The Concept of Judicial Review Falls Under Which Article of the Us Constitution?

Power of a courtroom in the US to examine laws to determine if information technology contradicts current laws

In the United states, judicial review is the legal ability of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.Southward. Constitution does not explicitly define the ability of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.^[i]

Two landmark decisions by the U.Southward. Supreme Court served to confirm the inferred ramble authorization for judicial review in the United States. In 1796, Hylton five. United States was the first case decided by the Supreme Court involving a straight challenge to the constitutionality of an act of Congress, the Carriage Act of 1794 which imposed a "carriage tax".^[2] The Court performed judicial review of the plaintiff's claim that the carriage tax was unconstitutional. After review, the Supreme Court decided the Carriage Deed was constitutional. In 1803, Marbury v. Madison ^[iii] was the offset Supreme Court case where the Court asserted its authority to strike down a police force as unconstitutional. At the end of his stance in this decision,^[4] Chief Justice John Marshall maintained that the Supreme Court's responsibleness to overturn unconstitutional legislation was a necessary consequence of their sworn adjuration of office to uphold the Constitution as instructed in Article Vi of the Constitution.

As of 2014^[update], the United 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 function.^[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 state, volition run across the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, here is the limit of your authority; and, here, shall you go, but no further.

—George Wythe in Commonwealth v. Caton

But information technology is non with a view to infractions of the Constitution just, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no further than to the injury of particular citizens' individual rights, by unjust and fractional laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may take been passed, just it operates as a check 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, by the very motives of the injustice they meditate, to authorize their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of.

—Alexander Hamilton in Federalist No. 78

Before the Ramble Convention in 1787, the power of judicial review had been exercised in a number of states. In the years from 1776 to 1787, land courts in at least seven of the thirteen states had engaged in judicial review and had invalidated state statutes because they violated the country constitution or other higher law.^[7] The first American decision to recognize the principle of judicial review was Bayard v. Singleton,^[8] decided in 1787 by the Supreme Court of North Carolina'south predecessor. ^[nine] The North Carolina courtroom and its counterparts in other states treated state constitutions every bit statements of governing law to be interpreted and applied past judges.

These courts reasoned that because their country constitution was the fundamental law of the state, they must apply the state constitution rather than an human activity of the legislature that was inconsistent with the country constitution.^[x] These state court cases involving judicial review were reported in the press and produced public discussion and comment.^[11] Notable state cases involving judicial review include Commonwealth v. Caton, (Virginia, 1782),^[12] ^[13] Rutgers five. Waddington (New York, 1784), Trevett v. Weeden (Rhode Isle, 1786). Scholar Larry Kramer agreed with Justice Iredell that any approximate who enforces an unconstitutional law becomes complicit in the unconstitutionality and that they themselves go 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 because they had been lawyers or judges in these state court cases involving judicial review.^[15] Other delegates referred to some of these state court cases during the debates at the Constitutional Convention.^[sixteen] The concept of judicial review therefore was familiar to the framers and to the public before the Constitutional Convention.

Some historians argue that Dr. Bonham'south Example was influential in the development of judicial review in the United States.^[17]

Provisions of the Constitution [edit]

The text of the Constitution does non contain a specific reference to the power of judicial review. Rather, the power to declare laws unconstitutional has been deemed an unsaid ability, derived from Commodity III and Article VI.^[18]

The provisions relating to the federal judicial power in Article 3 state:

The judicial power of the United states of america, shall exist vested in ane Supreme Courtroom, and in such inferior courts as the Congress may from fourth dimension to time ordain and establish. ... The judicial power 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 made, nether their authority. ... In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall exist a party, the Supreme Court shall have original jurisdiction. In all the other cases earlier mentioned, the Supreme Courtroom shall have appellate jurisdiction, both every bit to constabulary and fact, with such exceptions, and nether such regulations every bit the Congress shall brand.

The Supremacy Clause of Article Half dozen 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 made, under the Dominance of the United States, shall exist the supreme Police force of the Land; and the Judges in every State shall be spring thereby, any Affair in the Constitution or Laws of any State to the Contrary yet. ... [A]ll executive and judicial Officers, both of the Us and of the several States, shall exist bound past Oath or Affidavit, to support this Constitution.

