The Supreme Court Declared Its Right to Review the Constitutionality of Laws

Ability of a courtroom in the United states of america to examine laws to make up one's mind if it contradicts electric current laws

In the United States, judicial review is the legal power of a court to decide if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the Us Constitution. While the U.S. Constitution does non explicitly define the ability of judicial review, the authority for judicial review in the Us has been inferred from the structure, provisions, and history of the Constitution.^[1]

Two landmark decisions by the U.Due south. Supreme Courtroom served to confirm the inferred ramble authorization for judicial review in the The states. In 1796, Hylton v. Us was the get-go case decided by the Supreme Court involving a direct claiming to the constitutionality of an human action of Congress, the Carriage Act of 1794 which imposed a "carriage tax".^[2] The Court performed judicial review of the plaintiff's claim that the carriage tax was unconstitutional. Later on review, the Supreme Court decided the Carriage Deed was ramble. In 1803, Marbury v. Madison ^[three] was the first Supreme Court instance where the Court asserted its dominance to strike down a law as unconstitutional. At the end of his stance in this decision,^[4] Master Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of role to uphold the Constitution every bit instructed in Article Half dozen of the Constitution.

As of 2014^[update], the The states Supreme Court has held 176 Acts of the U.South. Congress unconstitutional.^[5] In the period 1960–2019, the Supreme Court has held 483 laws unconstitutional in whole or in part.^[6]

Judicial review before the Constitution [edit]

If the whole legislature, an consequence to be deprecated, should attempt to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, hither is the limit of your authorisation; and, hither, shall you lot go, merely no further.

—George Wythe in Democracy 5. Caton

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

—Alexander Hamilton in Federalist No. 78

Earlier the Constitutional Convention 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 vii of the thirteen states had engaged in judicial review and had invalidated state statutes because they violated the land constitution or other college police force.^[7] The start American decision to recognize the principle of judicial review was Bayard five. Singleton,^[8] decided in 1787 past the Supreme Courtroom of N Carolina'due south predecessor. ^[9] The North Carolina courtroom and its counterparts in other states treated state constitutions equally statements of governing law to be interpreted and practical by judges.

These courts reasoned that because their country constitution was the fundamental police of the state, they must apply the state constitution rather than an act of the legislature that was inconsistent with the state constitution.^[ten] These state court cases involving judicial review were reported in the printing and produced public discussion and comment.^[xi] Notable state cases involving judicial review include Commonwealth five. Caton, (Virginia, 1782),^[12] ^[xiii] Rutgers v. Waddington (New York, 1784), Trevett v. Weeden (Rhode Isle, 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 become lawbreakers.^[14]

At least seven of the delegates to the Ramble Convention, including Alexander Hamilton, John Blair Jr. George Wythe, and Edmund Randolph, had personal experience with judicial review considering 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.^[xvi] 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's Case was influential in the development of judicial review in the Us.^[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 deemed an implied ability, derived from Article Three and Article VI.^[18]

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

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

The Supremacy Clause of Commodity VI states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be fabricated, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary nevertheless. ... [A]ll executive and judicial Officers, both of the United States and of the several States, shall exist bound by Oath or Affidavit, to support this Constitution.

The power of judicial review has been unsaid from these provisions based on the post-obit 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 police 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 "fabricated in pursuance" of the Constitution. Land constitutions and statutes are valid only if they are consistent with the Constitution. Any police force contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." As office 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 jump to follow the Constitution. If in that location is a conflict, the federal courts have a duty to follow the Constitution and to care for the conflicting statute every bit unenforceable. The Supreme Courtroom has final appellate jurisdiction in all cases arising under the Constitution, and then the Supreme Courtroom has the ultimate dominance to decide whether statutes are consequent 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 Program. The Virginia Program included a "council of revision" that would have examined proposed new federal laws and would have accepted or rejected them, similar to today'southward 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 quango 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 way to negate laws by participating in the quango of revision. For example, Elbridge Gerry said federal judges "would take a sufficient cheque 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 really fix bated laws, equally being confronting the constitution. This was done too with general approbation."^[20] Luther Martin said: "[A]s to the constitutionality of laws, that indicate volition come earlier 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 volition have a double negative."^[21] These and other like comments by the delegates indicated that the federal courts would have the power of judicial review.

