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What Novel Legal Principles Must Be Reviewed When the Case Goes to the Supreme Court

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Ability of a court in the US to examine laws to determine if information technology contradicts current laws

In the Us, judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing constabulary, a State Constitution, or ultimately the U.s. Constitution. While the U.S. Constitution does not explicitly define the power of judicial review, the dominance for judicial review in the United states has been inferred from the construction, provisions, and history of the Constitution.[ane]

Two landmark decisions by the U.South. Supreme Courtroom served to confirm the inferred constitutional authority for judicial review in the United States. In 1796, Hylton v. United States was the beginning instance decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794 which imposed a "carriage tax".[2] The Court performed judicial review of the plaintiff'due south claim that the carriage tax was unconstitutional. Later on review, the Supreme Court decided the Carriage Act was ramble. In 1803, Marbury five. Madison [3] was the first Supreme Court case where the Courtroom asserted its authority to strike down a law as unconstitutional. At the end of his opinion in this conclusion,[4] Principal Justice John Marshall maintained that the Supreme Court'due south responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of part to uphold the Constitution equally instructed in Article Six of the Constitution.

Every bit of 2014[update], the U.s. Supreme Court has held 176 Acts of the U.South. Congress unconstitutional.[5] In the period 1960–2019, the Supreme Courtroom has held 483 laws unconstitutional in whole or in role.[vi]

Judicial review before the Constitution [edit]

If the whole legislature, an event to be deprecated, should attempt to overleap the premises, prescribed to them by the people, I, in administering the public justice of the country, volition meet the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, here is the limit of your authority; and, here, shall you go, but no further.

—George Wythe in Commonwealth v. Caton

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional sick humors in the society. These sometimes extend no farther than to the injury of particular citizens' individual rights, by unjust and partial laws. Here likewise the firmness of the judicial magistracy is of vast importance in mitigating the severity and circumscribed the operation of such laws. It not only serves to moderate the firsthand mischiefs of those which may have been passed, only it operates as a cheque upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to exist expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more than influence upon the character of our governments, than but few may be aware of.

—Alexander Hamilton in Federalist No. 78

Before the Ramble Convention in 1787, the ability of judicial review had been exercised in a number of states. In the years from 1776 to 1787, state courts in at least seven of the xiii states had engaged in judicial review and had invalidated state statutes considering they violated the state constitution or other college law.[7] The outset American determination to recognize the principle of judicial review was Bayard v. Singleton,[eight] decided in 1787 past the Supreme Courtroom of North Carolina'south predecessor. [9] The North Carolina court and its counterparts in other states treated state constitutions as statements of governing constabulary to exist interpreted and practical by judges.

These courts reasoned that considering their state constitution was the fundamental police force of the land, they must apply the state constitution rather than an act of the legislature that was inconsistent with the state constitution.[10] These state courtroom cases involving judicial review were reported in the press and produced public discussion and comment.[11] Notable state cases involving judicial review include Commonwealth v. Caton, (Virginia, 1782),[12] [xiii] Rutgers v. Waddington (New York, 1784), Trevett five. Weeden (Rhode Island, 1786). Scholar Larry Kramer agreed with Justice Iredell that any judge who enforces an unconstitutional law becomes complicit in the unconstitutionality and that they themselves get lawbreakers.[fourteen]

At least 7 of the delegates to the Constitutional Convention, including Alexander Hamilton, John Blair Jr. George Wythe, and Edmund Randolph, had personal feel with judicial review because they had been lawyers or judges in these state court cases involving judicial review.[15] Other delegates referred to some of these state court cases during the debates at the Ramble Convention.[16] The concept of judicial review therefore was familiar to the framers and to the public earlier the Constitutional Convention.

Some historians argue that Dr. Bonham'south Case was influential in the development of judicial review in the Usa.[17]

Provisions of the Constitution [edit]

The text of the Constitution does not contain a specific reference to the power of judicial review. Rather, the ability to declare laws unconstitutional has been accounted an implied ability, derived from Article 3 and Article VI.[18]

The provisions relating to the federal judicial power in Article Three land:

The judicial power of the United States, shall exist vested in i Supreme Court, and in such inferior courts as the Congress may from time to fourth dimension ordain and establish. ... The judicial power shall extend to all cases, in police force and equity, arising under this Constitution, the laws of the United States, and treaties fabricated, or which shall be made, nether their authorisation. ... In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Courtroom shall have original jurisdiction. In all the other cases earlier mentioned, the Supreme Courtroom shall have appellate jurisdiction, both as to law and fact, with such exceptions, and nether such regulations every bit the Congress shall make.

The Supremacy Clause of Article VI states:

This Constitution, and the Laws of the U.s.a. which shall be made in Pursuance thereof; and all Treaties fabricated, or which shall be made, under the Authorization of the United States, shall exist the supreme Law of the Land; and the Judges in every State shall be jump thereby, any Thing in the Constitution or Laws of any State to the Opposite yet. ... [A]ll executive and judicial Officers, both of the United states of america and of the several States, shall exist bound by Oath or Affidavit, to back up this Constitution.