The ability of judicial review has been implied from these provisions based on the following reasoning. Information technology is the inherent duty of the courts to determine the applicable law in whatsoever given case. The Supremacy Clause says "[t]his Constitution" is the "supreme law of the country." The Constitution therefore is the fundamental law of the U.s.. Federal statutes are the police force of the country only when they are "fabricated in pursuance" of the Constitution. Country constitutions and statutes are valid only if they are consistent with the Constitution. Any law contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." As part of their inherent duty to determine the police force, the federal courts accept the duty to interpret and utilise the Constitution and to determine 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 take a duty to follow the Constitution and to treat the conflicting statute equally unenforceable. The Supreme Courtroom has final appellate jurisdiction in all cases arising nether the Constitution, and so the Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution.^[19]

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

Constitutional Convention [edit]

During the debates at the Constitutional Convention, the Founding Fathers made a number of references to the concept of judicial review. The greatest number of these references occurred during the discussion of the proposal known as the Virginia Plan. The Virginia Programme included a "quango of revision" that would have examined proposed new federal laws and would accept accepted or rejected them, similar to today's presidential veto. The "council of revision" would have included the President forth with some federal judges. Several delegates objected to the inclusion of federal judges on the council of revision. They argued the federal judiciary, through its power to declare laws unconstitutional, already had the opportunity to protect against legislative inroad, and the judiciary did not need a 2d way to negate laws by participating in the council of revision. For instance, Elbridge Gerry said federal judges "would have a sufficient check confronting encroachments on their own section past their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually set up bated laws, every bit being confronting the constitution. This was done too with general approbation."^[20] Luther Martin said: "[A]due south to the constitutionality of laws, that point volition come before the judges in their official grapheme. In this character they have a negative on the laws. Join them with the executive in the revision, and they will take a double negative."^[21] These and other similar comments past the delegates indicated that the federal courts would have the ability of judicial review.

Other delegates argued that if federal judges were involved in the police force-making process through participation on the quango of revision, their objectivity as judges in later deciding on the constitutionality of those laws could exist 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 fabricated comments indicating their belief that under the Constitution, federal judges would have the power of judicial review. For case, James Madison said: "A police violating a constitution established past the people themselves, would exist considered by the Judges as null & void."^[24] George Stonemason said that federal judges "could declare an unconstitutional constabulary void."^[25] Yet, Mason added that the ability of judicial review is not a general power to strike down all laws, but only ones that are unconstitutional:^[25]

But with regard to every law yet unjust, oppressive or pernicious, which did non come up plainly nether this description, they would be under the necessity as Judges to give it a free course.

In all, fifteen delegates from 9 states made comments regarding the ability 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.^[26] Some delegates to the Constitutional Convention did non speak about judicial review during the Convention, merely did speak virtually it before or after the Convention. Including these boosted comments past Convention delegates, scholars have plant that twenty-v or xx-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 as 40 delegates who supported judicial review, with iv or v opposed.^[28]

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

Land ratification debates [edit]

Judicial review was discussed in at to the lowest degree seven of the xiii 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 country ratifying convention who indicated that the federal courts would not have the power of judicial review.^[31]

For example, James Wilson asserted in the Pennsylvania ratifying convention that federal judges would exercise judicial review: "If a constabulary should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a outcome of their independence, and the item powers of government being defined, will declare such police force to exist nothing and void. For the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto volition not have the force of law."^[32]

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 whatsoever time overleap their limits, the judicial department is a ramble check. If the United States become across their powers, if they brand 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 information technology to exist 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 to the lowest degree twelve of the thirteen states asserted that nether 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.^[34]

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

The Federalist Papers [edit]

The Federalist Papers, which were published in 1787–1788 to promote ratification of the Constitution, fabricated several references to the power of judicial review. The almost all-encompassing discussion 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 power to declare laws unconstitutional. Hamilton asserted that this was appropriate because it would protect the people confronting abuse of ability by Congress:

[T]he courts were designed to be an intermediate trunk between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their dominance. The estimation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. Information technology therefore belongs to them to ascertain its significant, equally well equally the meaning of any detail act proceeding from the legislative torso. If there should happen to exist 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 determination by any ways suppose a superiority of the judicial to the legislative power. Information technology merely supposes that the power of the people is superior to both; and that where the volition of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than past those which are not key. ...

[A]ccordingly, whenever a particular statute contravenes the Constitution, it volition exist the duty of the Judicial tribunals to adhere to the latter and disregard the former. ...

