Judicial Review

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 553

§ 17 1 Foundations of Judicial Review
§ 17 1.1 The Nature and Basis of Judicial Review

Judicial review has both a broad and a narrow meaning. In its broadest sense, judicial review encompasses all judicial inquiries into the legality of what has been done by lower courts, legislatures, administrative officials, or individuals pursuant to constitutional law, statutes, or the common law. However, in keeping with the focus of this book, the phrase is used here in its narrower sense to connote only judicial examination of whether actions by government officials or others have violated the United States Constitution.

With respect to judicial declarations of unconstitutionality, all courts in the United States, and most government officials and the American people, accept three basic principles rooted in the classic case of Marbury v. Madison,1 decided in 1803, and vigorously reaffirmed 155 years later in Cooper v. Aaron,2 the only Supreme Court opinion signed by all nine Justices. These three principles are:

(1) The United States Constitution is our Nation's basic law;

(2) It is a judicial duty to say what the law is, and thus whether a federal or state law or its application has violated the Constitution; and

(3) With respect to the judiciary in both state and federal courts, decisions by the Supreme Court of the United States are the final authority on the meaning of the Constitution.

The first of these three propositions is clearly supported by the Constitution's text, particularly its Preamble ("We the People . . . do ordain and establish this Constitution") and the Supremacy Clause of Article VI, cl. 2 ("This Constitution . . . shall be the supreme Law of the Land"). Even the Virginia and Kentucky Resolutions of 1798-99, and the nullification movement in South Carolina and other Southern states in the 1830s and thereafter, discussed at § 25.3 nn.56-58, agreed with this proposition. They disagreed with the second and third propositions, specifically the view that federal courts could authoritatively pronounce on the Constitution's meaning, instead of state courts or legislatures. In the words of the Kentucky Resolution of November 16, 1798, which was based on a draft by Thomas Jefferson, "That to this compact [the Constitution] each state acceded as a state, and is an integral party, its co-states forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers, but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."3 Page 554

The second of these propositions is not so clearly supported by constitutional text. No literal text in the Constitution expressly establishes an authority in the Supreme Court or in any other court to decide that governmental acts are repugnant to the Constitution and, on that ground, to declare them void. Thus, the defense of judicial review has had to be based upon sources of constitutional interpretation other than literal text: purpose, context, history, practice, precedent, and prudential considerations. For example, regarding legislative practice on this issue, in response to the Kentucky and Virginia Resolutions of 1798, the Massachusetts legislature responded on February 9, 1799, "That this legislature [is] persuaded that the decision of all cases in law and equity arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the United States."4 The New Hampshire legislature responded on June 4, 1799, "That the state legislatures are not the proper tribunals to determine the constitutionality of laws of the general government; that the duty of such decision is properly and exclusively confided to the judicial department."5

As discussed at §, the result in Marbury v. Madison,6 where the Supreme Court held that the judiciary has the power of judicial review, has been a foundation for the rule of law in the United States since 1803. Basing judicial review on an asserted judicial power to declare the law has the significant consequence that even lower courts can make declarations of unconstitutionality, and such decisions are binding for the jurisdiction covered by that court, unless set aside by a higher court. For example, under the general grant of judicial power to the federal courts in Article III of the Constitution, lower federal courts, as well as the United States Supreme Court, have the power to bind even state legislative and state executive officials regarding matters of federal law, as long as the court has jurisdiction to decide the case, as discussed at §§ 17.2.1-17.2.3, and state sovereign immunity does not exist, as discussed at § 17.2.4.

The third of these three propositions - that concerning both state and federal courts, decisions by the Supreme Court of the United States are the final authority - is supported by inferences from the text of the Supremacy Clause and Article III. As Justice Story wrote in 1816 in Martin v. Hunter's Lessee,7 the federal judiciary, in actions brought in federal court, can impose federal law on state legislative and executive action because of the Supremacy Clause. The Supreme Court can also engage in appellate review of state court decisions because otherwise the Court would not have appellate review in "all other cases" involving "the Laws of the United States, and Treaties made, or which shall be made, under their Authority," as authorized by Article III.8 As discussed at §, a full defense of proposition three also requires resort to arguments of purpose, context, history, practice, precedent, and prudential considerations. Page 555

§ 17 1.2 Judicial Review During the Original Natural Law Era: 1789-1873
§ 17 1.2.1 Marbury v. Madison...

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