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The Doctrine of Judicial Review - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Doctrine of Judicial Review

Having examined a statute to determine the intent of the legislature, an English judge’s interpretive powers come to an end. He has only to apply the statute to the facts of the case and reach a decision. This is because the English courts, in spite of the claims once made by Lord Coke, do not have the power of judicial review. On rare occasions they may express an opinion on whether a particular act of Parliament conforms to the English Constitution, but Parliament is free to ignore it. In keeping with the principle of legislative supremacy, Parliament decides for itself whether its acts are constitutional. In fact, Great Britain does not even have a supreme court. The highest court of appeals in the British political system is actually the House of Lords, which, of course, is also the upper chamber of the legislature.

Under the American political system, a judicial inquiry into the legislature’s intent is merely the first step of the judicial process. Once the meaning and intent of the statute have been determined, the judge must then decide whether it conforms to the Constitution. If it is a State law, he must take yet another step to determine whether the law conforms to Federal laws and treaties. All of this is necessary because of the Supremacy Clause of Article VI. As noted earlier, this is the most distinctive feature of the American Constitution. It is a key provision which, more than any other, distinguishes the American Constitution from the English—and most other constitutions of the world.

In essence, the Supremacy Clause establishes a hierarchy of laws, with the Constitution itself as the highest law, followed by Federal laws and treaties, descending finally to State constitutions, State laws, and local ordinances. Article VI declares that, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.”

It is important to study these words carefully. In the first place, there is no law higher than the Constitution. Political philosophers and even some judges have argued on occasion that there is a higher “natural law” governing American affairs, and that judges therefore have a higher duty not only to follow it, but to impose it if some provision of the Constitution or a law seems to conflict with it. Similar arguments have been made on behalf of “natural rights” and “moral values,” as we noted earlier, and some have also maintained that the principle of equality embodied in the Declaration of Independence authorizes judges to reach beyond the Constitution in order to implement and protect it. In their struggle to end slavery, some abolitionists argued, for example, that the Constitution embraced the Declaration of Independence, and that slavery was therefore unconstitutional.

Such arguments are persuasive. It may well be that we are all governed by a higher, unwritten natural law, emanating from God; that certain rights are by nature indelibly impressed upon the hearts and minds of all mankind; and that the spirit of ’76 is incorporated into our fundamental law. The problem is that these concepts, whatever their merit and value, are not provided for in the Constitution, and there is no evidence that the Framers ever intended them to be. This is not to say that the Framers rejected natural law ideas or that they opposed the principles of the Declaration of Independence—which they assuredly did not—but merely to state that the authors of the Constitution appreciated and understood the fact that any declaration to the effect that “The natural law” or “The natural rights of man” or “Moral values” or “The principles of the Declaration of Independence” of 1776 “shall be the supreme law of the land” would have produced not only widespread confusion, but the overthrow of the Constitution and the establishment of a judicial oligarchy as well. This is because there is considerable disagreement about the precise meaning of these concepts. Judges, after all, are trained in the law. They are not priests or philosopher kings, and no two judges are likely to agree on whether or why one right is “natural” and another is not. The practical effect of the Supremacy Clause, it should be kept in mind, is to expand the powers of the Supreme Court. It is the judges who must interpret the laws and decide whether they conform to the Constitution. To empower them also to decide whether the laws also conform to religious, moral, or philosophical doctrines would be an invitation to the exercise of arbitrary power. Taken to its logical conclusion, the assumption that there is a higher authority than the Constitution and that the judges may therefore invoke it at their pleasure would result in the death of the Constitution on the ground that perhaps it too violated some higher law.

In the second place, “the laws of the United States,” that is, Federal laws passed by Congress, also enjoy supremacy—not over the Constitution, of course, but over State laws. Thus, if a Federal law conflicts with a State law, the latter is void and may not be enforced. Federal laws are not automatically treated as the supreme law, however, for the Supremacy Clause stipulates that they “shall be made in pursuance” of the Constitution. This means that they must conform to the Constitution. It is the duty of the courts to decide whether any law, State or Federal, meets this test. If it does, the courts are obliged to apply it to the case at hand, even if the judges think it unwise or are personally opposed to the policy it establishes. In this sense, the American Constitution establishes a qualified legislative supremacy in Congress, the only higher authority being the Constitution itself.