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

In Federalist No. 80, Hamilton rejected the idea that the ability 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 regime, from which zero 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 state courts in cases relating to the Constitution.^[38]

The arguments confronting ratification by the Anti-Federalists agreed that the federal courts would have the power of judicial review, though the Anti-Federalists viewed this negatively. Robert Yates, writing nether 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 give the constitution an explanation, and at that place is no power above them to set up bated their judgment. ... The supreme court then have a correct, independent of the legislature, to give a construction to the constitution and every part of information technology, and at that place is no ability provided in this system to correct their construction or do it away. If, therefore, the legislature pass whatsoever laws, inconsistent with the sense the judges put upon the constitution, they will declare it void.^[39]

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

Judiciary Human activity of 1789 [edit]

The outset 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 state courts when the land court decided that a federal statute was invalid, or when the country court upheld a state statute against a merits that the country statute was repugnant to the Constitution. This provision gave the Supreme Court the ability to review state courtroom decisions involving the constitutionality of both federal statutes and land statutes. The Judiciary Human activity thereby incorporated the concept of judicial review.

Court decisions from 1788 to 1803 [edit]

Between the ratification of the Constitution in 1788 and the determination in Marbury five. Madison in 1803, judicial review was employed in both the federal and state courts. A detailed analysis has identified xxx-one state or federal cases during this time in which statutes were struck down as unconstitutional, and vii additional cases in which statutes were upheld but at least one gauge concluded the statute was unconstitutional.^[xl] The writer 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 Main Justice Marshall in Marbury, it also reflects widespread acceptance and application of the doctrine."^[41]

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

In Hayburn'due south Case, 2 U.S. (2 Dall.) 408 (1792), federal excursion courts held an act of Congress unconstitutional for the beginning time. Iii federal circuit courts institute that Congress had violated the Constitution by passing an act requiring circuit court judges to determine alimony applications, subject to the review of the Secretary of War. These excursion courts found that this was not a proper judicial function under Article III. These iii decisions were appealed to the Supreme Courtroom, but the appeals became moot when Congress repealed the statute while the appeals were pending.^[42]

In an unreported Supreme Courtroom decision in 1794, Us v. Yale Todd,^[43] the Supreme Court reversed a pension that was awarded nether the same pension act that had been at issue in Hayburn'southward Example. The Court obviously decided that the human action designating judges to decide pensions was not ramble considering this was non a proper judicial function. This apparently was the kickoff Supreme Court case to find an act of Congress unconstitutional. Still, there was non an official written report of the instance and it was non used every bit a precedent.

Hylton v. United States, 3 U.South. (3 Dall.) 171 (1796), was the first case decided by the Supreme Court that involved a challenge to the constitutionality of an deed of Congress. Information technology was argued that a federal taxation on carriages violated the constitutional provision regarding "direct" taxes. The Supreme Courtroom upheld the tax, finding information technology was ramble. Although the Supreme Courtroom did not strike down the act in question, the Court engaged in the procedure of judicial review by considering the constitutionality of the revenue enhancement. The example was widely publicized at the time, and observers understood that the Court was testing the constitutionality of an deed of Congress.^[44] Because information technology found the statute valid, the Court did not have to assert that it had the power to declare a statute unconstitutional.^[45]

In Ware v. Hylton, three U.S. (three Dall.) 199 (1796), the Supreme Courtroom for the first fourth dimension struck downwardly a country statute. The Court reviewed a Virginia statute regarding pre-Revolutionary war debts and found that it was inconsistent with the peace treaty between the United States and Keen Britain. Relying on the Supremacy Clause, the Court found the Virginia statute invalid.

In Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Courtroom found that it did not take jurisdiction to hear the instance because of the jurisdiction limitations of the Eleventh Subpoena. This property could exist viewed equally an implicit finding that the Judiciary Human action of 1789, which would have immune the Courtroom jurisdiction, was unconstitutional in office. Even so, the Courtroom did non provide any reasoning for its determination and did not say that it was finding the statute unconstitutional.^[46]

In Cooper v. Telfair, 4 U.S. (4 Dall.) xiv (1800), Justice Hunt 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 Courtroom tin can declare an act of Congress to exist unconstitutional, and therefore invalid, but there is no adjudication of the Supreme Court itself upon the betoken."^[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 ability to make up one's mind whether acts of Congress are constitutional. In response, ten states passed their own resolutions disapproving the Kentucky and Virginia Resolutions.^[48] Six of these states took the position that the power to declare acts of Congress unconstitutional lies in the federal courts, non in the state legislatures. For example, Vermont's resolution stated: "It belongs not to land legislatures to decide on the constitutionality of laws fabricated past the general government; this power beingness exclusively vested in the judiciary courts of the Marriage."^[49]

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

Marbury v. Madison [edit]