The power of judicial review has been unsaid from these provisions based on the following reasoning. It is the inherent duty of the courts to determine the applicable law in whatsoever given case. The Supremacy Clause says "[t]his Constitution" is the "supreme law of the land." The Constitution therefore is the fundamental law of the United States. Federal statutes are the police force of the land but when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid only if they are consequent with the Constitution. Whatsoever police force contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." As part of their inherent duty to determine the law, the federal courts take the duty to interpret and employ the Constitution and to decide whether a federal or state statute conflicts with the Constitution. All judges are jump to follow the Constitution. If in that location is a conflict, the federal courts have a duty to follow the Constitution and to treat the conflicting statute as unenforceable. The Supreme Courtroom has final appellate jurisdiction in all cases arising under the Constitution, then the Supreme Court has the ultimate say-so to decide whether statutes are consistent with the Constitution.[19]

Statements by the framers of the Constitution regarding judicial review [edit]

Constitutional Convention [edit]

During the debates at the Ramble Convention, the Founding Fathers made a number of references to the concept of judicial review. The greatest number of these references occurred during the discussion of the proposal known as the Virginia Plan. The Virginia Plan included a "council of revision" that would have examined proposed new federal laws and would have accustomed or rejected them, like to today's presidential veto. The "quango of revision" would accept included the President forth with some federal judges. Several delegates objected to the inclusion of federal judges on the council of revision. They argued the federal judiciary, through its power to declare laws unconstitutional, already had the opportunity to protect against legislative inroad, and the judiciary did not need a second mode to negate laws by participating in the council of revision. For instance, Elbridge Gerry said federal judges "would have a sufficient bank check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually set aside laws, as existence against the constitution. This was done too with general approbation."[twenty] Luther Martin said: "[A]south to the constitutionality of laws, that point volition come up before the judges in their official character. In this graphic symbol they have a negative on the laws. Join them with the executive in the revision, and they will take a double negative."[21] These and other like comments past the delegates indicated that the federal courts would take the power of judicial review.

Other delegates argued that if federal judges were involved in the law-making process through participation on the council of revision, their objectivity as judges in later deciding on the constitutionality of those laws could be impaired.[22] These comments indicated a conventionalities that the federal courts would have the power to declare laws unconstitutional.[23]

At several other points in the debates at the Ramble Convention, delegates fabricated comments indicating their belief that under the Constitution, federal judges would have the power of judicial review. For example, James Madison said: "A law violating a constitution established past the people themselves, would be considered by the Judges equally naught & void."[24] George Mason said that federal judges "could declare an unconstitutional police force void."[25] However, Mason added that the power of judicial review is not a general power to strike down all laws, just but ones that are unconstitutional:[25]

Only with regard to every police force yet unjust, oppressive or pernicious, which did non come plainly under this clarification, they would be under the necessity as Judges to give it a free class.

In all, xv delegates from ix states fabricated comments regarding the power of the federal courts to review the constitutionality of laws. All only 2 of them supported the thought that the federal courts would have the power of judicial review.[26] Some delegates to the Constitutional Convention did not speak nearly judicial review during the Convention, but did speak about it before or after the Convention. Including these additional comments by Convention delegates, scholars accept found that twenty-five or twenty-half-dozen of the Convention delegates made comments indicating support for judicial review, while three to six delegates opposed judicial review.[27] One review of the debates and voting records of the convention counted as many as twoscore delegates who supported judicial review, with 4 or 5 opposed.[28]

In their comments relating to judicial review, the framers indicated that the power of judges to declare laws unconstitutional was function of the system of separation of powers. The framers stated that the courts' power to declare laws unconstitutional would provide a check on the legislature, protecting against excessive practice of legislative ability.[29] [30]

State ratification debates [edit]

Judicial review was discussed in at least seven of the thirteen state ratifying conventions, and was mentioned by almost two dozen delegates. In each of these conventions, delegates asserted that the proposed Constitution would allow the courts to exercise judicial review. There is no record of whatsoever delegate to a country ratifying convention who indicated that the federal courts would non accept the power of judicial review.[31]

For example, James Wilson asserted in the Pennsylvania ratifying convention that federal judges would exercise judicial review: "If a police should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of regime being divers, will declare such law to be null and void. For the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto will not take the force of law."[32]

In the Connecticut ratifying convention, Oliver Ellsworth too described judicial review equally a feature of the Constitution: "This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the The states go across their powers, if they make a law which the Constitution does non authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made contained, volition declare it to be void."[33]

During the ratification process, supporters and opponents of ratification published pamphlets, essays, and speeches debating various aspects of the Constitution. Publications by over a dozen authors in at least twelve of the thirteen states asserted that nether the Constitution, the federal courts would have the ability of judicial review. There is no tape of whatever opponent to the Constitution who claimed that the Constitution did not involve a power of judicial review.[34]

After reviewing the statements made by the founders, one scholar concluded: "The prove from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the term 'judicial power' [in Article III] included the power to nullify unconstitutional laws."[35]

The Federalist Papers [edit]

The Federalist Papers, which were published in 1787–1788 to promote ratification of the Constitution, made several references to the power of judicial review. The most extensive discussion of judicial review was in Federalist No. 78, written past Alexander Hamilton, which clearly explained that the federal courts would have the ability of judicial review. Hamilton stated that under the Constitution, the federal judiciary would take the ability to declare laws unconstitutional. Hamilton asserted that this was appropriate because it would protect the people against abuse of power by Congress:

[T]he courts were designed to be an intermediate body betwixt the people and the legislature, in gild, amidst other things, to keep the latter within the limits assigned to their authority. The estimation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, equally a fundamental law. It therefore belongs to them to ascertain its meaning, too as the significant of any particular act proceeding from the legislative trunk. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to exist 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.

Nor does this determination by whatsoever means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions past the key laws, rather than by those which are not fundamental. ...

[A]ccordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the quondam. ...

[T]he courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.[36]

In Federalist No. 80, Hamilton rejected the thought that the power to decide the constitutionality of an deed of Congress should lie with each of usa: "The mere necessity of uniformity in the interpretation of the national laws, decides the question. 13 independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and defoliation can proceed."[37] Consistent with the need for uniformity in interpretation of the Constitution, Hamilton explained in Federalist No. 82 that the Supreme Court has say-so to hear appeals from the country courts in cases relating to the Constitution.[38]

The arguments against ratification by the Anti-Federalists agreed that the federal courts would accept the ability of judicial review, though the Anti-Federalists viewed this negatively. Robert Yates, writing under the pseudonym "Brutus", stated:

[T]he judges nether this constitution volition control the legislature, for the supreme court are authorised in the concluding resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and in that location is no power to a higher place them to gear up aside their judgment. ... The supreme court and so have a right, independent of the legislature, to give a construction to the constitution and every role of information technology, and there is no power provided in this system to correct their structure or practice it away. If, therefore, the legislature laissez passer any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void.[39]

Judicial review between the adoption of the Constitution and Marbury [edit]

Judiciary Act of 1789 [edit]

The starting time Congress passed the Judiciary Human activity of 1789, establishing the lower federal courts and specifying the details of federal court jurisdiction. Department 25 of the Judiciary Act provided for the Supreme Court to hear appeals from land courts when the state courtroom decided that a federal statute was invalid, or when the state court upheld a state statute against a merits that the state statute was repugnant to the Constitution. This provision gave the Supreme Court the power to review state court decisions involving the constitutionality of both federal statutes and state statutes. The Judiciary Deed thereby incorporated the concept of judicial review.

