Judicial review in the United States

Judicial review in the United States refers to the power of a court to review the constitutionality

Constitutionality

Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...

of a statute

Statute

A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

or treaty

Treaty

A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...

, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself.

The United States Constitution

United States Constitution

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

does not explicitly establish the power of judicial review. Rather, the power of judicial review has been inferred from the structure, provisions, and history of the Constitution.

In Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...

(1803), the Supreme Court ruled that the federal courts have the duty to review the constitutionality of acts of Congress and to declare them void when they are contrary to the Constitution. Marbury was the first Supreme Court case to strike down an act of Congress as unconstitutional. Since that time, the federal courts have exercised the power of judicial review. Judicial review is now a well settled doctrine.

Judicial review before the Constitution

Before the Constitutional Convention

Philadelphia Convention

The Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...

in 1787, the power 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 thirteen states had engaged in judicial review and had invalidated state statutes because they violated the state constitution or other higher law. These state courts treated state constitutions as statements of governing law to be interpreted and applied by judges. These courts reasoned that because their state constitution was the fundamental law of the state, they must apply the state constitution rather than an act of the legislature that was inconsistent with the state constitution.

These state court cases involving judicial review were reported in the press and produced public discussion and comment. At least seven of the delegates to the Constitutional Convention

Philadelphia Convention

, including Alexander Hamilton and Edmund Randolph, had personal experience with judicial review because they had been lawyers or judges in these state court cases involving judicial review. Other delegates referred to some of these state court cases during the debates at the Constitutional Convention. The concept of judicial review therefore was familiar to the framers and to the public before the Constitutional Convention.

The provisions of the Constitution

The Constitution does not expressly provide that the federal judiciary has the power of judicial review. Rather, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III

Article Three of the United States Constitution

Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...

and Article VI

Article Six of the United States Constitution

Article Six of the United States Constitution establishes the Constitution and the laws and treaties of the United States made in accordance with it as the supreme law of the land, forbids a religious test as a requirement for holding a governmental position and holds the United States under the...

.

The provisions relating to the federal judicial power in Article III state:

The Supremacy Clause

Supremacy Clause

Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...

of Article VI states:

The power of judicial review has been implied from these provisions based on the following reasoning. It is the inherent duty of the courts to determine the applicable law in any 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 law of the land only when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid only if they are consistent with the Constitution. Any law contrary to the Constitution is be 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 have the duty to interpret and apply the Constitution and to decide whether a federal or state statute conflicts with the Constitution. All judges are bound to follow the Constitution. If there is a conflict, the federal courts have a duty to follow the Constitution and to treat the conflicting statute as unenforceable. The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution, so the Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution.

The Constitutional Convention

During the debates at the Constitutional Convention

Philadelphia 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

Virginia Plan

The Virginia Plan was a proposal by Virginia delegates, for a bicameral legislative branch. The plan was drafted by James Madison while he waited for a quorum to assemble at the Constitutional Convention of 1787...

. The Virginia Plan included a "council of revision" that would have examined proposed new federal laws and would have accepted or rejected them, similar to today's presidential veto. The "council of revision" would have included the President along 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 encroachment, and the judiciary did not need a second way to negate laws by participating in the council of revision. For example, Elbridge Gerry said federal judges "would have a sufficient 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 being against the constitution. This was done too with general approbation." Luther Martin said: "[A]s to the constitutionality of laws, that point will come before the judges in their official character. In this character they have a negative on the laws. Join them with the executive in the revision, and they will have a double negative."

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. These comments indicated a belief that the federal courts would have the power to declare laws unconstitutional.

At several other points in the debates at the Constitutional Convention

Philadelphia Convention

, delegates made comments indicating their belief that under the Constitution, federal judges would have the power of judicial review. For example, George Mason said that federal judges "could declare an unconstitutional law void." James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void."