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

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

The constitutional issue involved the question of whether the Supreme Courtroom had jurisdiction to hear the instance.^[51] The Judiciary Human action of 1789 gave the Supreme Court original jurisdiction in cases involving writs of mandamus. So, under the Judiciary Act, the Supreme Court would accept had jurisdiction to hear Marbury's case. Withal, the Constitution describes the cases in which the Supreme Court has original jurisdiction, and does not include mandamus cases.^[52] The Judiciary Act therefore attempted to give the Supreme Courtroom 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 defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written." The limits established in the Constitution would exist meaningless "if these limits may at any fourth dimension be passed by those intended to be restrained." Marshall observed that the Constitution is "the primal and paramount law of the nation", and that information technology cannot be altered past 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 middle of the doctrine of judicial review. It would be an "absurdity", said Marshall, to require the courts to apply a police force that is void. Rather, it is the inherent duty of the courts to interpret and utilise 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 Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. 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 law and the Constitution apply to a item case, and so that the Courtroom must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these alien rules governs the case. This is of the very essence of judicial duty.

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

Marshall stated that the courts are authorized by the provisions of the Constitution itself to "wait 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 requires judges to take an oath "to support this Constitution." Commodity VI too states that only laws "made in pursuance of the Constitution" are the law of the state. Marshall concluded: "Thus, the particular phraseology of the Constitution of the U.s.a. confirms and strengthens the principle, supposed to exist essential to all written Constitutions, that a police force repugnant to the Constitution is void, and that courts, as well as other departments, are spring past that musical instrument."^[56]

Marbury long has been regarded as the seminal case with respect to the doctrine of judicial review. Some scholars take suggested that Marshall's opinion in Marbury essentially created judicial review. In his book The Least Unsafe Branch, Professor Alexander Bickel wrote:

[T]he institution of the judiciary needed to be summoned up out of the constitutional vapors, shaped, and maintained. And the Corking Chief Justice, John Marshall—not single-handed, but first and foremost—was at that place to do it and did. If any social process can be said to accept been 'done' at a given time, and by a given human activity, it is Marshall's accomplishment. The time was 1803; the act was the determination in the case of Marbury v. Madison.^[57]

Other scholars view this as an overstatement, and fence 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 by both state and federal courts for more than twenty years before Marbury. Including the Supreme Court in Hylton five. United States. One scholar concluded: "[B]efore Marbury, judicial review had gained wide support."^[58]

Judicial review subsequently Marbury [edit]

Marbury was the betoken at which the Supreme Courtroom adopted a monitoring role over government actions.^[59] Later the Court exercised its power of judicial review in Marbury, information technology avoided striking down a federal statute during the next l years. The courtroom would non exercise so again until Dred Scott 5. Sandford, 60 U.S. (19 How.) 393 (1857).^[60]

Yet, the Supreme Courtroom did exercise judicial review in other contexts. In detail, the Court struck downwardly a number of country statutes that were opposite to the Constitution. The outset case in which the Supreme Court struck downward a state statute every bit unconstitutional was Fletcher 5. Peck, 10 U.Due south. (half-dozen Cranch) 87 (1810).^[61]

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

The Supreme Court rejected this argument. In Martin five. Hunter's Lessee, 14 U.Southward. (one Wheat.) 304 (1816), the Court held that nether Article III, the federal courts have jurisdiction to hear all cases arising under the Constitution and laws of the U.s., and that the Supreme Court has appellate jurisdiction in all such cases, whether those cases are filed in land or federal courts. The Courtroom issued some other conclusion to the same effect in the context of a criminal case, Cohens v. Virginia, nineteen U.S. (six Wheat.) 264 (1821). It is now well established that the Supreme Courtroom may review decisions of state courts that involve federal police.

The Supreme Court likewise has reviewed actions of the federal executive branch to determine whether those actions were authorized by acts of Congress or were beyond the potency granted by Congress.^[62]

Judicial review is now well established every bit a cornerstone of constitutional law. Equally of September 2017, the Us Supreme Court had held unconstitutional portions or the entirety of some 182 Acts of the U.South. Congress, the about recently in the Supreme Court's June 2017 Matal 5. Tam and 2019 Iancu v. Brunetti decisions hitting down a portion of July 1946'south Lanham Act equally they infringe on Liberty of Spoken language.