Court decisions from 1788 to 1803 [edit]

Between the ratification of the Constitution in 1788 and the decision in Marbury 5. Madison in 1803, judicial review was employed in both the federal and state courts. A detailed analysis has identified thirty-1 land or federal cases during this time in which statutes were struck down as unconstitutional, and seven boosted cases in which statutes were upheld merely at least one judge concluded the statute was unconstitutional.[forty] The author of this analysis, Professor William Treanor, ended: "The sheer number of these decisions not simply belies the notion that the establishment of judicial review was created past Master Justice Marshall in Marbury, it also reflects widespread acceptance and application of the doctrine."[41]

Several other cases involving judicial review issues reached the Supreme Court earlier the issue was definitively decided in Marbury in 1803.

In Hayburn'due south Case, 2 U.South. (2 Dall.) 408 (1792), federal excursion courts held an human action of Congress unconstitutional for the first fourth dimension. Three federal circuit courts constitute that Congress had violated the Constitution by passing an deed requiring excursion court judges to decide pension applications, subject field to the review of the Secretary of War. These circuit courts found that this was not a proper judicial function under Commodity Three. These three decisions were appealed to the Supreme Court, but the appeals became moot when Congress repealed the statute while the appeals were pending.[42]

In an unreported Supreme Courtroom determination in 1794, United states of america v. Yale Todd,[43] the Supreme Court reversed a alimony that was awarded under the same pension act that had been at issue in Hayburn's Instance. The Court apparently decided that the deed designating judges to determine pensions was not constitutional considering this was not a proper judicial role. This apparently was the first Supreme Court case to find an act of Congress unconstitutional. Even so, there was not an official written report of the case and it was not used as a precedent.

Hylton v. The states, 3 U.S. (iii Dall.) 171 (1796), was the first case decided by the Supreme Court that involved a challenge to the constitutionality of an act of Congress. It was argued that a federal tax on carriages violated the constitutional provision regarding "directly" taxes. The Supreme Court upheld the revenue enhancement, finding it was ramble. Although the Supreme Court did not strike down the act in question, the Court engaged in the procedure of judicial review by considering the constitutionality of the tax. The instance was widely publicized at the time, and observers understood that the Courtroom was testing the constitutionality of an act of Congress.[44] Because it found the statute valid, the Courtroom did non take to affirm that it had the power to declare a statute unconstitutional.[45]

In Ware v. Hylton, 3 U.Southward. (iii Dall.) 199 (1796), the Supreme Court for the first time struck down a state statute. The Court reviewed a Virginia statute regarding pre-Revolutionary state of war debts and establish that it was inconsistent with the peace treaty between the U.s.a. and Great Britain. Relying on the Supremacy Clause, the Court found the Virginia statute invalid.

In Hollingsworth v. Virginia, 3 U.Southward. (3 Dall.) 378 (1798), the Supreme Court found that information technology did not have jurisdiction to hear the case because of the jurisdiction limitations of the Eleventh Amendment. This holding could be viewed as an implicit finding that the Judiciary Act of 1789, which would have allowed the Court jurisdiction, was unconstitutional in function. However, the Court did not provide any reasoning for its determination and did not say that information technology was finding the statute unconstitutional.[46]

In Cooper v. Telfair, 4 U.Southward. (4 Dall.) 14 (1800), Justice Hunt stated: "It is indeed a full general opinion—it is expressly admitted past all this bar and some of the judges accept, individually in the circuits decided, that the Supreme Courtroom can declare an act of Congress to be unconstitutional, and therefore invalid, but there is no adjudication of the Supreme Court itself upon the point."[47]

Responses to the Kentucky and Virginia Resolutions [edit]

In 1798, the Kentucky and Virginia legislatures passed a series of resolutions asserting that the states have the power to determine whether acts of Congress are ramble. In response, ten states passed their own resolutions disapproving the Kentucky and Virginia Resolutions.[48] Half dozen of these states took the position that the power to declare acts of Congress unconstitutional lies in the federal courts, not in the state legislatures. For case, Vermont'due south resolution stated: "It belongs non to state legislatures to decide on the constitutionality of laws made by the full general government; this power being exclusively vested in the judiciary courts of the Union."[49]

Thus, five years before Marbury v. Madison, a number of state legislatures stated their understanding that under the Constitution, the federal courts possess the ability of judicial review.

Marbury v. Madison [edit]

Marbury was the start Supreme Court conclusion to strike down an act of Congress as unconstitutional. Primary Justice John Marshall wrote the opinion for a unanimous Courtroom.