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

At several other points in the debates at the Constitutional Convention, delegates made comments indicating their conventionalities that under the Constitution, federal judges would take the power of judicial review. For example, James Madison said: "A law violating a constitution established past the people themselves, would exist considered past the Judges equally null & void."^[24] George Mason said that federal judges "could declare an unconstitutional law void."^[25] However, Bricklayer added that the ability of judicial review is not a general power to strike down all laws, but merely ones that are unconstitutional:^[25]

But with regard to every police however unjust, oppressive or pernicious, which did not come plain under this description, they would be under the necessity as Judges to give it a free course.

In all, 15 delegates from nine states made comments regarding the ability of the federal courts to review the constitutionality of laws. All but two 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 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 constitute that xx-five or 20-six of the Convention delegates made comments indicating support for judicial review, while 3 to six delegates opposed judicial review.^[27] One review of the debates and voting records of the convention counted as many equally forty delegates who supported judicial review, with four or five opposed.^[28]

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

Land ratification debates [edit]

Judicial review was discussed in at least vii of the thirteen state ratifying conventions, and was mentioned by virtually two dozen delegates. In each of these conventions, delegates asserted that the proposed Constitution would permit the courts to exercise judicial review. In that location is no record of whatsoever delegate to a land ratifying convention who indicated that the federal courts would non have the ability of judicial review.^[31]

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 musical instrument in Congress, the judges, as a result of their independence, and the detail powers of authorities being defined, volition declare such police force to be cypher and void. For the power of the Constitution predominates. Annihilation, therefore, that shall be enacted by Congress contrary thereto will not have the force of police force."^[32]

In the Connecticut ratifying convention, Oliver Ellsworth likewise described judicial review equally a feature of the Constitution: "This Constitution defines the extent of the powers of the full general regime. If the full general legislature should at any time overleap their limits, the judicial department is a constitutional cheque. If the Us go beyond their powers, if they make a police which the Constitution does not qualify, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made contained, will 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 13 states asserted that under the Constitution, the federal courts would have the ability of judicial review. At that place is no tape of whatsoever opponent to the Constitution who claimed that the Constitution did not involve a power of judicial review.^[34]

Subsequently reviewing the statements made by the founders, one scholar concluded: "The show from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public significant of the term 'judicial power' [in Article 3] 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 near extensive word of judicial review was in Federalist No. 78, written by 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 have the ability to declare laws unconstitutional. Hamilton asserted that this was appropriate because it would protect the people confronting corruption of power by Congress:

[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to go on the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded past the judges, every bit a primal police force. Information technology therefore belongs to them to ascertain its meaning, every bit well as the meaning of any item act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this decision past any means suppose a superiority of the judicial to the legislative ability. 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 exist governed by the latter rather than the sometime. They ought to regulate their decisions by the key laws, rather than past those which are non fundamental. ...

[A]ccordingly, whenever a item statute contravenes the Constitution, it will exist 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 express Constitution against legislative encroachments.^[36]

In Federalist No. 80, Hamilton rejected the idea that the power to decide the constitutionality of an deed of Congress should lie with each of the states: "The mere necessity of uniformity in the estimation of the national laws, decides the question. Thirteen contained courts of last jurisdiction over the aforementioned causes, arising upon the same laws, is a hydra in government, from which zilch but contradiction and defoliation tin can go along."^[37] Consistent with the need for uniformity in interpretation of the Constitution, Hamilton explained in Federalist No. 82 that the Supreme Court has authority to hear appeals from the country courts in cases relating to the Constitution.^[38]

The arguments confronting ratification by the Anti-Federalists agreed that the federal courts would have 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 will control the legislature, for the supreme court are authorised in the concluding resort, to make up one's mind what is the extent of the powers of the Congress. They are to requite the constitution an explanation, and at that place is no ability above them to ready aside their judgment. ... The supreme court and then accept a correct, independent of the legislature, to requite a structure to the constitution and every function of it, and in that location is no power provided in this system to correct their construction or exercise it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void.^[39]

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

Judiciary Act of 1789 [edit]

The first Congress passed the Judiciary Act of 1789, establishing the lower federal courts and specifying the details of federal courtroom jurisdiction. Department 25 of the Judiciary Human activity provided for the Supreme Court to hear appeals from land courts when the state court decided that a federal statute was invalid, or when the state court upheld a land statute confronting a claim that the state statute was repugnant to the Constitution. This provision gave the Supreme Court the power to review land 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 [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-ane state or federal cases during this time in which statutes were struck down equally unconstitutional, and seven boosted cases in which statutes were upheld just at least one guess concluded the statute was unconstitutional.^[40] The author of this assay, Professor William Treanor, concluded: "The sheer number of these decisions not only belies the notion that the institution of judicial review was created past Chief Justice Marshall in Marbury, it likewise reflects widespread credence and awarding of the doctrine."^[41]

Several other cases involving judicial review issues reached the Supreme Courtroom before the upshot was definitively decided in Marbury in 1803.

