CRS Annotated Constitution

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In short, the political question doctrine may not be moribund, but it does seem applicable to a very narrow class of cases.


Section 2. Judicial Power and Jurisdiction


The Establishment of Judicial Review

Judicial review is one of the distinctive features of United States constitutional law. It is no small wonder, then, to find that the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds is nowhere expressly conveyed. But it is hardly noteworthy that its legitimacy has been challenged from the first, and, while now accepted generally, it still has detractors and its supporters disagree about its doctrinal basis and its application.576 Although it was first asserted in Marbury v. Madison577 to strike down an act of Congress as inconsistent with the Constitution, judicial review did not spring full–blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters,578 and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions.579

Practically all of the framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the[p.699]existence of court review of the constitutionality of legislation,580 [p.700]and prior to Marbury the power seems very generally to have been assumed to exist by the Justices themselves.581 In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power,582 and in other debates questions of constitutionality and of judicial review were prominent.583 Nonetheless, although judicial review is consistent with several provisions of the Constitution and the argument for its existence may be derived from these provisions, they do not compel the conclusion that the Framers intended judicial review nor that it must exist. It was[p.701]Chief Justice Marshall’s achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional jurisprudence.


576 See the richly detailed summary and citations to authority in G. Gunther, Constitutional Law (Westbury, N.Y., 12th ed.: 1991), 1– 38; For expositions on the legitimacy of judicial review, see L. Hand, The Bill of Rights (Cambridge: 1958); H. Wechsler, Principles, Politics, and Fundamental Law—Selected Essays (Cambridge: 1961), 1–15; A. Bickel, The Least Dangerous Branch—The Supreme Court at the Bar of Politics (New York: 1962) 1–33; R. Berger, Congress v. The Supreme Court (Cambridge: 1969). For an extensive historical attack on judicial review, see 2 W. Crosskey, Politics and the Constitution in the History of the United States (Chicago: 1953), chs. 27–29, with which compare Hart, Book Review, 67 L. Rev.1456 (1954). A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate over Judicial Review, 1790–1961, in C. Beard, The Supreme Court and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), 1–34, and bibliography at 133–149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.
577 1 Cr. (5 U.S.) 137 (1803). A state act was held inconsistent with a treaty in Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796).
578 J. Goebel, op. cit., n. 2, 60–95.
579 Id., 96–142.
580 M. Farrand, op. cit., n. 1, 97–98 (Gerry), 109 (King), 2 id., 28 (Morris and perhaps Sherman). 73 (Wilson), 75 (Strong, but the remark is ambiguous). 76 (Martin), 78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92–93 (Madison), 248 (Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 id., 220 (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson. “Mr. Mercer . . . disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable.” 2 id., 298. “Mr. Dickinson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute.” Id., 299. Of course, the debates in the Convention were not available when the state ratifying conventions acted, so that the delegates could not have known these views about judicial review in order to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being uttered by Framers. 2 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution (Philadelphia: 1836). 131 (Samuel Adams, Massachusetts), 196–197 (Ellsworth, Connecticut). 348, 362 (Hamilton, New York): 445–446. 478 (Wilson, Pennsylvania), 3 id., 324–325, 539, 541 (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 id., 71 (Steele, North Carolina), 156–157 (Davie, North Carolina). In the Virginia convention, John Marshall observed if Congress “were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard . . . They would declare it void. . . . To what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.” 3 id., 553–554. Both Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. The Federalist (J. Cooke ed. 1961). See Nos. 39 and 44, at 256, 305 (Madison), Nos. 78 and 81, at 524–530, 541–552 (Hamilton). The persons supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with the exception of the Mercer–Dickinson comments, indicates at least acquiesence if not agreements by the other Framers.
To be sure, subsequent comments of some of the Framers indicate an understanding contrary to those cited in the convention. See, e.g., Charles Pinckney in 1799: “On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have many advocates in this country.” F. Wharton (ed.), State Trials of the United States During the Administrations of Washington and Adams (Philadelphia: 1849), 412.
Madison’s subsequent changes of position are striking. His remarks in the Philadelphia Convention, in the Virginia ratifying convention, and in The Federalist, cited above, all unequivocally favor the existence of judicial review. And in Congress arguing in support of the constitutional amendments providing a bill of rights, he observed: “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights,” 1 Annals of Congress 457 (1789); 5 Writings of James Madison, G. Hunt ed. (Philadelphia: 1904), 385. Yet, in a private letter in 1788, he wrote: “In the state constitutions and indeed in the federal one also, no provision is made for the case of a disagreement in expounding them; and as the courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law, to stamp it with the final character. This makes the Judiciary Department paramount in fact to the legislature, which was never intended and can never be proper.” Id., 294. At the height of the dispute over the Alien and Sedition Acts, Madison authored a resolution ultimately passed by the Virginia legislature which, though milder, and more restrained than one authored by Jefferson and passed by the Kentucky legislature, asserted the power of the States, though not of one State or of the state legislatures alone, to “interpose” themselves to halt the application of an unconstitutional law. 3 I. Brant, James Madison—Father of the Constitution, 1787–1800 (New York: 1950), 460–464. 467–471; Report on the Resolutions of 1798, 6 Writings of James Madison, op. cit., 341–406. Embarrassed by the claim of the nullificationists in later years that his resolution supported their position, Madison distinguished his and their positions and again asserted his belief in judicial review. 6 I. Brant, op. cit., 481–485, 488–489.
The various statements made and positions taken by the Framers have been culled and categorized and argued over many times. For a recent compilation reviewing the previous efforts, see R. Berger, op. cit., n. 576, chs. 3–4.
581 Thus, the Justices on circuit refused to adminster a pension act on grounds of its unconstitutionally, see Hayburn’s Case, 2 Dall. (2 U.S.) 409 (1792), and supra, pp. 621–623. Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter, supra, p.599 n.21, in Hylton v. United States, 3 Dall. (3 U.S.) 171 (1796), a feigned suit, the constitutionality of a federal law was argued before the Justices and upheld on the merits, in Ware v. Hylton. 3 Dall. (3 U.S.) 199 (1797), a state law was overturned, and dicta in several opinions asserted the principle. See Calder v. Bull, 3 Dall. (3 U.S.) 386, 399 (1798) (Justice Iredell), and several Justices on circuit, quoted in J. Goebel, op. cit., n. 2, 589–592.
582 In enacting the Judiciary Act of 1789, 1 Stat. 73 , Congress chose not to vest “federal question” jurisdiction in the federal courts but to leave to the state courts the enforcement of claims under the Constitution and federal laws. In Sec. 25, 1 Stat. 85 , Congress provided for review by the Supreme Court of final judgments in state courts (1) “. . . where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity;” (2) “. . . where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity;” or (3) “. . . where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed” thereunder. The ruling below was to be “re–examined and reversed or affirmed in the Supreme Court. . . .”
583 See in particular the debate on the President’s removal powers, discussed supra. pp.522–531, with statements excerpted in R. Berger, op. cit., n. 576, 144–150. Debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. C. Warren, op. cit., n. 12, 107–124.
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