The case arose when William Marbury filed a lawsuit seeking an lodge (a "writ of mandamus") requiring the Secretarial assistant of Country, James Madison, to evangelize to Marbury a commission appointing him equally a justice of the peace. Marbury filed his case directly in the Supreme Court, invoking the Court'due south "original jurisdiction", rather than filing in a lower court.[l]

The constitutional issue involved the question of whether the Supreme Court had jurisdiction to hear the case.[51] The Judiciary Human action of 1789 gave the Supreme Court original jurisdiction in cases involving writs of mandamus. So, under the Judiciary Human action, the Supreme Court would accept had jurisdiction to hear Marbury's case. Still, the Constitution describes the cases in which the Supreme Courtroom has original jurisdiction, and does not include mandamus cases.[52] The Judiciary Act therefore attempted to give the Supreme Court jurisdiction that was not "warranted past the Constitution."[53]

Marshall's opinion stated that in the Constitution, the people established a authorities of limited powers: "The powers of the Legislature are defined and express; and that those limits may not be mistaken or forgotten, the Constitution is written." The limits established in the Constitution would be meaningless "if these limits may at any time be passed by those intended to be restrained." Marshall observed that the Constitution is "the fundamental and paramount law of the nation", and that information technology cannot be altered by an ordinary act of the legislature. Therefore, "an act of the Legislature repugnant to the Constitution is void."[54]

Marshall then discussed the role of the courts, which is at the heart of the doctrine of judicial review. It would be an "absurdity", said Marshall, to require the courts to apply a law that is void. Rather, it is the inherent duty of the courts to translate and employ the Constitution, and to determine whether in that location is a conflict between a statute and the Constitution:

It is emphatically the province and duty of the Judicial Department to say what the police force is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If ii laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution utilise to a particular case, and then that the Courtroom must either make up one's mind that instance conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the constabulary, the Court must determine which of these alien rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to whatever ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. ...[55]

Marshall stated that the courts are authorized past the provisions of the Constitution itself to "look into" the Constitution, that is, to interpret and use it, and that they have the duty to pass up to enforce any laws that are contrary to the Constitution. Specifically, Article III provides that the federal judicial power "is extended to all cases arising under the Constitution." Article Six requires judges to take an adjuration "to support this Constitution." Article 6 also states that only laws "made in pursuance of the Constitution" are the law of the land. Marshall concluded: "Thus, the item phraseology of the Constitution of the Us confirms and strengthens the principle, supposed to exist essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, every bit well as other departments, are bound by that instrument."[56]

Marbury long has been regarded every bit the seminal case with respect to the doctrine of judicial review. Some scholars accept suggested that Marshall'due south opinion in Marbury essentially created judicial review. In his volume The Least Dangerous Co-operative, Professor Alexander Bickel wrote:

[T]he institution of the judiciary needed to exist summoned up out of the constitutional vapors, shaped, and maintained. And the Great Main Justice, John Marshall—not single-handed, only first and foremost—was in that location to exercise it and did. If whatever social process tin can be said to have been 'done' at a given time, and by a given act, it is Marshall's accomplishment. The fourth dimension was 1803; the act was the conclusion in the case of Marbury 5. Madison.[57]

Other scholars view this as an overstatement, and argue that Marbury was decided in a context in which judicial review already was a familiar concept. These scholars point to the facts showing that judicial review was best-selling past the Constitution'southward framers, was explained in the Federalist Papers and in the ratification debates, and was used by both state and federal courts for more than twenty years earlier Marbury. Including the Supreme Court in Hylton 5. United States. I scholar ended: "[B]efore Marbury, judicial review had gained wide support."[58]

Judicial review after Marbury [edit]

Marbury was the signal at which the Supreme Court adopted a monitoring office over government deportment.[59] After the Court exercised its ability of judicial review in Marbury, it avoided hitting down a federal statute during the next fifty years. The court would not do so again until Dred Scott v. Sandford, lx U.S. (19 How.) 393 (1857).[60]

Nevertheless, the Supreme Court did exercise judicial review in other contexts. In particular, the Court struck downwards a number of state statutes that were contrary to the Constitution. The kickoff instance in which the Supreme Court struck down a state statute equally unconstitutional was Fletcher v. Peck, 10 U.Southward. (vi Cranch) 87 (1810).[61]

In a few cases, state courts took the position that their judgments were last and were not subject to review by the Supreme Court. They argued that the Constitution did not requite the Supreme Court the authorization to review state court decisions. They asserted that the Judiciary Act of 1789, which provided that the Supreme Court could hear certain appeals from state courts, was unconstitutional. In effect, these state courts were asserting that the principle of judicial review did not extend to allow federal review of country courtroom decisions. This would have left the states gratis to prefer their ain interpretations of the Constitution.

The Supreme Court rejected this argument. In Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), the Court held that under Commodity Three, the federal courts have jurisdiction to hear all cases arising under the Constitution and laws of the United states of america, and that the Supreme Court has appellate jurisdiction in all such cases, whether those cases are filed in state or federal courts. The Court issued another decision to the same event in the context of a criminal case, Cohens v. Virginia, 19 U.Southward. (half dozen Wheat.) 264 (1821). Information technology is now well established that the Supreme Courtroom may review decisions of state courts that involve federal law.

The Supreme Court besides has reviewed actions of the federal executive branch to decide whether those actions were authorized past acts of Congress or were beyond the authorisation granted past Congress.[62]

Judicial review is now well established as a cornerstone of ramble law. As of September 2017, the United States Supreme Court had held unconstitutional portions or the entirety of some 182 Acts of the U.S. Congress, the most recently in the Supreme Court's June 2017 Matal 5. Tam and 2019 Iancu five. Brunetti decisions hitting down a portion of July 1946's Lanham Act every bit they infringe on Freedom of Speech.

Criticism of judicial review [edit]

Although judicial review has now become an established part of constitutional law in the U.s.a., at that place are some who disagree with the doctrine.

