How Did the Supreme Court Gain the Power of Judicial Review?

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

In the Us, judicial review is the legal power of a court to make up one's mind 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 non explicitly ascertain the power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.^[1]

Two landmark decisions by the U.S. Supreme Courtroom served to ostend the inferred ramble authorisation for judicial review in the Us. In 1796, Hylton five. United states was the first case decided by the Supreme Court involving a directly challenge to the constitutionality of an human activity of Congress, the Carriage Human action of 1794 which imposed a "railroad vehicle tax".^[2] The Court performed judicial review of the plaintiff's merits that the carriage tax was unconstitutional. After review, the Supreme Court decided the Carriage Act was ramble. In 1803, Marbury v. Madison ^[3] was the offset Supreme Court case where the Court asserted its potency to strike down a police every bit unconstitutional. At the end of his opinion in this conclusion,^[iv] Principal Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary outcome of their sworn oath of office to uphold the Constitution as instructed in Commodity Half-dozen of the Constitution.

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

Judicial review before the Constitution [edit]

If the whole legislature, an event to exist deprecated, should effort 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, here is the limit of your authority; and, hither, shall you go, but no further.

—George Wythe in Commonwealth v. Caton

But information technology is not with a view to infractions of the Constitution only, that the independence of the judges may exist an essential safeguard against the furnishings of occasional ill humors in the social club. These sometimes extend no farther than to the injury of particular citizens' individual rights, by unjust and partial laws. Here as well the firmness 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, merely information technology operates as a check upon the legislative trunk 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 qualify their attempts. This is a circumstance calculated to accept more than influence upon the character of our governments, than only few may exist 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 seven of the 13 states had engaged in judicial review and had invalidated state statutes because they violated the state constitution or other higher law.^[7] The first American decision to recognize the principle of judicial review was Bayard 5. Singleton,^[8] decided in 1787 by the Supreme Courtroom of North Carolina's predecessor. ^[nine] The Northward Carolina courtroom and its counterparts in other states treated state constitutions equally statements of governing law to exist interpreted and practical past judges.

These courts reasoned that considering 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 state constitution.^[10] These land courtroom cases involving judicial review were reported in the press and produced public discussion and comment.^[11] Notable state cases involving judicial review include Republic v. Caton, (Virginia, 1782),^[12] ^[thirteen] Rutgers v. Waddington (New York, 1784), Trevett 5. Weeden (Rhode Island, 1786). Scholar Larry Kramer agreed with Justice Iredell that whatever gauge who enforces an unconstitutional law becomes complicit in the unconstitutionality and that they themselves get lawbreakers.^[xiv]

At least vii of the delegates to the Constitutional 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.^[fifteen] Other delegates referred to some of these country 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 before the Ramble Convention.

Some historians fence that Dr. Bonham's Instance was influential in the evolution of judicial review in the United states of america.^[17]

Provisions of the Constitution [edit]

The text of the Constitution does non contain a specific reference to the ability of judicial review. Rather, the ability to declare laws unconstitutional has been accounted an unsaid power, derived from Article 3 and Commodity VI.^[18]

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

The judicial power of the United States, shall be vested in one Supreme Courtroom, and in such junior courts as the Congress may from time to time ordain and constitute. ... The judicial ability shall extend to all cases, in constabulary and disinterestedness, arising under this Constitution, the laws of the United states, and treaties fabricated, or which shall exist made, under their authorization. ... In all cases affecting ambassadors, other public ministers and consuls, and those in which a land shall be a political party, the Supreme Court shall accept original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to constabulary and fact, with such exceptions, and nether such regulations as the Congress shall brand.