Criticism of judicial review [edit]

Although judicial review has now become an established part of constitutional law in the United states of america, 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 Courtroom Justice James Iredell, Spaight wrote of his disapproval of the doctrine:^[63] ^[64] ^[65]

I do not pretend to vindicate the law, which has been the bailiwick of controversy: it is immaterial what constabulary they have declared void; it is their usurpation of the potency to do it, that I complain of, as I do virtually positively deny that they have any such power; nor can they notice whatever thing in the Constitution, either straight or impliedly, that will support them, or give them any color of right to exercise that authority.^[66]

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

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

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

[I]north their decisions they volition not confine themselves to any fixed or established rules, only will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme courtroom, whatever they may exist, will take the strength of law; because in that location is no power provided in the constitution, that can 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 dangerous doctrine indeed, and 1 which would identify u.s.a. nether the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for political party, for power, and the privilege of their corps. ... Their ability [is] the more dangerous as they are in function for life, and not responsible, equally the other functionaries are, to the elective control. 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. It has more wisely fabricated all the departments co-equal and co-sovereign within themselves.^[69]

In 1861, Abraham Lincoln touched upon the same subject, during his offset inaugural address:

[T]he candid 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 made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is in that location in this view any assault upon the courtroom or the judges. Information technology is a duty from which they may non compress to determine cases properly brought before them, and it is no mistake of theirs if others seek to plough their decisions to political purposes.^[lxx]

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

Information technology has been argued that the judiciary is not the only branch of regime that may translate the meaning of the Constitution.^{[ who? ]} Article VI requires federal and land officeholders to be spring "past Oath or Affirmation, to support this Constitution." Information technology has been argued that such officials may follow their own interpretations of the Constitution, at least until those interpretations have been tested in courtroom.

Some have argued that judicial review exclusively by the federal courts is unconstitutional^[71] based on 2 arguments. Offset, the power of judicial review is not expressly delegated to the federal courts in the Constitution. The Tenth Amendment reserves to usa (or to the people) those powers not expressly delegated to the federal government. The second argument is that us alone take the power to ratify changes to the "supreme law" (the U.S. Constitution), and each country'south understanding of the linguistic communication of the amendment therefore becomes germane to its implementation and effect, making it necessary that united states of america play some function in interpreting its significant. Nether this theory, allowing only federal courts to definitively carry judicial review of federal police allows the national government to interpret its ain restrictions as it sees fit, with no meaningful input from the ratifying, that is, validating power.

Standard of review [edit]

In the United states, unconstitutionality is the simply ground for a federal courtroom to strike downward a federal statute. Justice Washington, speaking for the Marshall Court, put it this way in an 1829 case:

We intend to make up one's mind no more that the statute objected to in this case is not repugnant to the Constitution of the United states of america, and that unless it exist so, this Courtroom has no authority, under the 25th section of the judiciary act, to re-examine and to reverse the judgement of the supreme court of Pennsylvania in the present case.^[72]

If a state statute conflicts with a valid federal statute, and then courts may strike downwardly the land statute equally an unstatutable^[73] violation of the Supremacy Clause. But a federal court may not strike downward a statute absent a violation of federal police or of the federal Constitution.

Moreover, a suspicion or possibility of unconstitutionality is not plenty for American courts to strike down 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 down federal statutes absent a conflict with the Constitution. For instance, Robert Yates, writing under the pseudonym "Brutus", asserted that "the courts of the full general government [volition] exist under obligation to observe the laws made by the general legislature not repugnant to the constitution."^[74]

These principles—that federal statutes tin can only be struck down for unconstitutionality and that the unconstitutionality must be clear—were very common views at the fourth dimension of the framing of the Constitution. For case, George Stonemason explained during the ramble convention that judges "could declare an unconstitutional police void. But with regard to every law, however unjust, oppressive or pernicious, which did not come up apparently under this description, they would be nether the necessity equally Judges to give it a free course."^[25]

For a number of years, the courts were relatively deferential to Congress. Justice Washington put it this way, in an 1827 instance: "It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which whatsoever law is passed, to assume in favor of its validity, until its violation of the Constitution is proved across a reasonable doubt."^[75]

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

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

In the federal system, courts may but make up one's mind actual cases or controversies; it is not possible to asking 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 non exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state courts, such equally the Massachusetts Supreme Judicial Court, legislation may exist referred in certain circumstances by the legislature or past the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).

The U.Due south. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the case before it 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 ain governance in the cases inside its jurisdiction, a series of rules under which information technology has avoided passing upon a big office of all the constitutional questions pressed upon it for conclusion. They are:

The Courtroom will not pass upon the constitutionality of legislation in a friendly, not-adversary, proceeding, declining because to decide such questions is legitimate just in the final resort, and equally a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a political party browbeaten in the legislature could transfer to the courts an inquiry every bit to the constitutionality of the legislative human action.