In Hayburn's Example, 2 U.S. (2 Dall.) 408 (1792), federal excursion courts held an deed of Congress unconstitutional for the offset fourth dimension. Three federal circuit courts constitute that Congress had violated the Constitution by passing an act requiring circuit courtroom judges to decide pension applications, bailiwick to the review of the Secretary of War. These excursion courts found that this was not a proper judicial role under Article III. These three decisions were appealed to the Supreme Court, just the appeals became moot when Congress repealed the statute while the appeals were pending.^[42]

In an unreported Supreme Courtroom decision in 1794, United States five. Yale Todd,^[43] the Supreme Court reversed a pension that was awarded under the same alimony deed that had been at issue in Hayburn's Case. The Court plainly decided that the human activity designating judges to decide pensions was not constitutional because this was not a proper judicial office. This patently was the starting time Supreme Court case to notice an act of Congress unconstitutional. Notwithstanding, there was not an official report of the case and information technology was not used every bit a precedent.

Hylton v. United states of america, iii U.S. (three Dall.) 171 (1796), was the first case decided by the Supreme Court that involved a claiming to the constitutionality of an human action of Congress. It was argued that a federal tax on carriages violated the constitutional provision regarding "direct" taxes. The Supreme Court upheld the taxation, finding it was constitutional. Although the Supreme Courtroom did not strike down the human activity 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.^[44] Because it found the statute valid, the Court did non accept to affirm that it had the power to declare a statute unconstitutional.^[45]

In Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), the Supreme Court for the commencement time struck down a state statute. The Court reviewed a Virginia statute regarding pre-Revolutionary war debts and plant that it was inconsistent with the peace treaty betwixt the U.s.a. and Bully Britain. Relying on the Supremacy Clause, the Courtroom found the Virginia statute invalid.

In Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Court found that it did non take jurisdiction to hear the case because of the jurisdiction limitations of the Eleventh Amendment. This belongings could be viewed as an implicit finding that the Judiciary Act of 1789, which would have allowed the Courtroom jurisdiction, was unconstitutional in part. However, the Courtroom did not provide whatsoever reasoning for its conclusion and did not say that it was finding the statute unconstitutional.^[46]

In Cooper 5. Telfair, 4 U.Southward. (4 Dall.) fourteen (1800), Justice Chase stated: "Information technology 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 deed of Congress to be unconstitutional, and therefore invalid, but there is no arbitrament of the Supreme Court itself upon the indicate."^[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 constitutional. In response, ten states passed their own resolutions disapproving the Kentucky and Virginia Resolutions.^[48] Vi of these states took the position that the ability to declare acts of Congress unconstitutional lies in the federal courts, not in the state legislatures. For example, Vermont's resolution stated: "Information technology belongs not to state legislatures to make up one's mind on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Matrimony."^[49]

Thus, five years earlier 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 five. Madison [edit]

Marbury was the starting time Supreme Court decision to strike down an deed of Congress as unconstitutional. Chief Justice John Marshall wrote the opinion for a unanimous Court.

The case arose when William Marbury filed a lawsuit seeking an lodge (a "writ of mandamus") requiring the Secretary of State, James Madison, to deliver to Marbury a committee appointing him as a justice of the peace. Marbury filed his example direct in the Supreme Court, invoking the Court's "original jurisdiction", rather than filing in a lower court.^[50]

The constitutional outcome involved the question of whether the Supreme Court had jurisdiction to hear the case.^[51] The Judiciary Act of 1789 gave the Supreme Courtroom original jurisdiction in cases involving writs of mandamus. And so, under the Judiciary Human action, the Supreme Courtroom would have 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 Human activity therefore attempted to give the Supreme Court jurisdiction that was non "warranted by the Constitution."^[53]

Marshall's opinion stated that in the Constitution, the people established a government of limited powers: "The powers of the Legislature are divers 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 constabulary 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."^[54]

Marshall then discussed the role of the courts, which is at the heart of the doctrine of judicial review. Information technology would exist an "applesauce", said Marshall, to crave the courts to employ a law that is void. Rather, information technology is the inherent duty of the courts to translate and employ the Constitution, and to determine whether there is a conflict between a statute and the Constitution:

Information technology is emphatically the province and duty of the Judicial Section to say what the police force is. Those who utilize the rule to particular cases must, of necessity, expound and interpret that dominion. If two 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 police and the Constitution use to a particular instance, then that the Court must either make up one's mind that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the constabulary, the Court must determine which of these conflicting 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 instance to which they both employ. ...^[55]

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 take the duty to refuse to enforce any laws that are contrary to the Constitution. Specifically, Article 3 provides that the federal judicial power "is extended to all cases arising under the Constitution." Commodity Vi requires judges to take an oath "to support this Constitution." Commodity Vi also states that only laws "made in pursuance of the Constitution" are the constabulary of the land. Marshall concluded: "Thus, the particular phraseology of the Constitution of the United states of america confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a police repugnant to the Constitution is void, and that courts, as well as other departments, are spring past that instrument."^[56]

Marbury long has been regarded equally 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 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 Not bad Primary Justice, John Marshall—not unmarried-handed, but first and foremost—was at that place to exercise it and did. If any social process can be said to have been 'done' at a given time, and by a given act, it is Marshall's achievement. The time was 1803; the deed was the decision in the case of Marbury v. 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 acknowledged past the Constitution's framers, was explained in the Federalist Papers and in the ratification debates, and was used past both country and federal courts for more than than 20 years before Marbury. Including the Supreme Court in Hylton v. Usa. One scholar concluded: "[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 role over regime actions.^[59] Later the Courtroom exercised its power of judicial review in Marbury, it avoided striking downwardly a federal statute during the next fifty years. The court would not do so again until Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).^[sixty]

However, the Supreme Court did practice 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 Courtroom struck downwards a state statute equally unconstitutional was Fletcher 5. Peck, ten U.Due south. (six Cranch) 87 (1810).^[61]

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

The Supreme Court rejected this argument. In Martin v. Hunter's Lessee, xiv U.S. (1 Wheat.) 304 (1816), the Court held that under Article 3, 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 some other decision to the same consequence in the context of a criminal case, Cohens five. Virginia, 19 U.S. (half dozen Wheat.) 264 (1821). It is now well established that the Supreme Court may review decisions of land courts that involve federal law.

The Supreme Court also has reviewed actions of the federal executive branch to decide whether those actions were authorized by acts of Congress or were across the dominance granted past Congress.^[62]

Judicial review is now well established as a cornerstone of constitutional constabulary. As of September 2017, the U.s.a. Supreme Court had held unconstitutional portions or the entirety of some 182 Acts of the U.S. Congress, the most recently in the Supreme Courtroom's June 2017 Matal 5. Tam and 2019 Iancu five. Brunetti decisions hitting downward 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 go an established office of constitutional law in the Usa, in that location are some who disagree with the doctrine.

One of the first 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 exercise not pretend to vindicate the law, which has been the subject of controversy: it is immaterial what law they have declared void; it is their usurpation of the authority to do information technology, that I mutter of, as I do almost positively deny that they take whatsoever such power; nor can they find whatsoever thing in the Constitution, either directly or impliedly, that will support them, or requite them whatsoever color of right to exercise that potency.^[66]

At the Ramble Convention, neither proponents nor opponents of judicial review disputed that whatsoever regime based on a written constitution requires some mechanism to forestall laws that violate that constitution from being made and enforced. Otherwise, the certificate 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). 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 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 exist 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, it may be answered, that this cannot be the natural presumption, where it is not to be nerveless from any particular provisions in the Constitution. It is non otherwise to exist supposed, that the Constitution could intend to enable the representatives of the people to substitute their volition to that of their constituents. Information technology is far more rational to suppose, that the courts were designed to be an intermediate torso between the people and the legislature, in order, among other things, to keep the latter inside the limits assigned to their authority.^[67]

Since the adoption of the Constitution, some take argued that the power of judicial review gives the courts the power to impose their ain views of the law, without an adequate check from whatever other branch of regime. Robert Yates, a delegate to the Ramble Convention from New York, argued during the ratification procedure in the Anti-Federalist Papers that the courts would apply the power of judicial review loosely to impose their views about the "spirit" of the Constitution:

[I]n their decisions they will not confine themselves to whatsoever stock-still or established rules, but will determine, co-ordinate to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will accept the forcefulness of constabulary; because there is no ability provided in the constitution, that tin correct their errors, or controul their adjudications. From this court there is no appeal.^[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 ane which would place us nether the despotism of an oligarchy. Our judges are as honest as other men, and non more then. They take, with others, the same passions for party, for ability, and the privilege of their corps. ... Their power [is] the more unsafe equally they are in office for life, and non responsible, as the other functionaries are, to the elective command. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. Information technology has more wisely made all the departments co-equal and co-sovereign within themselves.^[69]