One of the beginning critics of judicial review was Richard Dobbs Spaight, a signer of the Constitution. In a correspondence with Supreme Court Justice James Iredell, Spaight wrote of his disapproval of the doctrine:[63] [64] [65]

I practise not pretend to vindicate the law, which has been the subject of controversy: it is immaterial what law they accept declared void; information technology is their usurpation of the authorization to do it, that I mutter of, equally I exercise most positively deny that they have any such power; nor can they discover any thing in the Constitution, either directly or impliedly, that will support them, or give them any color of right to exercise that authority.[66]

At the Constitutional Convention, neither proponents nor opponents of judicial review disputed that whatsoever regime based on a written constitution requires some mechanism to prevent laws that violate that constitution from being made and enforced. Otherwise, the document would exist meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of regime (the British doctrine of parliamentary sovereignty). The delegates at the Convention differed with respect to the question of whether Congress or the judiciary should brand determinations regarding constitutionality of statutes. Hamilton addressed this in Federalist No. 78, in which he explained the reasons that the federal judiciary has the role of reviewing the constitutionality of statutes:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, information technology may exist answered, that this cannot be the natural presumption, where it is not to be collected from any detail provisions in the Constitution. It is not otherwise to exist supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate trunk between the people and the legislature, in lodge, among other things, to keep the latter within the limits assigned to their say-so.[67]

Since the adoption of the Constitution, some have argued that the power of judicial review gives the courts the ability to impose their own views of the law, without an adequate check from any other branch of authorities. Robert Yates, a delegate to the Constitutional Convention from New York, argued during the ratification procedure in the Anti-Federalist Papers that the courts would use the power of judicial review loosely to impose their views near the "spirit" of the Constitution:

[I]n their decisions they will non confine themselves to whatever fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may exist, will have the force of law; considering there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court at that place is no entreatment.[68]

In 1820, Thomas Jefferson expressed his opposition to the doctrine of judicial review:

You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very unsafe doctrine indeed, and one which would identify 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 political party, for power, and the privilege of their corps. ... Their power [is] the more than unsafe as they are in part for life, and not responsible, equally the other functionaries are, to the constituent command. The Constitution has erected no such unmarried tribunal, knowing that to whatsoever hands confided, with the corruptions of fourth dimension and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign inside themselves.[69]

In 1861, Abraham Lincoln touched upon the same subject, during his first countdown address:

[T]he candid citizen must confess that if the policy of the Authorities upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the courtroom or the judges. It is a duty from which they may non shrink to decide cases properly brought before them, and information technology is no fault of theirs if others seek to turn their decisions to political purposes.[70]

Lincoln was alluding here to the case of Dred Scott five. Sandford, in which the Court had struck down a federal statute for the first time since Marbury v. Madison.[sixty]

Information technology has been argued that the judiciary is not the only co-operative of government that may interpret the significant of the Constitution.[ who? ] Article VI requires federal and state officeholders to be bound "by Oath or Affirmation, to back up this Constitution." It has been argued that such officials may follow their own interpretations of the Constitution, at least until those interpretations have been tested in courtroom.

Some have argued that judicial review exclusively past the federal courts is unconstitutional[71] based on ii arguments. First, the power of judicial review is not expressly delegated to the federal courts in the Constitution. The 10th Amendment reserves to the states (or to the people) those powers non expressly delegated to the federal regime. The second argument is that the states lonely take the power to ratify changes to the "supreme law" (the U.S. Constitution), and each land's agreement of the language of the amendment therefore becomes germane to its implementation and effect, making it necessary that the states play some role in interpreting its meaning. Under this theory, allowing just federal courts to definitively conduct judicial review of federal law allows the national government to interpret its ain restrictions as it sees fit, with no meaningful input from the ratifying, that is, validating power.

Standard of review [edit]

In the United states, unconstitutionality is the merely basis for a federal courtroom to strike downwards a federal statute. Justice Washington, speaking for the Marshall Courtroom, put it this way in an 1829 case:

We intend to make up one's mind no more than than that the statute objected to in this instance is not repugnant to the Constitution of the United States, and that unless information technology exist so, this Court has no dominance, under the 25th department of the judiciary act, to re-examine and to contrary the sentence of the supreme court of Pennsylvania in the nowadays instance.[72]

If a state statute conflicts with a valid federal statute, and then courts may strike down the state statute equally an unstatutable[73] violation of the Supremacy Clause. But a federal court may not strike down a statute absent-minded a violation of federal law or of the federal Constitution.

Moreover, a suspicion or possibility of unconstitutionality is not enough for American courts to strike down a statute. Alexander Hamilton explained in Federalist 78 that the standard of review should be "irreconcilable variance" with the Constitution. Anti-federalists agreed that courts would be unable to strike downwards federal statutes absent a conflict with the Constitution. For example, Robert Yates, writing under the pseudonym "Brutus", asserted that "the courts of the general regime [will] be under obligation to discover the laws fabricated by the general legislature not repugnant to the constitution."[74]

These principles—that federal statutes can only be struck down for unconstitutionality and that the unconstitutionality must be articulate—were very common views at the time of the framing of the Constitution. For instance, George Stonemason explained during the constitutional convention that judges "could declare an unconstitutional police void. Only with regard to every law, however unjust, oppressive or pernicious, which did not come apparently under this description, they would exist under the necessity every bit Judges to give it a gratuitous course."[25]

For a number of years, the courts were relatively deferential to Congress. Justice Washington put it this way, in an 1827 case: "Information technology is only a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any police force is passed, to assume in favor of its validity, until its violation of the Constitution is proved across a reasonable doubt."[75]

Although judges normally adhered to this principle that a statute could only be deemed unconstitutional in case of a clear contradiction until the twentieth century, this presumption of constitutionality weakened somewhat during the twentieth century, every bit exemplified by the Supreme Courtroom's famous footnote four in United States v. Carolene Products Co., 304 U.S. 144 (1938), which suggested that statutes may exist subjected to closer scrutiny in certain types of cases. Nevertheless, the federal courts have not departed from the principle that courts may simply strike down statutes for unconstitutionality.

Of course, the applied implication of this principle is that a court cannot strike down a statute, even if it recognizes that the statute is evidently poorly drafted, irrational, or arises from legislators' corrupt motives, unless the flaw in the statute rises to the level of a clear ramble violation. In 2008, Justice John Paul Stevens reaffirmed this point in a concurring opinion: "[A]s I remember my esteemed erstwhile colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does non prohibit legislatures from enacting stupid laws.'"[76]

In the federal arrangement, courts may only decide bodily cases or controversies; it is non possible to request the federal courts to review a law without at least one political party having legal standing to appoint in a lawsuit. This principle ways that courts sometimes do not exercise their power of review, even when a police force is seemingly unconstitutional, for want of jurisdiction. In some country courts, such equally the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or past the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).

