Origin of Judicial Review in the United States

Much of the content for this article was taken from:
The Making of America: The Substance and Meaning of the Constitution

The gradual evolution of the Supreme Court into its role as "guardian of the Constitution" is known as the power of "judicial review." This means that the Court can review acts of Congress and acts of the state legislatures to make certain that they do not violate the provisions of the Constitution as designed by the founding Fathers.

This extremely important power under which the Supreme Court makes its "judicial review" of constitutional issues is not specifically spelled out in the Constitution. However, it is clearly implied by the "supremacy clause," which makes the Constitution and the federal laws and treaties, the supreme law of the land. Obviously, the Supreme Court would have to use its judicial powers to enforce the supremacy clause, since otherwise it would be meaningless. That this was the intent of at least some of the Founders is borne out by the words of Alexander Hamilton:

"The courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter [the Congress] within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It therefore belongs to them [the judiciary] 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, the intention of the people to the intention of their agents." ¹

In other words, the Supreme Court is to measure all legislative acts against the will of the people as it was set forth in their original charter of liberty -- the Constitution of the United States.

A Major Weakness Discovered

But there is one thing missing here. What happens if the Supreme Court imposes its will upon the nation, contrary to the specific provisions of the Constitution? The Founders knew this possibility existed. Alexander Hamilton further reasoned that:

"The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body." ²

Hamilton previously pointed out that an unconstitutional act of the legislative body is null and void. It should be clear, then, that an unconstitutional edict by the Supreme Court would be equally invalid. If this should happen, where is the remedy? By what means do the people protect themselves?

Apparently, the Founders were so concerned about an overzealous Congress that they neglected to protect themselves from an overzealous judiciary. The only checks and balances provided in the Constitution are as follows:

1. All judges have to be appointed by the President with the advice and consent of the Senate.
2. Article III, section 2, authorized the Congress to restrict the jurisdiction of the federal courts, but this has been rarely attempted.
3. The Congress can impeach judges for "treason, bribery, or other high crimes and misdemeanors," but not for an unpopular decision. Even when the Supreme Court has seriously violated its constitutional limitations by making new laws through judicial decree, no effective congressional action has been asserted.

From this it will be readily seen that insofar as checks on the judiciary were concerned, a major loophole was left in the basic structure of the Constitution. An article in a New York paper, dated 31 Jan. 1788 and signed "Brutus" (believed to have been Robert Yates) pointed out this oversight.

"It is … of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.” ³

The Founders may have assumed that the members of the Supreme Court would adhere to the traditional principles of "strict interpretation" which had been thoroughly established during several centuries of English common law. Had this been done, modern Americans would find themselves living in a much more stable society than at present. Our history demonstrates that too often the Supreme Court has ignored clearly stated principles of the Founders and interpreted the Constitution to suit the social, economic, or political aspirations of the court. This proved to be the Achilles' heel in the structure of the Constitution which allowed the Supreme Court to rapidly become what "Brutus" predicted it would. This, then, brings us to an important question.

Who Was Right, Marshall or Jefferson?

The bitter controversy over who should be the guardian of the Constitution was personified in two equally devout American patriots who were cousins. One was Thomas Jefferson, who wanted the states to protect the people from an abusive federal government, and the other was John Marshall, who wanted the Supreme Court to protect the people from the arbitrary abuses of the various states.

These men had much in common:

• They were both trained in law by George Wythe, one of the foremost legal minds in America.
• Both men had a reverential love for the Constitution as a charter of human liberty.
• Both of them considered the people to be the source of all political authority and both looked upon the Constitution as the expressed will of the people.
• They both cherished freedom as a sacred and unalienable legacy which had to be preserved if the great American experiment were to endure.
• At the bottom line, both considered the primary purpose of government to be the protection of the people's rights.

 Despite all of this unity, these two great patriots came to divergent conclusions on how best to guard the Constitution against intrusion.

Jefferson felt the greatest threat was a strong central government. He therefore considered the independent rights reserved to the states as the best safeguard against federal abuse and usurpation.