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

[T]he aboveboard citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are fabricated in ordinary litigation between parties in personal actions the people volition 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 whatsoever assault upon the courtroom or the judges. Information technology is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.^[70]

Lincoln was alluding here to the example of Dred Scott 5. Sandford, in which the Court had struck down a federal statute for the first time since Marbury 5. Madison.^[60]

It has been argued that the judiciary is non the only co-operative of government that may interpret the meaning of the Constitution.^{[ who? ]} Article VI requires federal and state officeholders to exist bound "past Adjuration or Affirmation, to support this Constitution." It has been argued that such officials may follow their ain interpretations of the Constitution, at least until those interpretations have been tested in court.

Some have argued that judicial review exclusively past the federal courts is unconstitutional^[71] based on two arguments. Start, the ability of judicial review is not expressly delegated to the federal courts in the Constitution. The Tenth Subpoena reserves to united states (or to the people) those powers non expressly delegated to the federal government. The second statement is that usa alone have the power to ratify changes to the "supreme law" (the U.Southward. Constitution), and each state's understanding of the language of the amendment therefore becomes germane to its implementation and effect, making it necessary that the states play some part in interpreting its meaning. Nether 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, that is, validating ability.

Standard of review [edit]

In the The states, unconstitutionality is the only ground for a federal court to strike downwards a federal statute. Justice Washington, speaking for the Marshall Court, put information technology this way in an 1829 case:

We intend to decide no more than that the statute objected to in this case is not repugnant to the Constitution of the United States, and that unless it be and so, this Courtroom has no authority, nether the 25th department of the judiciary act, to re-examine and to contrary the judgement of the supreme court of Pennsylvania in the nowadays case.^[72]

If a country statute conflicts with a valid federal statute, and so courts may strike downwardly the land statute every bit an unstatutable^[73] violation of the Supremacy Clause. But a federal court may not strike downward 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 downward a statute. Alexander Hamilton explained in Federalist 78 that the standard of review should exist "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 government [will] be nether obligation to observe the laws made past the full general legislature not repugnant to the constitution."^[74]

These principles—that federal statutes tin only exist struck downward for unconstitutionality and that the unconstitutionality must be clear—were very common views at the time of the framing of the Constitution. For case, George Bricklayer explained during the constitutional convention that judges "could declare an unconstitutional law void. But with regard to every constabulary, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to requite it a gratis course."^[25]

For a number of years, the courts were relatively deferential to Congress. Justice Washington put it this way, in an 1827 example: "It is simply a decent respect to the wisdom, integrity, and patriotism of the legislative body, past which whatever constabulary is passed, to assume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable dubiousness."^[75]

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 weakened somewhat during the twentieth century, as exemplified by the Supreme Court's famous footnote four in United States 5. 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 take not departed from the principle that courts may just strike down statutes for unconstitutionality.

Of course, the practical implication of this principle is that a court cannot strike downwards a statute, fifty-fifty 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 reaffirmed this bespeak in a concurring opinion: "[A]southward I recollect my esteemed sometime colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does non prohibit legislatures from enacting stupid laws.'"^[76]

In the federal system, courts may only decide actual cases or controversies; information technology is not possible to asking the federal courts to review a police without at least one political party having legal standing to engage in a lawsuit. This principle means that courts sometimes practice non exercise their power of review, fifty-fifty when a law is seemingly unconstitutional, for desire of jurisdiction. In some country courts, such as the Massachusetts Supreme Judicial Courtroom, 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.Due south. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the case before information technology could be decided on other grounds, an attitude and practice 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 serial of rules under which it has avoided passing upon a large office of all the constitutional questions pressed upon it for conclusion. They are:

The Court will non pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions is legitimate only in the final resort, and as a necessity in the determination of existent, earnest, and vital controversy between individuals. It never was the idea that, by ways of a friendly adapt, a party beaten in the legislature could transfer to the courts an enquiry as to the constitutionality of the legislative act.

The Court will not anticipate a question of constitutional law in accelerate of the necessity of deciding it. Information technology is not the habit of the courtroom to decide questions of a constitutional nature unless absolutely necessary to a conclusion of the case.

The Court will not codify a rule of constitutional law broader than required by the precise facts it applies to.

The Court will not laissez passer upon a constitutional question although properly presented past the record, if at that place is also present some other ground upon which the case may be tending of ... If a example tin be decided on either of two grounds, one involving a constitutional question, the other a question of statutory structure or general law, the Court will decide just the latter.