Third, the Supremacy Clause declares that treaties made “under the authority of the United States,” shall also be supreme law of the land. Why, it may be asked, did the Framers not specify that treaties, like laws, must also be made “in pursuance of the Constitution”? Does this mean that treaties may ignore the Constitution? The wording of the clause seems uncertain on this point, and has aroused considerable debate over the years. The Framers were not careless draftsmen, however, and they chose their words carefully. Under the Articles of Confederation, the United States had entered into agreements with foreign powers, the Treaty of Peace of 1783 being a prime example. Had the Framers employed language that required all treaties to be made in pursuance of the Constitution, the legal status of such treaties would have been in doubt because the Constitution did not exist when they were made. By stating that all treaties would be regarded as the supreme law of the land if they were made “under the authority of the United States,” however, these earlier agreements were left intact. Although the Supreme Court has never overturned a treaty on the ground that it violated the Constitution, the principle seems well established that treaties, like the laws of Congress, must be constitutionally acceptable. “There is nothing in this language,” declared the Court in Reid v. Covert (1957), “which intimates that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result.”

The power of the Supreme Court to strike down an act of Congress on the ground that it conflicts with the Constitution, it should be emphasized, is not explicitly provided for in the Constitution. There is no mention of the power of judicial review anywhere in the document, and its legitimacy has therefore been questioned from time to time by some critics of the Court. Very early in our history, however, Chief Justice John Marshall established the doctrine of judicial review in the celebrated case of Marbury v. Madison (1803), and the Court has followed it ever since.

In Federalist Nos. 78 and 81, Alexander Hamilton probably spoke for most of the Framers when he implied that judicial review was an inherent power of the Court under the new Constitution. “The interpretation of the law,” he wrote, “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 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, and the intention of the people to the intention of their agents.”

That “the intention of the people” should be preferred “to the intention of their agents” is a phrase that strikes the modern reader as peculiar. Do not elected representatives, the agents of the people, speak for the people? Is not their intent the intent of the people? The founding generation did not equate the intent of the people with the intent of the legislature in every and all respects. Justice William Paterson, a delegate to the Philadelphia Convention who later served on the Supreme Court, put it this way in Van Horne’s Lessee v. Dorrance (1795): the Constitution “is the form of government delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. … [I]t contains the permanent will of the people and is the supreme law of the land.” It necessarily follows that there is nothing inherently undemocratic about judicial review in principle, in view of the magistrates’ obligation to support and defend the permanent, or constituent, will of the people, in preference to the temporary, or political, will of transient majorities. By “constituent” will, we mean the will of the people that is expressed when they create a government. The Framers understood the difference, in other words, between constituent assemblies, such as those which frame and ratify a constitution, and legislative assemblies, which simply make the laws. Judicial review, it has been argued, is “undemocratic” because it permits unelected judges to nullify the decisions of elected representatives. This would be true only if the nullified statute was clearly constitutional. But to insist that the exercise of judicial review, as such, is undemocratic is to ignore the democratic foundation of the Constitution itself, which speaks in the name of “We the People” and is meant by the people—past as well as present and future generations—to be preferred to the wishes of their agents, who are but a fleeting reflection of current opinion and in many instances may be speaking only for themselves.

Thus understood, the true and permanent will of the American people is expressed in the Constitution. This is an unwritten assumption, applicable to each generation of Americans, until they deliberately and consciously cast it aside or amend it. It is an everlasting commitment by the people to self-restraint and to the restraint of government. By the word “people,” then, Hamilton did not mean a collection of voters at any given time or place. He meant the American people in historical continuity. It is their will that they be governed by their Constitution which is written in their name and was adopted by their ancestors. This is not to say that they are to be ruled from the grave, but merely to observe that they have chosen to impose limitations on their autonomy, and to be governed ultimately not by politicians or judges, but by a higher law we call the Constitution of the United States of America. The practice of judicial review, it may thus be argued, runs counter to democratic principles when a judge ignores the Constitution or allows an unconstitutional statute to stand, not when he defends the Constitution against legislative assault.

