Judicial review is the power of a court to assess the constitutionality of legislation, and to hold null and void any legislation that it finds to contravene the Constitution. Although not mentioned anywhere in the US Constitution, the power was exercised by both state and federal courts from the nation’s inception, most prominently by the US Supreme Court in Marbury v. Madison (1803). In Marbury, borrowing from arguments advanced earlier by Alexander Hamilton in Federalist #78, and more general common law and colonial understandings, Chief Justice John Marshall set out a theoretical justification for the practice anchored in a court’s duty to decide cases according to law. In so doing, where a court finds a conflict between the fundamental law of the Constitution (adopted by “We the People,” acting in their sovereign capacity), and ordinary law (passed by legislatures), the court is obliged to give precedence to the former over the latter. Although this has been widely accepted as a legitimate practice arising out of a judge’s broader duty to decide cases according to law, there were always those who objected to judicial review as implicitly instituting “judicial supremacy,” where, by virtue of the exercise of the judicial review power, a judge’s interpretation of the Constitution was held to take precedence over that of any other. But why should the judge’s interpretation be understood as supreme, when elected members of Congress and the President—like judges—also takes oaths to uphold the Constitution, and may have their own, perhaps more sensible interpretation? Debates over these matters recur throughout American history, particularly in periods when, on matters of unusual political salience, the Court’s interpretation of the Constitution is consistently at odds with that of other elected officials, or of the people. For over a century now—beginning with the late-19th and early-20th-century contention between traditionalist judges wielding their judicial review powers against the progressive innovations of the newly emerging American regulatory and social welfare state—the nature, theory, and practice of judicial review has been at the center of academic and popular discussion of US Constitutional law. The subject has thus been approached from many angles, by scholars from different academic disciplines, with a diversity of questions in mind. Those researching judicial review will usually have in mind a particular angle, rather than the whole subject.
Although there are certainly many theories about it, judicial review is fundamentally a practice. As such, it has a history. Over the course of that history, discussions of its legitimacy and nature are rarely undertaken in abstraction from the concrete exercise of the power in particular cases and political and constitutional controversies. To complicate matters further, the constitutional provisions applied by courts in exercising their constitutional review powers are often broad and seemingly indeterminate. Over time, courts, in the process of interpreting the Constitution, formulate constitutional “doctrine” to lend these provisions some stable and accessible meaning. In orienting oneself, reference books, casebooks, and review essays are helpful.
LAST MODIFIED: 11/29/2011
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