The Courtroom will not pass upon the validity of a statute upon complaint of ane who fails to show that he is injured past its functioning.

The Courtroom will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

When the validity of an human activity of the Congress is drawn in question, and even if a serious doubtfulness of constitutionality is raised, it is a cardinal principle that this Courtroom will starting time ascertain 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 ability to influence what cases come earlier the Courtroom. For example, the Constitution at Article III, Department 2, gives Congress power to brand exceptions to the Supreme Court'southward 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 every bit jurisdiction stripping.

Another way for Congress to limit judicial review was tried in January 1868, when a bill was proposed requiring a 2-thirds majority of the Court in lodge to deem any Human action of Congress unconstitutional.^[78] The nib was approved by the House, 116 to 39.^[79] That measure died in the Senate, partly considering the neb was unclear about how the bill's own constitutionality would be decided.^[80]

Many other bills accept been proposed in Congress that would crave a supermajority in order for the justices to do judicial review.^[81] During the early years of the United States, a 2-thirds bulk was necessary for the Supreme Courtroom to exercise judicial review; because the Court then consisted of half-dozen members, a simple majority and a two-thirds majority both required four votes.^[82] Currently, the constitutions of two states require a supermajority of supreme court justices in order to exercise judicial review: Nebraska (v out of 7 justices) and North Dakota (iv out of five justices).^[81]

Administrative review [edit]

The procedure for judicial review of federal administrative regulation in the United States is set up forth past the Administrative Procedure Act although the courts have ruled such as in Bivens 5. 6 Unknown Named Agents ^[83] that a person may bring a case on the grounds of an unsaid cause of action when no statutory process exists.

Notes [edit]