In all, fifteen delegates from nine states made comments regarding the power of the federal courts to review the constitutionality of laws. All but two of them supported the idea that the federal courts would have the power of judicial review. Some delegates to the Constitutional Convention did not speak about judicial review during the Convention, but did speak about it before or after the Convention. Including these additional comments by Convention delegates, scholars have found that twenty-five or twenty-six of the Convention delegates made comments indicating support for judicial review, while three to six delegates opposed judicial review. One review of the debates and voting records of the convention counted as many as forty delegates who supported judicial review, with four or five opposed.

In their comments relating to judicial review, the framers indicated that the power of judges to declare laws unconstitutional was part 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 exercise of legislative power.

The state ratification debates

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 any delegate to a state ratifying convention who indicated that the federal courts would not have the power of judicial review.

For example, James Wilson asserted in the Pennsylvania ratifying convention that federal judges would exercise judicial review: "If a law 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 government being defined, 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 have the force of law."

In the Connecticut ratifying convention, Oliver Ellsworth likewise described judicial review as 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 United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void."

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 under the Constitution, the federal courts would have the power of judicial review. There is no record of any opponent to the Constitution who claimed that the Constitution did not involve a power of judicial review.

After reviewing the statements made by the founders, one scholar concluded: "The evidence 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."

The Federalist Papers

Federalist Papers

The Federalist Papers are a series of 85 articles or essays promoting the ratification of the United States Constitution. Seventy-seven of the essays were published serially in The Independent Journal and The New York Packet between October 1787 and August 1788...

, 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

Federalist No. 78

Federalist No. 78 is an essay by Alexander Hamilton, the seventy-eighth of the Federalist Papers. Like all of the Federalist Papers, it was published under the pseudonym Publius....

, written by Alexander Hamilton

Alexander Hamilton

Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...

. Hamilton stated that under the Constitution, the federal judiciary would have the power to declare laws unconstitutional. Hamilton asserted that this was appropriate because it would protect the people against abuse of power by Congress:
In Federalist No. 80

Federalist No. 80

Federalist No. 80 is an essay by Alexander Hamilton and the eightieth of the Federalist Papers. It was published on June 21, 1788 under the pseudonym Publius, the name under which all the Federalist Papers were published...

, Hamilton rejected the idea that the power to decide the constitutionality of an act of Congress should lie with each of the states: "The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen 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 confusion can proceed." Consistent with the need for uniformity in interpretation of the Constitution, Hamilton explained in Federalist No. 82

Federalist No. 82

Federalist No. 82 is an essay by Alexander Hamilton and the eighty-second of the Federalist Papers. It was published on July 2, 1788 under the pseudonym Publius, the name under which all the Federalist Papers were published...

that the Supreme Court has authority to hear appeals from the state courts in cases relating to the Constitution.

The arguments against ratification by the Anti-Federalists

Anti-Federalist Papers

The Anti-Federalist Papers are a collection of articles, written in opposition to the ratification of the 1787 United States Constitution. Unlike the Federalist Papers written in support of the Constitution, the authors of these articles, mostly operating under pen names, were not engaged in a...

agreed that the federal courts would have the power of judicial review, though the Anti-Federalists viewed this negatively. Robert Yates

Robert Yates (politician)

Robert Yates was a politician and judge well known for his Anti-Federalist stances. He is also well known as the presumed author of political essays published in 1787 and 1788 under the pseudonyms "Brutus" and "Sydney"...

, writing under the pseudonym "Brutus," stated:

The Judiciary Act of 1789

The first Congress passed the Judiciary Act of 1789, establishing the lower federal courts and specifying the details of federal court jurisdiction. Section 25 of the Judiciary Act provided for the Supreme Court to hear appeals from state courts when the state court decided that a federal statute was invalid, or when the state court upheld a state statute against a claim 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 Act thereby incorporated the concept of judicial review.

Court decisions from 1788 to 1803

Between the ratification of the Constitution in 1788 and the decision in Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...

in 1803, judicial review was employed in both the federal and state courts. A detailed analysis has identified thirty-one state or federal cases during this time in which statutes were struck down as unconstitutional, and seven additional cases in which statutes were upheld but at least one judge concluded the statute was unconstitutional. The author of this analysis, Professor William Treanor, concluded: "The sheer number of these decisions not only belies the notion that the institution of judicial review was created by Chief Justice Marshall in Marbury, it also reflects widespread acceptance and application of the doctrine."