The Court volition not conceptualize a question of constitutional constabulary in advance of the necessity of deciding it. It is not the addiction of the courtroom to make up one's mind questions of a ramble nature unless admittedly necessary to a decision of the example.

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

The Court will not pass upon a constitutional question although properly presented by the record, if at that place is also present another ground upon which the instance may be disposed of ... If a case tin can be decided on either of ii grounds, 1 involving a ramble question, the other a question of statutory construction or general law, the Courtroom will decide but the latter.

The Courtroom volition not pass upon the validity of a statute upon complaint of i who fails to show that he is injured by its operation.

The Court volition 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 act of the Congress is fatigued in question, and even if a serious incertitude of constitutionality is raised, information technology is a central principle that this Court will commencement ascertain whether a construction of the statute is fairly possible by which the question may exist avoided.

Laws limiting judicial review [edit]

Although the Supreme Court continues to review the constitutionality of statutes, Congress and u.s. retain some power to influence what cases come up before the Court. For example, the Constitution at Article III, Department 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 divers by Congress, and thus Congress may have power to make some legislative or executive actions unreviewable. This is known as jurisdiction stripping.

Some other way for Congress to limit judicial review was tried in Jan 1868, when a bill was proposed requiring a two-thirds majority of the Court in social club to deem whatever Human activity of Congress unconstitutional.^[78] The bill was approved by the House, 116 to 39.^[79] That mensurate died in the Senate, partly because the bill was unclear nearly how the bill's ain constitutionality would be decided.^[fourscore]

Many other bills accept been proposed in Congress that would require a supermajority in order for the justices to exercise judicial review.^[81] During the early years of the United states of america, a two-thirds majority was necessary for the Supreme Court to practice judicial review; because the Court then consisted of vi members, a uncomplicated majority and a two-thirds majority both required four votes.^[82] Currently, the constitutions of 2 states require a supermajority of supreme courtroom justices in order to exercise judicial review: Nebraska (five out of seven justices) and Due north Dakota (four out of v justices).^[81]

Administrative review [edit]

The procedure for judicial review of federal administrative regulation in the U.s. is set forth by the Administrative Procedure Act although the courts have ruled such every bit in Bivens 5. Half dozen Unknown Named Agents ^[83] that a person may bring a case on the grounds of an unsaid crusade of action when no statutory procedure exists.

Notes [edit]