^ "The Establishment of Judicial Review". Findlaw.
^ Congress, Usa. "United States Statutes at Large, Volume 1" – via Wikisource.
^ Marbury v. Madison, 5 US (1 Cranch) 137 (1803).
^ "Marbury 5. Madison – John Marshall – 1803 – AMDOCS: Documents for the Report of American History".
^ Run into Congressional Research Services' The Constitution of the The states, Analysis And Interpretation, 2013 Supplement, pp. 49–50.
^ "Table of Laws Held Unconstitutional in Whole or in Part past the Supreme Courtroom". U.S. Congress. Retrieved February 22, 2021.
^ Prakash, Saikrishna B.; Yoo, John C. (2003). "The Origins of Judicial Review". The University of Chicago Law Review. 70 (iii): 887–982. doi:10.2307/1600662. ISSN 0041-9494. JSTOR 1600662.
^ Bayard 5. Singleton , i Northward.C. 5 (North.C. 1787).
^ Brown, Andrew. "Bayard five. Singleton: Due north Carolina as the Pioneer of Judicial Review". North Carolina Constitute of Ramble Constabulary. Archived from the original on 2019-08-16. Retrieved 2019-08-16 .
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, pp. 933–934.
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, p. 936.
^ The Judicial Branch of State Government: People, Process, and Politics
^ John Marshall: Definer of a Nation
^ The People Themselves - Popular Constitutionalism and Judicial Review, Larry Kramer
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary Review p. 939.
^ For instance, 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, every bit being against the constitution." Farrand, The Records of the Federal Convention of 1787, vol. 1, p. 97.
^ Corwin, Edward S. (1929). "The "College Police" Background of American Constitutional Police force". Harvard Law Review. Harvard Law Review Association. 42 (3). doi:ten.2307/1330694. ISSN 0017-811X. JSTOR 1330694.
^ While the Constitution does not explicitly authorize judicial review, it also 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 authority, without consent of the representatives of the people, is injurious to their rights, and ought not to exist exercised." Virginia Constitution of 1776 Archived 2008-06-04 at the Wayback Car via Avalon Project at Yale Law School.
^ See Marbury v. Madison, 5 U.S. at 175–78.
^ Run across Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 1. New Haven: Yale Academy Printing. p. 97.
^ Farrand, The Records of the Federal Convention of 1787, vol. 2, p. 76. Nathaniel Gorham likewise made comments along these lines. Run across Rakove, Jack Due north. (1997). "The Origins of Judicial Review: A Plea for New Contexts". Stanford Law Review. 49 (5): 1031–64. doi:10.2307/1229247. ISSN 0038-9765. JSTOR 1229247.
^ Delegates making these comments included Rufus Rex, Caleb Strong, Nathaniel Gorham, and John Rutledge. Encounter Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Law Review at 1058.
^ The council of revision proposed in the Virginia Plan ultimately morphed into the Presidential veto. In its final form, the executive lone would practise the veto, without participation by the federal judiciary.
^ Ibid., p. 93. Delegates approving of judicial review also included James Wilson and Gouverneur Morris, among others. Meet Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Police Review at 941–43.
^ ^a ^b ^c Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Haven: Yale University Press. p. 78.
^ Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Police force Review, p. 952. The 2 delegates who disapproved judicial review, John Dickinson and John Mercer, did not advise a provision prohibiting judicial review. During the land ratification conventions, they acknowledged that under the concluding Constitution, the courts would take the power of judicial review. Prakash and Yoo, "The Origins of Judicial Review", lxx U. of Chicago Law Review, p. 943.
^ Raoul Berger establish that twenty-six Convention delegates supported Constitution review, with half dozen opposed. Berger, Raoul (1969). Congress v. The Supreme Court . Harvard Academy Press. p. 104. Charles Beard counted twenty-five delegates in favor of judicial review and three against. Beard, Charles (1962) [1912]. The Supreme Court and the Constitution . Prentice Hall. p. 69.
^ Melvin, Frank, "The Judicial Bulwark of the Constitution", 8 American Political Science Review 167, 185–195 (1914).
^ Meet Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary Review at pp. 931–32.
^ James Madison at one bespeak said that the courts' power of judicial review should be express to cases of a judiciary nature: "He doubted whether it was not going too far to extend the jurisdiction of the Court mostly to cases arising under the Constitution and whether it ought non to be limited to cases of a judiciary nature. The right of expounding the Constitution in cases not of this nature ought non to be given to that department." Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Haven: Yale Academy Press. p. 430. Madison wanted to clarify that the courts would non have a free-floating ability to declare unconstitutional whatever law that was passed; rather, the courts would be able to rule on constitutionality of laws just when those laws were properly presented to them in the context of a courtroom case that came before them. Encounter Burr, Charles, "Unconstitutional Laws and the Federal Judicial Power", 60 U. Pennsylvania Police Review 624, 630 (1912). No change in the linguistic communication was fabricated in response to Madison'south comment.
^ See Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Police Review at p. 965.
^ Elliot, Jonathan (1863) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 2. Philadelphia: Lippincott. p. 489.
^ Elliot, Jonathan (1863) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. ii. Philadelphia: Lippincott. p. 196.
^ See Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review at pp. 973–75.
^ Barnett, Randy, "The Original Meaning of Judicial Ability", 12 Supreme Court Economic Review 115, 138 (2004).
^ Hamilton, Alexander. Federalist No. 78 (June 14, 1788). See likewise Federalist No. 81, which says: "[T]he Constitution ought to be the standard of construction for the laws, and ... wherever there is an evident opposition, the laws ought to give place to the Constitution." Federalist No. 81 (June 28, 1788)
^ Federalist No. 80 (June 21, 1788)
^ Federalist No. 82 (July two, 1788)
^ "The Problem of Judicial Review – Teaching American History". Archived from the original on 2011-06-thirty. Retrieved 2011-05-11 .