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

In Hayburn's Case
Hayburn's Case
Hayburn's Case, 2 U.S. 409 , was a case in which the Supreme Court of the United States was invited to rule on whether certain non-judicial duties could be assigned by Congress to the federal circuit courts in their official capacity. This was the first time that the Supreme Court addressed the...

, 2 U.S. (2 Dall.) 408 (1792), federal circuit courts held an act of Congress unconstitutional for the first time. Three federal circuit courts found that Congress had violated the Constitution by passing an act requiring circuit court judges to decide pension applications, subject to the review of the Secretary of War. These circuit courts found that this was not a proper judicial function under Article III. These three decisions were appealed to the Supreme Court, but the appeals became moot when Congress repealed the statute while the appeals were pending.

In an unreported Supreme Court decision in 1794, United States v. Yale Todd, the Supreme Court reversed a pension that was awarded under the same pension act that had been at issue in Hayburn's Case. The Court apparently decided that the act designating judges to decide pensions was not constitutional because this was not a proper judicial function. This apparently was the first Supreme Court case to find an act of Congress unconstitutional. However, there was not an official report of the case and it was not used as a precedent.

Hylton v. United States
Hylton v. United States
Hylton v. United States, , was an early United States Supreme Court case in which the Court held that a tax on carriages did not violate the Article I, Section 9 requirement for the apportioning of direct taxes. It found the carriage tax was an "excise" instead of a "direct tax" requiring...

, 3 U.S. (3 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 "direct" taxes. The Supreme Court upheld the tax, finding it was constitutional. Although the Supreme Court did not strike down the act in question, the Court engaged in the process of judicial review by considering the constitutionality of the tax. The case was widely publicized at the time, and observers understood that the Court was testing the constitutionality of an act of Congress. Because it found the statute valid, the Court did not have to assert that it had the power to declare a statute unconstitutional.

In Ware v. Hylton
Ware v. Hylton
Ware v. Hylton is the short name of a United States Supreme Court case where a divided court ruled that an article in the Treaty of Paris, which provided that debtors on both sides should meet no lawful impediment when recovering bona fide debts, took precedence and overruled a Virginia law passed...

, 3 U.S. (3 Dall.) 199 (1796), the Supreme Court for the first time struck down a state statute. The Court reviewed a Virginia statute regarding pre-Revolutionary war debts and found that it was inconsistent with the peace treaty

Treaty of Paris (1783)

The Treaty of Paris, signed on September 3, 1783, ended the American Revolutionary War between Great Britain on the one hand and the United States of America and its allies on the other. The other combatant nations, France, Spain and the Dutch Republic had separate agreements; for details of...

between the United States and Great Britain. Relying on the Supremacy Clause, the Court found the Virginia statute invalid.

In Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), Justice Chase stated: "It is indeed a general opinion -- it is expressly admitted by all this bar and some of the judges have, individually in the circuits decided, that the Supreme Court 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."

Responses to the Kentucky and Virginia Resolutions

In 1798, the Kentucky and Virginia legislatures passed a series of resolutions

Kentucky and Virginia Resolutions

The Kentucky and Virginia Resolutions were political statements drafted in 1798 and 1799, in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional...

asserting that the states have the power to determine whether acts of Congress are constitutional. In response, ten states passed their own resolutions disapproving the Kentucky and Virginia resolutions

Kentucky and Virginia Resolutions

. Six 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 example, Vermont's resolution stated: "It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union."

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

Marbury v. Madison

The Supreme Court's landmark decision regarding judicial review is Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...

, 5 U.S. (1 Cranch) 137 (1803). Marbury was the first Supreme Court decision to strike down an act of Congress as unconstitutional. Chief Justice John Marshall

John Marshall

John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...

wrote the opinion for a unanimous Court.