The U.S. Supreme Courtroom seeks to avert reviewing the Constitutionality of an act where the instance before it could be decided on other grounds, an attitude and exercise exemplifying judicial restraint. Justice Brandeis framed it thus (citations omitted):[77]

The Court developed, for its own governance in the cases within its jurisdiction, a series of rules under which it has avoided passing upon a large function of all the constitutional questions pressed upon it for decision. They are:

  1. The Court volition not pass upon the constitutionality of legislation in a friendly, non-antagonist, proceeding, declining because to make up one's mind such questions is legitimate only in the last resort, and equally a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly adjust, a party beaten in the legislature could transfer to the courts an inquiry every bit to the constitutionality of the legislative act.
  2. The Court will non anticipate a question of ramble law in accelerate of the necessity of deciding it. It is non the habit of the court to determine questions of a constitutional nature unless absolutely necessary to a decision of the case.
  3. The Courtroom volition not formulate a rule of constitutional law broader than required past the precise facts information technology applies to.
  4. The Court volition not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may exist disposed of ... If a instance tin be decided on either of two grounds, i involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
  5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its performance.
  6. The Court volition non pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
  7. When the validity of an deed of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, information technology is a primal principle that this Court will first define whether a construction of the statute is adequately possible by which the question may be avoided.

Laws limiting judicial review [edit]

Although the Supreme Court continues to review the constitutionality of statutes, Congress and the states retain some power to influence what cases come before the Court. For instance, the Constitution at Article Iii, Department two, gives Congress power to brand exceptions to the Supreme Court's appellate jurisdiction. The Supreme Courtroom has historically acknowledged that its appellate jurisdiction is defined by Congress, and thus Congress may have power to make some legislative or executive actions unreviewable. This is known every bit jurisdiction stripping.

Another manner for Congress to limit judicial review was tried in January 1868, when a bill was proposed requiring a two-thirds bulk of the Court in social club to deem any Act of Congress unconstitutional.[78] The bill was approved by the House, 116 to 39.[79] That measure died in the Senate, partly because the bill was unclear about how the bill's own constitutionality would be decided.[eighty]

Many other bills have been proposed in Congress that would require a supermajority in order for the justices to exercise judicial review.[81] During the early years of the Us, a two-thirds bulk was necessary for the Supreme Courtroom to do judicial review; considering the Courtroom and so consisted of half dozen members, a unproblematic majority and a two-thirds majority both required four votes.[82] Currently, the constitutions of 2 states require a supermajority of supreme courtroom justices in order to practise judicial review: Nebraska (five out of seven justices) and North Dakota (4 out of five justices).[81]

Administrative review [edit]

The procedure for judicial review of federal administrative regulation in the United States is set forth past the Administrative Procedure Act although the courts accept ruled such equally in Bivens v. Six Unknown Named Agents [83] that a person may bring a instance on the grounds of an implied crusade of activeness when no statutory procedure exists.

Notes [edit]