^ "The Establishment of Judicial Review". Findlaw.
^ Congress, United States. "U.s.a. Statutes at Large, Volume 1" – via Wikisource.
^ Marbury v. Madison, v US (one Cranch) 137 (1803).
^ "Marbury 5. Madison – John Marshall – 1803 – AMDOCS: Documents for the Study of American History".
^ Run across Congressional Research Services' The Constitution of the U.s., Analysis And Interpretation, 2013 Supplement, pp. 49–50.
^ "Tabular array of Laws Held Unconstitutional in Whole or in Function by the Supreme Court". U.S. Congress. Retrieved February 22, 2021.
^ Prakash, Saikrishna B.; Yoo, John C. (2003). "The Origins of Judicial Review". The Academy of Chicago Law Review. seventy (iii): 887–982. doi:10.2307/1600662. ISSN 0041-9494. JSTOR 1600662.
^ Bayard five. Singleton , i Due north.C. 5 (Due north.C. 1787).
^ Chocolate-brown, Andrew. "Bayard 5. Singleton: Due north Carolina equally the Pioneer of Judicial Review". Northward Carolina Constitute of Constitutional 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", seventy U. of Chicago Law Review, p. 936.
^ The Judicial Co-operative of State Regime: People, Procedure, and Politics
^ John Marshall: Definer of a Nation
^ The People Themselves - Pop Constitutionalism and Judicial Review, Larry Kramer
^ Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Constabulary Review p. 939.
^ For example, James Madison referred to "the judges who refused to execute an unconstitutional law" in a Rhode Island instance. Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Haven: Yale University Press. p. 28. Elbridge Gerry noted that "in some states, the judges had actually set aside laws, equally being against the constitution." Farrand, The Records of the Federal Convention of 1787, vol. 1, p. 97.
^ Corwin, Edward Due south. (1929). "The "College Law" Background of American Constitutional Police". Harvard Law Review. Harvard Law Review Association. 42 (iii). doi:ten.2307/1330694. ISSN 0017-811X. JSTOR 1330694.
^ While the Constitution does non explicitly qualify 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 be exercised." Virginia Constitution of 1776 Archived 2008-06-04 at the Wayback Automobile via Avalon Project at Yale Law School.
^ Run into Marbury v. Madison, 5 U.South. at 175–78.
^ Run into Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 1. New Haven: Yale University Press. p. 97.
^ Farrand, The Records of the Federal Convention of 1787, vol. 2, p. 76. Nathaniel Gorham also made comments along these lines. Meet Rakove, Jack Northward. (1997). "The Origins of Judicial Review: A Plea for New Contexts". Stanford Law Review. 49 (5): 1031–64. doi:x.2307/1229247. ISSN 0038-9765. JSTOR 1229247.
^ Delegates making these comments included Rufus King, Caleb Strong, Nathaniel Gorham, and John Rutledge. See Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police Review at 1058.
^ The council of revision proposed in the Virginia Programme ultimately morphed into the Presidential veto. In its final form, the executive lonely would exercise 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 Law Review at 941–43.
^ ^a ^b ^c Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Haven: Yale Academy Press. p. 78.
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, p. 952. The 2 delegates who disapproved judicial review, John Dickinson and John Mercer, did non propose a provision prohibiting judicial review. During the country ratification conventions, they acknowledged that under the final Constitution, the courts would have the power of judicial review. Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, p. 943.
^ Raoul Berger found that xx-six Convention delegates supported Constitution review, with six opposed. Berger, Raoul (1969). Congress v. The Supreme Court . Harvard Academy Press. p. 104. Charles Bristles counted twenty-five delegates in favor of judicial review and three against. Beard, Charles (1962) [1912]. The Supreme Courtroom and the Constitution . Prentice Hall. p. 69.
^ Melvin, Frank, "The Judicial Bulwark of the Constitution", eight American Political Science Review 167, 185–195 (1914).
^ Encounter Prakash and Yoo, "The Origins of Judicial Review", lxx U. of Chicago Law Review at pp. 931–32.
^ James Madison at one point said that the courts' power of judicial review should be limited to cases of a judiciary nature: "He doubted whether information technology was non going likewise far to extend the jurisdiction of the Court generally 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 non 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 Oasis: Yale University Printing. p. 430. Madison wanted to analyze that the courts would not have a costless-floating ability to declare unconstitutional any 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 court case that came before them. Meet Burr, Charles, "Unconstitutional Laws and the Federal Judicial Power", 60 U. Pennsylvania Law Review 624, 630 (1912). No alter in the language was made in response to Madison's comment.
^ See Prakash and Yoo, "The Origins of Judicial Review", lxx U. of Chicago Police force Review at p. 965.
^ Elliot, Jonathan (1863) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. two. Philadelphia: Lippincott. p. 489.
^ Elliot, Jonathan (1863) [1836]. Debates in the Several Land Conventions on the Adoption of the Federal Constitution. Vol. 2. Philadelphia: Lippincott. p. 196.
^ Come across Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Law Review at pp. 973–75.
^ Barnett, Randy, "The Original Pregnant of Judicial Power", 12 Supreme Courtroom Economical Review 115, 138 (2004).
^ Hamilton, Alexander. Federalist No. 78 (June 14, 1788). See also Federalist No. 81, which says: "[T]he Constitution ought to be the standard of construction for the laws, and ... wherever at that place is an evident opposition, the laws ought to requite 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 2011-06-30. Retrieved 2011-05-11 .
^ Treanor, William Michael (2005). "Judicial Review earlier "Marbury"". Stanford Police Review. 58 (2): 455–562. ISSN 0038-9765. JSTOR 40040272.
^ Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review, p. 458.
^ Five of the six Supreme Court justices at that time had sat as circuit judges in the three circuit court cases that were appealed. All five of them had found the statute unconstitutional in their chapters as excursion judges.
^ There was no official report of the case. The case is described in a note at the end of the Supreme Court's decision in United States v. Ferreira, 54 U.S. (xiii How.) 40 (1851).
^ Professor Jack Rakove wrote: "Hylton v. United States was manifestly a example of judicial review of the constitutionality of legislation, in an area of governance and public policy far more than sensitive than that exposed by Marbury, and it was a instance whose implications observers seemed to grasp." Meet Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police Review at 1039–41.
^ Justice Chase'south opinion stated: "[I]t is unnecessary, at this fourth dimension, for me to determine, whether this court, constitutionally possesses the power to declare an act of congress void, on the footing 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 argument well-nigh decisions past judges in the circuits referred to Hayburn'due south Instance.
^ 7 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). Run into Elliot, Jonathan (1907) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 4 (expanded 2nd ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-9. . 3 states passed resolutions expressing disapproval but did not transmit formal responses to Kentucky and Virginia (Maryland, Pennsylvania, and New Jersey). Anderson, Frank Maloy (1899). "Gimmicky Stance of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244. . The other 4 states took no action.
^ Elliot, Jonathan (1907) [1836]. "Answers of the Several State Legislatures: Land 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-nine. . The other states taking the position that the constitutionality of federal laws is a question for the federal courts, non the states, were New York, Massachusetts, Rhode Island, New Hampshire, and Pennsylvania. The Governor of Delaware and a Commission of the Maryland legislature also took this position. The remaining states did not address this issue. Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244.
^ For a more than detailed clarification of the case, run across Marbury five. Madison.
^ In that location were several non-constitutional issues, including whether Marbury was entitled to the commission and whether a writ of mandamus was the advisable remedy. The Courtroom'southward stance dealt with those problems start, finding that Marbury was entitled to the committee and that mandamus was a proper remedy. Come across Marbury 5. Madison.
^ Article Three of the Constitution says: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases ... the Supreme Court shall accept appellate jurisdiction."
^ Marbury, five U.Due south. at 175–176.
^ Marbury, 5 U.S., pp. 176–177.
^ Marbury, v U.South., pp. 177–178.
^ Marbury, five U.Due south., pp. 178–180.
^ Bickel, Alexander (1962). The To the lowest degree Dangerous Branch: The Supreme Courtroom at the Bar of Politics . Indianapolis: Bobbs-Merrill. p. ane. ISBN9780300032994.
^ Treanor, "Judicial Review Before Marbury", 58 Stanford Police Review at 555. Meet also Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Law Review at 1035–41.
^ Laura Langer, Judicial Review in State Supreme Courts: A Comparative Written report (Albany: Land University of New York Press, 2002), p. iv
^ ^a ^b Meet Menez, Joseph et al., Summaries of Leading Cases on the Constitution, folio 125 (2004).
^ The Supreme Court later decided that a number of other cases finding state statutes unconstitutional. Meet, for example, Sturges v. Crowninshield, 17 U.S. (four Wheat.) 122 (1819), McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and Gibbons five. Ogden, 22 U.S. (9 Wheat.) ane (1824).
^ Meet Little 5. Barreme, six U.South. (2 Cranch) 170 (1804) (the "Flying Fish case").
^ The Supreme Court and the Constitution, Charles A. Beard, pp. 70-71
^ Judicial Review and Non-enforcement at the Founding, University of Pennsylvania, p. 496
^ University of Pennsylvania Law Review and American Police Register
^ Corwin on the Constitution, Edward Samuel Corwin
^ Hamilton, Alexander. Federalist #78 (June fourteen, 1788).
^ Yates, Robert (writing equally "Brutus"). Anti-Federalist Papers(31 January 1788) Archived 17 August 2007 at the Wayback Automobile.
^ Jefferson, Thomas. The Writings of Thomas Jefferson, Alphabetic character to William Jarvis (September 28, 1820).
^ Lincoln, Abraham. First Countdown Address Archived 2007-08-17 at the Wayback Machine (March 4, 1861).
^ See Due west.W. Crosskey, Politics and the Constitution in the History of the United states of america (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 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.), one–34, and bibliography at 133–149. See more at: http://constitution.findlaw.com/article3/annotation13.html#f576
^ Satterlee 5. Matthewson, 27 U.S. 380 (1829).
^ "Unstatutable – Definition and More from the Free Merriam-Webster Dictionary". Merriam-Webster . Retrieved viii May 2013.
^ "Commodity 3, Section 2, Clause 2: Brutus, no. xiv".
^ Ogden v. Saunders, 25 U.S. 213 (1827).
^ New York State Bd. of Elections v. Lopez Torres, 552 U.Southward. ___, ___ (2008) (Stevens, J., concurring).
^ Ashwander five. Tennessee Valley Authority, 297 U.S. 288, 346–ix (1936) (Brandeis, concurring) (citing cases)
^ Schwartz, Bernard. A History of the Supreme Courtroom, page 141 (Oxford University Printing US 1995).
^ McPherson, Edward. A political manual for 1868, pages 350–351 (Philp & Solomons 1868).
^ Goldstone, Lawrence. Inherently Unequal: The Betrayal 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 Machine", 78 Indiana Law Periodical 73 (2003).
^ Nackenoff, Carol. "Constitutional Reforms to Heighten Democratic Participation and Deliberation: Non All Clearly Trigger the Article Five Amendment Procedure Archived 2012-03-19 at the Wayback Machine", 67 Maryland Police Review 62, 65 (2007).
^ 403 U.S. 388 (1971).