The case arose when William Marbury filed a lawsuit seeking an order (a "writ of mandamus

Mandamus

A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...

") requiring the Secretary of State, James Madison, to deliver to Marbury a commission appointing him as a justice of the peace. Marbury filed his case directly in the Supreme Court, invoking the Court's "original jurisdiction

Original jurisdiction

The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...

", rather than filing in a lower court.

The constitutional issue involved the question of whether the Supreme Court had jurisdiction to hear the case. The Judiciary Act of 1789

Judiciary Act of 1789

The United States Judiciary Act of 1789 was a landmark statute adopted on September 24, 1789 in the first session of the First United States Congress establishing the U.S. federal judiciary...

gave the Supreme Court original jurisdiction

Original jurisdiction

The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...

in cases involving writs of mandamus. So, under the Judiciary Act, the Supreme Court would have had jurisdiction to hear Marbury's case. However, the Constitution describes the cases in which the Supreme Court has original jurisdiction, and does not include mandamus cases. The Judiciary Act therefore attempted to give the Supreme Court jurisdiction that was not "warranted by the Constitution."

Marshall's opinion stated that in the Constitution, the people established a government of limited powers: "The powers of the Legislature are defined and limited; 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 it cannot be altered by an ordinary act of the legislature. Therefore, "an act of the Legislature repugnant to the Constitution is void."

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 interpret and apply the Constitution, and to determine whether there is a conflict between a statute and the Constitution:

Marshall stated that the courts are authorized by the provisions of the Constitution itself to "look into" the Constitution, that is, to interpret and apply it, and that they have the duty to refuse 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 VI

Article Six of the United States Constitution

requires judges to take an oath "to support this Constitution." Article VI also states that only laws "made in pursuance of the Constitution" are the law of the land. Marshall concluded: "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."

Marbury long has been regarded as the seminal case with respect to the doctrine of judicial review. Some scholars have suggested that Marshall's opinion in Marbury essentially created judicial review. In his book The Least Dangerous Branch, Professor Alexander Bickel wrote: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 acknowledged by the Constitution's 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 before Marbury, including the Supreme Court in Hylton v. United States. One scholar concluded: "[B]efore Marbury, judicial review had gained wide support."

Judicial review after Marbury

After the Court exercised its power of judicial review in Marbury, it avoided striking down a federal statute during the next fifty years. The court would not do so again until Dred Scott v. Sandford
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...

, 60 U.S. (19 How.) 393 (1857).

However, the Supreme Court did exercise judicial review in other contexts. In particular, the Court struck down a number of state statutes that were contrary to the Constitution. The first case in which the Supreme Court struck down a state statute as unconstitutional was Fletcher v. Peck
Fletcher v. Peck
Fletcher v. Peck, , was a landmark United States Supreme Court decision. The first case in which the Supreme Court ruled a state law unconstitutional, the decision also helped create a growing precedent for the sanctity of legal contracts, and hinted that Native Americans did not hold title to...

, 10 U.S. (6 Cranch) 87 (1810).

In a few cases, state courts took the position that their judgments were final and were not subject to review by the Supreme Court. They argued that the Constitution did not give the Supreme Court the authority to review state court decisions. They asserted that the Judiciary Act of 1789

Judiciary Act of 1789

The United States Judiciary Act of 1789 was a landmark statute adopted on September 24, 1789 in the first session of the First United States Congress establishing the U.S. federal judiciary...

, 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 state court decisions. This would have left the states free to adopt their own interpretations of the Constitution.

The Supreme Court rejected this argument. In Martin v. Hunter's Lessee
Martin v. Hunter's Lessee
Martin v. Hunter's Lessee, , was a landmark United States Supreme Court case decided on March 20, 1816. It was the first case to assert ultimate Supreme Court authority over state courts in matters of federal law.-Background:...