  1. ^ "The Institution of Judicial Review". Findlaw.
  2. ^ Congress, United States. "United States Statutes at Big, Volume i" – via Wikisource.
  3. ^ Marbury 5. Madison, v US (i Cranch) 137 (1803).
  4. ^ "Marbury v. Madison – John Marshall – 1803 – AMDOCS: Documents for the Study of American History".
  5. ^ See Congressional Research Services' The Constitution of the United States, Analysis And Interpretation, 2013 Supplement, pp. 49–50.
  6. ^ "Table of Laws Held Unconstitutional in Whole or in Function past the Supreme Court". U.S. Congress. Retrieved February 22, 2021.
  7. ^ Prakash, Saikrishna B.; Yoo, John C. (2003). "The Origins of Judicial Review". The University of Chicago Constabulary Review. 70 (3): 887–982. doi:x.2307/1600662. ISSN 0041-9494. JSTOR 1600662.
  8. ^ Bayard v. Singleton , 1 Northward.C. 5 (N.C. 1787).
  9. ^ Brownish, Andrew. "Bayard v. Singleton: North Carolina as the Pioneer of Judicial Review". Due north Carolina Institute of Constitutional Police force. Archived from the original on 2019-08-16. Retrieved 2019-08-sixteen .
  10. ^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, pp. 933–934.
  11. ^ Prakash and Yoo, "The Origins of Judicial Review", lxx U. of Chicago Police Review, p. 936.
  12. ^ The Judicial Co-operative of State Government: People, Procedure, and Politics
  13. ^ John Marshall: Definer of a Nation
  14. ^ The People Themselves - Pop Constitutionalism and Judicial Review, Larry Kramer
  15. ^ Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Law Review p. 939.
  16. ^ For example, James Madison referred to "the judges who refused to execute an unconstitutional law" in a Rhode Island case. Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Haven: Yale Academy Press. p. 28. Elbridge Gerry noted that "in some states, the judges had actually set aside laws, as beingness against the constitution." Farrand, The Records of the Federal Convention of 1787, vol. 1, p. 97.
  17. ^ Corwin, Edward S. (1929). "The "Higher Police force" Background of American Ramble Law". Harvard Constabulary Review. Harvard Police Review Association. 42 (3). doi:x.2307/1330694. ISSN 0017-811X. JSTOR 1330694.
  18. ^ While the Constitution does not explicitly qualify judicial review, it besides does not explicitly prohibit it, as did the Virginia Constitution of 1776. That Virginia Constitution said: "All power of suspending laws, or the execution of laws, by any say-so, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised." Virginia Constitution of 1776 Archived 2008-06-04 at the Wayback Machine via Avalon Project at Yale Law School.
  19. ^ Encounter Marbury v. Madison, 5 U.S. at 175–78.
  20. ^ See Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. ane. New Oasis: Yale University Press. p. 97.
  21. ^ Farrand, The Records of the Federal Convention of 1787, vol. 2, p. 76. Nathaniel Gorham also made comments along these lines. Encounter Rakove, Jack Northward. (1997). "The Origins of Judicial Review: A Plea for New Contexts". Stanford Law Review. 49 (five): 1031–64. doi:ten.2307/1229247. ISSN 0038-9765. JSTOR 1229247.
  22. ^ Delegates making these comments included Rufus King, Caleb Potent, Nathaniel Gorham, and John Rutledge. See Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Constabulary Review at 1058.
  23. ^ The council of revision proposed in the Virginia Plan ultimately morphed into the Presidential veto. In its terminal form, the executive alone would practice the veto, without participation by the federal judiciary.
  24. ^ Ibid., p. 93. Delegates approving of judicial review too included James Wilson and Gouverneur Morris, among others. See Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Police Review at 941–43.
  25. ^ a b c Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Haven: Yale University Press. p. 78.
  26. ^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, p. 952. The 2 delegates who disapproved judicial review, John Dickinson and John Mercer, did not suggest a provision prohibiting judicial review. During the country ratification conventions, they acknowledged that under the terminal Constitution, the courts would have the power of judicial review. Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary Review, p. 943.
  27. ^ Raoul Berger institute that twenty-six Convention delegates supported Constitution review, with 6 opposed. Berger, Raoul (1969). Congress 5. The Supreme Courtroom . Harvard University Printing. p. 104. Charles Beard counted twenty-v delegates in favor of judicial review and 3 confronting. Beard, Charles (1962) [1912]. The Supreme Courtroom and the Constitution . Prentice Hall. p. 69.
  28. ^ Melvin, Frank, "The Judicial Barrier of the Constitution", 8 American Political Science Review 167, 185–195 (1914).
  29. ^ Encounter Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Law Review at pp. 931–32.
  30. ^ James Madison at one point said that the courts' power of judicial review should be limited to cases of a judiciary nature: "He doubted whether information technology was not going too far to extend the jurisdiction of the Courtroom generally to cases arising under the Constitution and whether it ought not to exist express to cases of a judiciary nature. The right of expounding the Constitution in cases non of this nature ought non to be given to that section." Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Haven: Yale University Printing. p. 430. Madison wanted to clarify that the courts would not have a free-floating power to declare unconstitutional any law that was passed; rather, the courts would be able to dominion on constitutionality of laws only when those laws were properly presented to them in the context of a court case that came before them. See Burr, Charles, "Unconstitutional Laws and the Federal Judicial Ability", lx U. Pennsylvania Law Review 624, 630 (1912). No alter in the language was fabricated in response to Madison's comment.
  31. ^ Come across Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Police force Review at p. 965.
  32. ^ Elliot, Jonathan (1863) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 2. Philadelphia: Lippincott. p. 489.
  33. ^ Elliot, Jonathan (1863) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 2. Philadelphia: Lippincott. p. 196.
  34. ^ See Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Police force Review at pp. 973–75.
  35. ^ Barnett, Randy, "The Original Significant of Judicial Ability", 12 Supreme Court Economic Review 115, 138 (2004).
  36. ^ Hamilton, Alexander. Federalist No. 78 (June xiv, 1788). See also Federalist No. 81, which says: "[T]he Constitution ought to exist the standard of construction for the laws, and ... wherever there is an axiomatic opposition, the laws ought to requite place to the Constitution." Federalist No. 81 (June 28, 1788)
  37. ^ Federalist No. 80 (June 21, 1788)
  38. ^ Federalist No. 82 (July 2, 1788)
  39. ^ "The Trouble of Judicial Review – Teaching American History". Archived from the original on 2011-06-xxx. Retrieved 2011-05-11 .
  40. ^ Treanor, William Michael (2005). "Judicial Review before "Marbury"". Stanford Law Review. 58 (2): 455–562. ISSN 0038-9765. JSTOR 40040272.
  41. ^ Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review, p. 458.
  42. ^ Five of the half-dozen Supreme Court justices at that time had sat as circuit judges in the iii circuit court cases that were appealed. All five of them had establish the statute unconstitutional in their capacity as circuit judges.
  43. ^ There was no official report of the case. The instance is described in a note at the end of the Supreme Court'southward conclusion in United States v. Ferreira, 54 U.Southward. (xiii How.) 40 (1851).