In Marbury v. Madison, Chief Justice Marshall reasoned, in a brilliant display of deductive logic, that judicial review is a constitutional imperative. “The question, whether an act repugnant to the Constitution, can become the law of the land,” he stated, “is a question deeply interesting to the United States.” Marshall began by pointing out that certain fundamental principles of the constitutional system seem to warrant judicial review. The people had united to establish a government. They organized it into three departments and assigned certain powers to each, while at the same time setting limits to the exercise of those powers. These limits were expressed in a written constitution, which would be a useless document “if these limits may, at any time, be passed by those intended to be restrained.” Because the Constitution is “a superior paramount law,” it may not be changed by ordinary legislation. This means that “a legislative act contrary to the Constitution is not law.”

The question, continued Marshall, thus presents itself: “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?” The answer, said Marshall, is abundantly clear: No. The judges do not really have a choice in the matter. “It is emphatically the province and duty of the judicial department, to say what the law is.” But judges do not interpret the law in the dark; they interpret it in the light of the Constitution, which provides the rule of interpretation. “If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case.” To declare otherwise, Chief Justice Marshall asserted, would be to permit the legislature to surpass at will the limits imposed upon its powers by the Constitution. The very concept of a written constitution, in other words, justified judicial review.

But, Marshall further noted, the Framers did not leave the matter entirely to common sense and reason. They provided the Supremacy Clause, which gave the Constitution precedence over laws and treaties and specified that only laws “which shall be made in pursuance of the Constitution” are to be the supreme laws of the land. “Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”

The Supreme Court did not again render an act of Congress null and void through judicial review until 1857, when in the case of Dred Scott v. Sandford the Justices ruled that the Missouri Compromise of 1820, prohibiting slavery in the Territories, was unconstitutional. In general, the Court has been remarkably restrained in exercising judicial review over acts of Congress, and throughout much of American history has been rather reluctant to challenge the legislature. As indicated by the Court’s reluctance to impose limits on the commerce power since 1937, the court has, in fact, virtually abandoned judicial review in many areas of the law.

Such a hands-off policy is most emphatically not the case with regard to the application of judicial review against the States. Between 1789 and 1860, the Supreme Court held a State constitutional provision, law, or ordinance unconstitutional in 36 instances. This number was quickly matched in the period from 1861 to 1873; and from 1861 to 1937, the number climbed to 515, about a 1,400 percent increase. The Supreme Court under Chief Justice Earl Warren held 166 State constitutional provisions, laws, or ordinances invalid, and under Chief Justice Warren Burger the number rose to 310. Altogether, the Supreme Court overturned more than 1,140 State laws, ordinances, and constitutional provisions between 1789 and 1989. Considerably more than half of these decisions have been delivered in the past fifty years.

The leading case in this area of judicial review is Martin v. Hunter’s Lessee (1816). Under Section 25 of the Judiciary Act of 1789, Congress provided that final judgments in State supreme courts questioning the validity of any Federal law or treaty were subject to review by the Supreme Court. The Virginia high court challenged the constitutionality of this grant of power to the Supreme Court, however, arguing that it violated the reserved powers of the States. Conflicting views on the meaning of the Supremacy Clause and State sovereignty were at the heart of the controversy. The Virginia judges claimed that, while State judges were obliged under Article VI to obey the Constitution, laws, and treaties of the United States, they were not bound to obey the Supreme Court’s interpretations of them. In their view, State and Federal judges were officers of two separate sovereignties, and neither was required to obey the decisions of the other. Congress therefore had no authority to enact a law subjecting State court decisions to review by the Federal Judiciary.