, 14 U.S. (1 Wheat.) 304 (1816), the Court held that under Article III, the federal courts have jurisdiction to hear all cases arising under the Constitution and laws of the United States, 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 effect in the context of a criminal case, Cohens v. Virginia
Cohens v. Virginia
Cohens v. Virginia, , was a United States Supreme Court decision most noted for John Marshall and the Court's assertion of its power to review state supreme court decisions in criminal law matters when the plaintiff claims that their Constitutional rights have been violated...

, 19 U.S. (6 Wheat.) 264 (1821). It is now well established that the Supreme Court may review decisions of state courts that involve federal law.

The Supreme Court also has reviewed actions of the federal executive branch to determine whether those actions were authorized by acts of Congress or were beyond the authority granted by Congress.

Judicial review is now well established as a cornerstone of constitutional law. , the United States Supreme Court had held unconstitutional some 163 Acts of the U.S. Congress.

Criticism of judicial review

Although judicial review has now become an established part of constitutional law in the United States, there are some who disagree with the doctrine.

At the Constitutional Convention, neither proponents nor opponents of judicial review disputed that any government based on a written constitution requires some mechanism to prevent laws that violate that constitution from being made and enforced. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government (the British doctrine of parliamentary sovereignty

Parliamentary sovereignty

Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...

). The delegates at the Convention differed with respect to the question of whether Congress or the judiciary should make determinations regarding constitutionality of statutes. Hamilton

Alexander Hamilton

Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...

addressed this in Federalist No. 78

Federalist No. 78

Federalist No. 78 is an essay by Alexander Hamilton, the seventy-eighth of the Federalist Papers. Like all of the Federalist Papers, it was published under the pseudonym Publius....

, in which he explained the reasons that the federal judiciary has the role of reviewing the constitutionality of statutes:
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 government. Robert Yates

Robert Yates (politician)

, a delegate to the Constitutional Convention

Philadelphia Convention

from New York

New York

New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

, argued during the ratification process in the Anti-Federalist Papers that the courts would use the power of judicial review loosely to impose their views about the "spirit" of the Constitution:
In 1820, Thomas Jefferson

Thomas Jefferson

Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...

expressed his deep reservations about the doctrine of judicial review:
In 1861, Abraham Lincoln touched upon the same subject, during his first inaugural address:
Lincoln was alluding here to the case of Dred Scott v. Sandford
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...

, in which the Court had struck down a federal statute for the first time since Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...

.

It has been argued that the judiciary is not the only branch of government that may interpret the meaning of the Constitution. Article VI

Article Six of the United States Constitution

requires federal and state officeholders to be bound "by Oath or Affirmation, to support 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 court.

Some have argued that judicial review is unconstitutional. This is generally based on two grounds. First, the power of judicial review is not expressly delegated to the courts in the Constitution. The Tenth Amendment

Tenth Amendment to the United States Constitution

The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...

reserves to the states (or to the people) those powers not delegated to the federal government. The second argument is that the states alone have the power to ratify changes to the "supreme law" (the U.S. Constitution), and that the states should play some role in interpreting its meaning. Under this theory, allowing only federal courts to definitively conduct judicial review of federal law allows the national government to interpret its own restrictions as it sees fit, with no meaningful input from the ratifying power.

Standard of review

In the United States, unconstitutionality is the only ground for a federal court to strike down a federal statute. Justice Washington

Bushrod Washington

Bushrod Washington was a U.S. Supreme Court associate justice and the nephew of George Washington.Washington was born in Westmoreland County, Virginia, and was the son of John Augustine Washington, brother of the first president. Bushrod attended Delamere, an academy administered by the Rev....

, speaking for the Marshall Court, put it this way in an 1829 case:
If a state statute conflicts with a valid federal statute, then courts may strike down the state statute as a violation of the Supremacy Clause

Supremacy Clause

. But a federal court may not strike down a statute absent 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

Alexander Hamilton

Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...

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 down federal statutes absent a conflict with the Constitution. For example, Robert Yates

Robert Yates (politician)

, writing under the pseudonym "Brutus", asserted that "the courts of the general government [will] be under obligation to observe the laws made by the general legislature not repugnant to the constitution."