^ Treanor, William Michael (2005). "Judicial Review earlier "Marbury"". Stanford Police force Review. 58 (2): 455–562. ISSN 0038-9765. JSTOR 40040272.
^ Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review, p. 458.
^ V of the half-dozen Supreme Court justices at that fourth dimension had sabbatum as circuit judges in the iii circuit court cases that were appealed. All v of them had found the statute unconstitutional in their chapters as circuit judges.
^ There was no official report of the case. The case is described in a note at the end of the Supreme Courtroom'south decision in United States 5. Ferreira, 54 U.S. (13 How.) 40 (1851).
^ Professor Jack Rakove wrote: "Hylton v. United States was manifestly a case of judicial review of the constitutionality of legislation, in an surface area of governance and public policy far more than sensitive than that exposed past 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 Police Review at 1039–41.
^ Justice Hunt's stance stated: "[I]t is unnecessary, at this time, for me to determine, whether this courtroom, constitutionally possesses the power to declare an act of congress void, on the ground of its being made reverse to, and in violation of, the constitution."
^ See Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review, p. 547.
^ Chase'southward statement about decisions by judges in the circuits referred to Hayburn's Case.
^ 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 Land Conventions on the Adoption of the Federal Constitution. Vol. 4 (expanded 2d ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-9. . Iii states passed resolutions expressing disapproval but did not transmit formal responses to Kentucky and Virginia (Maryland, Pennsylvania, and New Bailiwick of jersey). Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244. . The other iv states took no activity.
^ Elliot, Jonathan (1907) [1836]. "Answers of the Several Land Legislatures: State of Vermont". Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. iv (expanded 2nd ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-9. . The other states taking the position that the constitutionality of federal laws is a question for the federal courts, not 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 not address this issue. Anderson, Frank Maloy (1899). "Gimmicky Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244.
^ For a more than detailed description of the case, run into Marbury five. Madison.
^ There were several non-constitutional issues, including whether Marbury was entitled to the commission and whether a writ of mandamus was the appropriate remedy. The Court'south opinion dealt with those issues first, finding that Marbury was entitled to the committee and that mandamus was a proper remedy. See Marbury 5. Madison.
^ Article 3 of the Constitution says: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall exist party, the Supreme Court shall take original jurisdiction. In all the other cases ... the Supreme Court shall take appellate jurisdiction."
^ Marbury, v U.South. at 175–176.
^ Marbury, v U.S., pp. 176–177.
^ Marbury, 5 U.S., pp. 177–178.
^ Marbury, 5 U.S., pp. 178–180.
^ Bickel, Alexander (1962). The To the lowest degree Dangerous Branch: The Supreme Court at the Bar of Politics . Indianapolis: Bobbs-Merrill. p. 1. ISBN9780300032994.
^ Treanor, "Judicial Review Earlier Marbury", 58 Stanford Law Review at 555. See also Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police Review at 1035–41.
^ Laura Langer, Judicial Review in State Supreme Courts: A Comparative Study (Albany: State University of New York Press, 2002), p. iv
^ ^a ^b Run into Menez, Joseph et al., Summaries of Leading Cases on the Constitution, page 125 (2004).
^ The Supreme Court after decided that a number of other cases finding state statutes unconstitutional. See, for example, Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819), McCulloch 5. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and Gibbons v. Ogden, 22 U.S. (nine Wheat.) 1 (1824).
^ Meet Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) (the "Flying Fish case").
^ The Supreme Court and the Constitution, Charles A. Bristles, pp. seventy-71
^ Judicial Review and Not-enforcement at the Founding, University of Pennsylvania, p. 496
^ University of Pennsylvania Police force Review and American Police force Annals
^ Corwin on the Constitution, Edward Samuel Corwin
^ Hamilton, Alexander. Federalist #78 (June 14, 1788).
^ Yates, Robert (writing equally "Brutus"). Anti-Federalist Papers(31 January 1788) Archived 17 August 2007 at the Wayback Car.
^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820).
^ Lincoln, Abraham. First Inaugural Address Archived 2007-08-17 at the Wayback Automobile (March iv, 1861).
^ See W.W. Crosskey, Politics and the Constitution in the History of the Us (Chicago: 1953), chs. 27–29, with which compare Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the debate on the subject area is Westin, "Introduction: Charles Bristles and American Debate over Judicial Review, 1790–1961", in: C. Bristles, The Supreme Court and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), 1–34, and bibliography at 133–149. See more at: http://constitution.findlaw.com/article3/annotation13.html#f576
^ Satterlee v. Matthewson, 27 U.S. 380 (1829).
^ "Unstatutable – Definition and More from the Free Merriam-Webster Dictionary". Merriam-Webster . Retrieved 8 May 2013.
^ "Article 3, Section 2, Clause 2: Brutus, no. 14".
^ Ogden v. Saunders, 25 U.S. 213 (1827).
^ New York State Bd. of Elections v. Lopez Torres, 552 U.South. ___, ___ (2008) (Stevens, J., concurring).
^ Ashwander v. Tennessee Valley Potency, 297 U.Southward. 288, 346–9 (1936) (Brandeis, concurring) (citing cases)
^ Schwartz, Bernard. A History of the Supreme Court, page 141 (Oxford University Press The states 1995).
^ McPherson, Edward. A political manual for 1868, pages 350–351 (Philp & Solomons 1868).
^ Goldstone, Lawrence. Inherently Unequal: The Expose of Equal Rights by the Supreme Court, 1865–1903, pages 55–56 (Bloomsbury Publishing USA 2011).
^ ^a ^b Caminker, Evan. "Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons From the Past Archived 2012-03-09 at the Wayback Car", 78 Indiana Law Journal 73 (2003).
^ Nackenoff, Carol. "Ramble Reforms to Enhance Democratic Participation and Deliberation: Not All Clearly Trigger the Article 5 Amendment Process Archived 2012-03-nineteen at the Wayback Machine", 67 Maryland Law Review 62, 65 (2007).
^ 403 U.S. 388 (1971).