, George Mason of Virginia, Gouverneur Morris of Pennsylvania, Robert Morris of Pennsylvania, William Paterson of New Jersey, Edmund Randolph of Virginia, George Washington of Virginia, Hugh Williamson of North Carolina, and James Wilson of Pennsylvania—either directly or indirectly supported “judicial control.” Charles Beard, The Supreme Court and the Constitution 47 (Dover ed. 2006).

15

Marbury v. Madison, 5 U.S. 137 (1803). For an earlier case recognizing judicial review, see Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). See also Herbert Wechsler, Principles, Politics & Fundamental Law (1961) ( “The courts have both the title and the duty when a case is properly before them to review the actions of the other branches in the light of constitutional provisions, even though the action involves value choices . . . .” ); William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455 (2005); Robert P. Frankel, Jr., Before Marbury: Hylton v. United States and the Origins of Judicial Review, 28 J. Sup. Ct Hist. 1 (2003).

16

Marbury, 5 U.S. 137 at 176–80 (emphasis retained). See also Trop v. Dulles, 356 U.S. 86, 103 (1958) ( “The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights.” ).

17

The Federalist No. 49 (James Madison) ( “The [Judiciary], by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions.” ). See also id. No. 78 (Alexander Hamilton) ( “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specific exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way then through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” ).

18

U.S. Const. art. II, § 2, cl. 2 ( “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court . . . .” ).

19

The Good Behavior Clause created a “permanent tenure of judicial offices” to ensure an “independent spirit in judges.” The Federalist No. 78 (Alexander Hamilton). See ArtIII.S1.10.2.3 Good Behavior Clause Doctrine.

20

The Compensation Clause created a “fixed provision for [the judiciary’s] support” to prevent the political branches from having power over a Justice’s pecuniary remuneration and, with that, “power over his will.” The Federalist No. 79 (Alexander Hamilton). See ArtIII.S1.10.3.1 Historical Background on Compensation Clause.

21

Jared P. Cole & Todd Garvey, Cong. Rsch. Serv., R46013, Impeachment and the Constitution (2019), https://crsreports.congress.gov/product/pdf/R/R46013.

22

See Kevin Lewis, Cong. Rsch. Serv., R44967, Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein (2018), https://crsreports.congress.gov/product/pdf/R/R44967.

23

Joanna Lampe, Cong. Rsch. Serv., LSB10562, “Court Packing” : Legislative Control Over the Size of the Supreme Court (2020), https://crsreports.congress.gov/product/pdf/LSB/LSB10562.

24

Chief Justice John Marshall recognized this problem in Marbury v. Madison, ruling that while Marbury was entitled to his commission, the Court could not effectuate its delivery because the Judiciary Act of 1793’s writs of mandamus provision was unconstitutional. 5 U.S. 137, 176 (1803) ( “The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised.” ).