  44. ^ Professor Jack Rakove wrote: "Hylton v. United states of america was manifestly a example of judicial review of the constitutionality of legislation, in an surface area of governance and public policy far more sensitive than that exposed by Marbury, and it was a case whose implications observers seemed to grasp." See Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Law Review at 1039–41.
  45. ^ Justice Chase's opinion stated: "[I]t is unnecessary, at this time, for me to determine, whether this courtroom, constitutionally possesses the ability to declare an act of congress void, on the ground of its being fabricated contrary to, and in violation of, the constitution."
  46. ^ Meet Treanor, "Judicial Review Before Marbury", 58 Stanford Police Review, p. 547.
  47. ^ Hunt'due south argument nigh decisions past judges in the circuits referred to Hayburn'south Case.
  48. ^ Seven states formally rejected the Kentucky and Virginia resolutions and transmitted their rejections to Kentucky and Virginia (Delaware, Massachusetts, New York, Connecticut, Rhode Island, New Hampshire, and Vermont). See Elliot, Jonathan (1907) [1836]. Debates in the Several Country Conventions on the Adoption of the Federal Constitution. Vol. iv (expanded 2nd ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-nine. . Three states passed resolutions expressing disapproval but did not transmit formal responses to Kentucky and Virginia (Maryland, Pennsylvania, and New Jersey). Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244. . The other four states took no activeness.
  49. ^ Elliot, Jonathan (1907) [1836]. "Answers of the Several State Legislatures: State of Vermont". Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 4 (expanded 2nd ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-nine. . The other states taking the position that the constitutionality of federal laws is a question for the federal courts, non the states, were New York, Massachusetts, Rhode Island, New Hampshire, and Pennsylvania. The Governor of Delaware and a Committee of the Maryland legislature also took this position. The remaining states did non address this issue. Anderson, Frank Maloy (1899). "Gimmicky Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244.
  50. ^ For a more than detailed description of the example, see Marbury v. Madison.
  51. ^ There were several not-ramble issues, including whether Marbury was entitled to the commission and whether a writ of mandamus was the appropriate remedy. The Courtroom'southward opinion dealt with those issues first, finding that Marbury was entitled to the commission and that mandamus was a proper remedy. Come across Marbury v. Madison.
  52. ^ Article III of the Constitution says: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases ... the Supreme Court shall have appellate jurisdiction."
  53. ^ Marbury, five U.S. at 175–176.
  54. ^ Marbury, v U.S., pp. 176–177.
  55. ^ Marbury, 5 U.South., pp. 177–178.
  56. ^ Marbury, five U.S., pp. 178–180.
  57. ^ Bickel, Alexander (1962). The Least Dangerous Co-operative: The Supreme Court at the Bar of Politics . Indianapolis: Bobbs-Merrill. p. 1. ISBN9780300032994.
  58. ^ Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review at 555. See also Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police force Review at 1035–41.
  59. ^ Laura Langer, Judicial Review in State Supreme Courts: A Comparative Report (Albany: Country University of New York Printing, 2002), p. 4
  60. ^ a b See Menez, Joseph et al., Summaries of Leading Cases on the Constitution, page 125 (2004).
  61. ^ The Supreme Court subsequently decided that a number of other cases finding land statutes unconstitutional. See, for example, Sturges v. Crowninshield, 17 U.S. (iv Wheat.) 122 (1819), McCulloch 5. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and Gibbons 5. Ogden, 22 U.South. (9 Wheat.) 1 (1824).
  62. ^ See Niggling five. Barreme, vi U.Due south. (2 Cranch) 170 (1804) (the "Flying Fish instance").
  63. ^ The Supreme Court and the Constitution, Charles A. Beard, pp. 70-71
  64. ^ Judicial Review and Non-enforcement at the Founding, University of Pennsylvania, p. 496
  65. ^ University of Pennsylvania Police force Review and American Law Register
  66. ^ Corwin on the Constitution, Edward Samuel Corwin
  67. ^ Hamilton, Alexander. Federalist #78 (June 14, 1788).
  68. ^ Yates, Robert (writing as "Brutus"). Anti-Federalist Papers(31 January 1788) Archived 17 August 2007 at the Wayback Machine.
  69. ^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820).
  70. ^ Lincoln, Abraham. First Inaugural Address Archived 2007-08-17 at the Wayback Car (March 4, 1861).
  71. ^ See Westward.W. Crosskey, Politics and the Constitution in the History of the United states (Chicago: 1953), chs. 27–29, with which compare Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the argue on the subject is Westin, "Introduction: Charles Beard and American Contend over Judicial Review, 1790–1961", in: C. Beard, The Supreme Court and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), ane–34, and bibliography at 133–149. Run across more at: http://constitution.findlaw.com/article3/annotation13.html#f576
  72. ^ Satterlee v. Matthewson, 27 U.S. 380 (1829).
  73. ^ "Unstatutable – Definition and More from the Free Merriam-Webster Dictionary". Merriam-Webster . Retrieved 8 May 2013.
  74. ^ "Article three, Section 2, Clause two: Brutus, no. 14".
  75. ^ Ogden v. Saunders, 25 U.S. 213 (1827).
  76. ^ New York State Bd. of Elections v. Lopez Torres, 552 U.South. ___, ___ (2008) (Stevens, J., concurring).
  77. ^ Ashwander five. Tennessee Valley Authority, 297 U.South. 288, 346–9 (1936) (Brandeis, concurring) (citing cases)
  78. ^ Schwartz, Bernard. A History of the Supreme Court, page 141 (Oxford University Press US 1995).
  79. ^ McPherson, Edward. A political manual for 1868, pages 350–351 (Philp & Solomons 1868).
  80. ^ Goldstone, Lawrence. Inherently Unequal: The Betrayal of Equal Rights past the Supreme Courtroom, 1865–1903, pages 55–56 (Bloomsbury Publishing USA 2011).
  81. ^ a b Caminker, Evan. "Thayerian Deference to Congress and Supreme Court Supermajority Dominion: Lessons From the By Archived 2012-03-09 at the Wayback Automobile", 78 Indiana Law Journal 73 (2003).
  82. ^ Nackenoff, Carol. "Ramble Reforms to Raise Autonomous Participation and Deliberation: Not All Clearly Trigger the Article V Amendment Process Archived 2012-03-nineteen at the Wayback Machine", 67 Maryland Law Review 62, 65 (2007).
  83. ^ 403 U.S. 388 (1971).

Further reading [edit]

  • Kramer, Larry D. (2004). The People Themselves. New York: Oxford Academy Press.
  • Patrick, John J., ed. (2001). "Judicial review". The Oxford guide to the United states government . Oxford University Press. p. 348. ISBN978-0-nineteen-514273-0.
  • Corwin, Edward Southward. (1914). "Marbury v. Madison and the Doctrine of Judicial Review". Michigan Police force Review. Michigan Law Review Association. 12 (7): 538–72. doi:10.2307/1274986. ISSN 0026-2234. JSTOR 1274986.
  • Wolfe, Christopher (1994). The rise of modern judicial review. Rowman & Littlefield. ISBN978-0-8226-3026-5.
  • Beard, Charles A. (1912). The Supreme Court and the Constitution. New York: Macmillan Visitor.
  • Treanor, William Yard. "The Case of the Prisoners and the Origins of Judicial Review". University of Pennsylvania Law Review. University of Pennsylvania.

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Source: https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States

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