In an opinion by Justice Story, the Supreme Court rejected these arguments. Story denied the claim that State sovereignty equaled national sovereignty. The Constitution is “crowded with provisions which restrain or annul the sovereignty of the States,” he pointed out, and the doctrine of absolute State sovereignty insisted upon by the Virginia judges ran counter to the whole theory of Federal supremacy.

Nowhere in the Constitution was it stated that the Supreme Court should exercise appellate jurisdiction over State courts. It did not follow from this, however, that the Supreme Court was prohibited from reviewing State court decisions. This is so, explained Story, because the appellate jurisdiction of the Supreme is not spelled out in the Constitution for any class of cases, and is left solely to the discretion of Congress. Article III of the Constitution provides that “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.” The Constitution, in other words, gives Congress complete authority to establish and regulate the appellate jurisdiction of the Supreme Court. If the appellate power of the Supreme Court did not extend to cases decided in the State courts which were inconsistent with the Constitution or which challenged the validity of a Federal law or treaty, then Federal supremacy would be in jeopardy. It would also be impossible for the Supreme Court to carry out its function of protecting the supremacy of the Constitution and all Federal laws and treaties if it could not review these kinds of State court decisions. Accordingly, Section 25 of the Judiciary Act of 1789 was constitutional.

Very early in our history, it may thus be seen, judicial review of acts of Congress and judicial review of State court decisions became fixed principles of constitutional construction in the Supreme Court. Although the former rested on deductive reasoning and was understood as an inherent power implicit in the Constitution itself, and the latter was based on statute, both forms of judicial review drew their inspiration and legitimacy from the Supremacy Clause. That the Supreme Court also has the power to decide whether a State constitutional provision, law, or municipal ordinance conforms to the Constitution has never been seriously questioned. In Fletcher v. Peck (1810), the Supreme Court for the first time in its history held a State law void because it conflicted with a provision of the Constitution—the Contract Clause in Article I, Section 10. Previously, State laws had been held unconstitutional because they conflicted with Federal laws or treaties.

Under what is called the Doctrine of Preemption—a rule of interpretation that has been applied with increasing frequency in recent years and has been much criticized—the Court has also voided State laws not because they directly contravene a Federal law, but on the ground that Congress has “preempted the field.” As is often the case, especially in the matter of commerce, Federal statutes do not always specify whether all State and local regulations are suspended. The Court has adopted the rule of interpretation that in those instances where, in the opinion of the judges, the “scheme of Federal regulation is so pervasive as to reasonably infer that Congress has left no room for the States,” or where the interest of the national government is “so dominant that it precludes State action,” then the State law will be nullified even though it does not conflict with the Constitution or a Federal law.

Judicial review is thus an important power of the Supreme Court that comes in many forms. Basically, however, there are four types. The first is the power of the Supreme Court to declare acts of Congress unconstitutional. The second type is the power of the Court to declare invalid any State constitutional provision, State law, or other State action that infringes on the constitutional authority of the national government. A third type is the closely related power of the Court to overturn cases decided in State supreme courts where the validity of a Federal law or treaty was questioned or denied or where the construction of any clause in the Constitution was against a claim or right of either party. The fourth type is the power of the Court to review the actions of public officials exercising either delegated legislative or administrative powers, to determine whether they acted within their powers.

As a device for maintaining Federal supremacy, judicial review of State court decisions and State laws is the most frequently used and the most significant. Martin v. Hunter’s Lessee, in the view of constitutional historian Charles Warren, is “the keystone of the whole arch of Federal judicial power.” Justice Oliver Wendell Holmes, who served on the Court in the early part of the twentieth century, once remarked: “I do not think the United States would come to an end if we lost our power to declare an act of Congress void. I do think the Union would be imperilled if we could not make that declaration as to the laws of the several States.” To be sure, it seems certain that the relationship between the Federal government and the States would be considerably different from what it is today if Section 25 of the Judiciary Act of 1789 had been overturned or later repealed.