These principles—that federal statutes can only be struck down for unconstitutionality and that the unconstitutionality must be clear—were very common views at the time of the framing of the Constitution. For example, George Mason

George Mason

George Mason IV was an American Patriot, statesman and a delegate from Virginia to the U.S. Constitutional Convention...

explained during the constitutional convention that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course."

For a number of years, the courts were relatively deferential to Congress. Justice Washington put it this way, in an 1827 case: "It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt."

Although judges usually 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

Presumption of constitutionality

A presumption of constitutionality shifts the burden of proof from the government to the citizen, requiring them to prove that a statute is unconstitutional....

weakened somewhat during the twentieth century, as exemplified by the Supreme Court's famous footnote four in United States v. Carolene Products Co.
United States v. Carolene Products Co.
United States v. Carolene Products Company, 304 U.S. 144 , was an April 25, 1938 decision by the United States Supreme Court. The case dealt with a federal law that prohibited filled milk from being shipped in interstate commerce...

, 304 U.S. 144 (1938), which suggested that statutes may be subjected to closer scrutiny in certain types of cases. Nevertheless, the federal courts have not departed from the principle that courts may only strike down statutes for unconstitutionality.

Of course, the practical implication of this principle is that a court cannot strike down a statute, even if it recognizes that the statute is obviously poorly drafted, irrational, or arises from legislators' corrupt motives, unless the flaw in the statute rises to the level of a clear constitutional violation. In 2008, Justice John Paul Stevens

John Paul Stevens

John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...

reaffirmed this point in a concurring opinion

Concurring opinion

In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...

: "[A]s I recall my esteemed former colleague, Thurgood Marshall

Thurgood Marshall

Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...

, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'"

In the federal system, courts may only decide actual cases or controversies; it is not possible to request the federal courts to review a law without at least one party having legal standing to engage in a lawsuit. This principle means that courts sometimes do not exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court

Massachusetts Supreme Judicial Court

The Massachusetts Supreme Judicial Court is the highest court in the Commonwealth of Massachusetts. The SJC has the distinction of being the oldest continuously functioning appellate court in the Western Hemisphere.-History:...

, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).

The U.S. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the case before it could be decided on other grounds. Justice Brandeis

Louis Brandeis

Louis Dembitz Brandeis ; November 13, 1856 – October 5, 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939.He was born in Louisville, Kentucky, to Jewish immigrant parents who raised him in a secular mode...

framed it thus (citations omitted):

Laws limiting judicial review

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 example, the Constitution at Article III, Section 2, gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction. The Supreme Court 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 as jurisdiction stripping

Jurisdiction stripping

Jurisdiction stripping, also called curtailment of jurisdiction or court stripping, refers to the congressional practice of defining the jurisdiction of the United States federal judiciary as to eliminate its ability to hear certain classes of claims, thereby making certain legislative or executive...

.

Additionally, states may choose to exercise sovereign immunity

Sovereign immunity

Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....

from lawsuits in certain situations.

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

Many other bills have been proposed in Congress that would require a supermajority in order for the justices to exercise judicial review. During the early years of the United States, a two-thirds majority was necessary for the Supreme Court to exercise judicial review; because the Court then consisted of six members, a simple majority and a two-thirds majority both required four votes. Currently, the constitutions of two states require a supermajority of supreme court justices in order to exercise judicial review: Nebraska (five out of seven justices) and North Dakota (four out of five justices).

Administrative review

The procedure for judicial review of federal administrative regulation in the United States is set forth by the Administrative Procedure Act

Administrative Procedure Act

The Administrative Procedure Act , , is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review...

although the courts have ruled such as in Bivens v. Six Unknown Named Agents that a person may bring a case on the grounds of an implied cause of action

Implied cause of action

Implied cause of action is a term used in United States statutory and constitutional law for circumstances when a court will determine that a law that creates rights also allows private parties to bring a lawsuit, even though no such remedy is explicitly provided for in the law...

when no statutory procedure exists.