Marshall, on the other hand, had served in the Virginia state legislature four times between 1782 and 1795. He had seen enough chicanery on the state level to convince him that what the people needed was a uniformity of interpretation by the Supreme Court, so as to make sure that the rights of all of the people were protected on an equal basis in all of the states.

In the end, the fears of both men turned out to have merit. The federal government did extend its powers far beyond the dimensions allowed by the Constitution, and the states did impose upon their people a wide variety of arbitrary standards concerning the manner and extent to which the rights of the people would be protected.

Now, over two-hundred years later, Americans are still seeking the best solution. Those which are currently being considered need to be evaluated in terms of what both Jefferson and Marshall expressed in their various opinions. First, let us consider Jefferson's strong objections to the Supreme Court being set up as the exclusive and final arbiter of what the Constitution meant.

Jefferson's Objections to Judicial Review

Jefferson’s concern with the Supreme Court being the “ultimate arbiters” of constitutional authority can perhaps be best summed up in a letter he wrote to William Charles Jarvis in 1820. In it he came right out and pronounced judicial review a "dangerous doctrine." He said:

"You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. 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. It has more wisely made all the departments co-equal and co-sovereign within themselves.

"Pardon me, sir, for this difference of opinion. My personal interest in such questions is entirely extinct, but not my wishes for the longest possible continuance of our government on its pure principles; if the three powers maintain their mutual independence [of] each other it may last long, but not so if either can assume the authorities of the other." ⁴

Why John Marshall Finally Won Out

History demonstrated Jefferson's concerns to be well founded, but so were John Marshall's anxieties borne out by the events of history. While it was true that the federal government grasped for power through the finality of Supreme Court decisions, it was also true that many of the states refused to uniformly protect the civil rights of all their citizens.

John Marshall clearly and emphatically established his position when, as Chief Justice of the Supreme Court, he announced in Marbury v. Madison, that the Supreme Court was the exclusive and final arbiter of what was constitutional and what was not, and furthermore, that its decisions were binding on all branches of government.

Marshall was simply affirming what he had said during the Virginia ratification convention. At that time, he had asked: "To what quarter will you look for protection from an infringement of the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection." ⁵

Marshall based his conclusions on three provisions of the Constitution.

1. The "supremacy clause," which says: "This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land." ⁶
2. The "binding clause," which says: "All executive and judicial officers, both of the United States and of the several states, shall be bound by oath and affirmation to support this Constitution." ⁷
3. The "judicial power clause," which says: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, ... " etc. ⁸

Despite Jefferson's protests, Marbury v. Madison became the milestone case which gave the Supreme Court the last say on what was constitutional and what was not. Had the court restrained itself during the ensuing years and held to a strict interpretation of the intent of the Founders, its credibility would have remained untarnished. Unfortunately, its original position of defending "constitutional supremacy" gradually shifted to a defense of "judicial supremacy," just as Jefferson had feared -- and that is where the matter rests today.

The Need for "Fixed Rule of Law"

No doubt one of the main reasons why the rule of Marbury v. Madison became the cornerstone for judicial review was the fact that it brought questions of law to a final decision, whereas the Jefferson approach did not. It is part of human nature to demand a decision on pending issues and have a "fixed rule of law" so people can get on with their affairs and conduct themselves accordingly. An old military cliche comes to mind which proclaimed, "It is better to make a decision and be wrong, than to make no decision at all."

The federal courts have done that, but once they abandoned the touchstone of the Constitution as originally designed by the Founders, they began to wander far afield. In recent times, the Supreme Court has found itself facing a barrage of criticism resulting from reversing itself over a hundred times and frequently interpreting statutes quite differently from the obvious intent of the Congress. Furthermore, it often bases decisions on "public policy" and "modern doctrines," resulting in distorted interpretations of the Constitution which the Founders never would have recognized.

Footnotes:

1. Federalist Papers, No. 78.
2. Ibid.
3. The Founders' Constitution, Volume 4, Article 3, Section 2, Clause 1, Document 19, The University of Chicago Press
4. Bergh, 11:50
5. Judicial Review and Judicial Power in the Supreme Court, Edited By Kermit L. Hall, p. 370.
6. United States Constitution, Article VI.
7. Ibid.
8. United States Constitution, Article III section 2.