The Principle of Judicial

Review
Imagine these headlines on the front
of your daily newspaper:
The President Proclaims Only
Christians Can Hold Jobs in the
Federal Government
Iowa Legislature Passes Law
Exempting Citizens of the State
from Paying Federal Income Taxes
The actions described in these
imaginary headlines violate the U.S.
Constitution. If challenged in a
federal or state court, such actions
could be declared unconstitutional
through the process of judicial
review. Judicial review is the
power of the courts to declare
acts of the legislative and
executive branches of government
null and void if they violate
provisions of the Constitution. All
courts, federal and state, may
exercise judicial review. Judicial
review puts the judges of these
courts in the position of being the
guardians or official interpreters of
the meaning of the Constitution.
The justices of the U.S. Supreme
Court, however, have the final say
about
the
constitutionality
of
actions and laws.
Judicial review is based on these
ideas:
The Constitution is the
supreme law
Acts contrary to the
Constitution are null and
void

The courts are responsible

for determining if acts
violate the Constitution

Origins of Judicial Review

Before the revolution in 1776,
the English Privy Council in London
regularly reviewed acts of the
colonies. This was done to make
sure the colonies laws complied
with English law. After the
Declaration of Independence each of
the colonies formed state
governments with their own state
constitutions. Between 1778 and
1787, it became the practice of the
courts in several states to overturn
laws that they found violated their
constitutions. Therefore, judicial
review was well known in the
colonies before the Constitution was
written.
When the founders wrote the
Constitution, there was little doubt
that they intended the federal courts
to have authority to declare state
laws unconstitutional. It was less
clear, however, that they intended
the Supreme Court to have the same
power over acts of Congress or the
President.
A Constitutional Debate Starts.
During the debate over ratification
of the Constitution, Alexander
Hamilton argued that the Supreme
Courts power of judicial review was
clearly implied by the Constitution if
not stated explicitly.

A young lawyer from Virginia,

helping to convince his state to
ratify the Constitution, summarized
the need for judicial review. That
lawyer, John Marshall, asked:
To what quarter will you look
for protection from an infringement
on the Constitution if you will not
give the power to the Supreme Court?
There is no other body that can
afford such protection.
Other political leaders of the
time were not so enthusiastic. As
the new government started,
Thomas Jefferson emerged as a
leader of those who opposed the
Courts use of judicial review over
the executive and legislative
branches of the national
government.
Jefferson wanted each of the
three branches of government to
decide for itself about the meaning
of the Constitution. Thus, Congress
would decide for itself whether or
not its actions were constitutional.
The President would do the same.
When Jefferson was elected
President in 1800, it was still not
settled whether the Supreme Court
would exercise judicial review over
acts of Congress or the President.
The Court first asserted the power of
judicial review of congressional
actions in a case that grew out of
the bitterly contested election which
brought Jefferson to office.
Marbury v. Madison (1803). Fortytwo men awaited commissions from
President Adams administration
appointing them justices of the
peace for the District of Columbia.
The President, a Federalist, rushed

the appointments of these loyal

federalists through the Senate just
before his term of office ended. He
hoped to leave his successor, the
Republican Jefferson, with a court
system packed with opponents.
Adams plan hit a snag when
his Secretary of State failed to
deliver all the commissions before
Jefferson was inaugurated.
Discovering Adams plan, President
Jefferson instructed his new
Secretary of State, James Madison,
not to deliver the remaining
commissions, one of which was
William Marburys. In an effort to
force Madison to release his
commission, William Marbury
looked through the Judiciary Act of
1789. He found that the Supreme
Court had been given the power to
issue writs of mandamus, orders
that would force public officials to
perform their official duties.
Armed with this law, Marbury went
to the Supreme Court and asked
that a writ be issued to Madison
commanding him to deliver the
commission. Madison refused to
obey the writ of mandamus, thus
the case came before the Supreme
Court.
The Court ruled that
Marbury had a right to the
commission he demanded.
However, the Court also ruled
that it had no right under the
Constitution to issue a writ of
mandamus in the first place!
Therefore, the Supreme Court
declared one part of the Judiciary
Act of 1789 to be unconstitutional.
Thus, William Marbury was left

without the commission appointing

him to be a justice of the peace. Of
far greater importance, the Supreme
Court had asserted the power of
judicial review, which became a
main principle of constitutional law
in the United States.
Three Applications of Judicial
Review. Today, the Supreme Court
exercises its power of judicial review
over:
1. laws passed by Congress
2. presidential actions
3. state legislation and court
rulings