The Supremacy Clause of Article Half-dozen states:

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

The power of judicial review has been implied from these provisions based on the following reasoning. It is the inherent duty of the courts to determine the applicative law in any given case. The Supremacy Clause says "[t]his Constitution" is the "supreme law of the state." The Constitution therefore is the fundamental law of the Usa. Federal statutes are the law of the land only when they are "fabricated in pursuance" of the Constitution. State constitutions and statutes are valid only if they are consistent with the Constitution. Any constabulary contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." As function of their inherent duty to decide the law, the federal courts have the duty to interpret and utilize the Constitution and to decide whether a federal or land statute conflicts with the Constitution. All judges are bound to follow the Constitution. If at that place is a conflict, the federal courts accept a duty to follow the Constitution and to treat the conflicting statute as unenforceable. The Supreme Court has concluding appellate jurisdiction in all cases arising nether the Constitution, so the Supreme Court has the ultimate authorisation to determine 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 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 every bit the Virginia Plan. The Virginia Plan included a "council of revision" that would have examined proposed new federal laws and would have accepted or rejected them, like to today's presidential veto. The "quango of revision" would have included the President along with some federal judges. Several delegates objected to the inclusion of federal judges on the council of revision. They argued the federal judiciary, through its power to declare laws unconstitutional, already had the opportunity to protect against legislative inroad, and the judiciary did not demand a second way to negate laws by participating in the council of revision. For example, Elbridge Gerry said federal judges "would have a sufficient bank check against encroachments on their own department by their exposition of the laws, which involved a ability of deciding on their constitutionality. In some states the judges had really set aside laws, as being against the constitution. This was washed too with general approbation."^[twenty] Luther Martin said: "[A]s to the constitutionality of laws, that betoken will come up 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 will have a double negative."^[21] These and other similar 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 afterward deciding on the constitutionality of those laws could exist impaired.^[22] These comments indicated a belief that the federal courts would have the ability to declare laws unconstitutional.^[23]

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

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

In all, fifteen 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 idea that the federal courts would accept the power of judicial review.^[26] Some delegates to the Constitutional Convention did non speak about judicial review during the Convention, just did speak near it before or after the Convention. Including these additional comments by Convention delegates, scholars have found that twenty-five or 20-6 of the Convention delegates fabricated comments indicating support for judicial review, while 3 to six delegates opposed judicial review.^[27] Ane review of the debates and voting records of the convention counted as many as forty delegates who supported judicial review, with 4 or five opposed.^[28]

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

Country ratification debates [edit]

Judicial review was discussed in at least 7 of the thirteen state ratifying conventions, and was mentioned past almost two dozen delegates. In each of these conventions, delegates asserted that the proposed Constitution would let the courts to practise judicial review. There is no tape of any consul to a land 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 practice judicial review: "If a law should be fabricated inconsistent with those powers vested by this instrument in Congress, the judges, every bit a consequence of their independence, and the particular powers of authorities beingness divers, will declare such law to be 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 full general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go across their powers, if they brand a police force which the Constitution does non authorize, it is void; and the judicial ability, the national judges, who, to secure their impartiality, are to be fabricated independent, volition declare it to exist void."^[33]

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

Later reviewing the statements made by the founders, one scholar concluded: "The evidence from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the term 'judicial power' [in Article 3] 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, made several references to the power of judicial review. The most all-encompassing discussion of judicial review was in Federalist No. 78, written by Alexander Hamilton, which conspicuously explained that the federal courts would take the power 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 against abuse of power by Congress:

[T]he courts were designed to exist an intermediate body between the people and the legislature, in social club, amongst 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 exist regarded by the judges, as a fundamental law. It therefore belongs to them to define its pregnant, also every bit the meaning of any particular act proceeding from the legislative trunk. If there should happen to be an irreconcilable variance betwixt 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 conclusion past any ways suppose a superiority of the judicial to the legislative power. It just supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the quondam. They ought to regulate their decisions by the fundamental laws, rather than by those which are non fundamental. ...

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

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

In Federalist No. lxxx, Hamilton rejected the thought that the power to decide the constitutionality of an act of Congress should prevarication with each of united states: "The mere necessity of uniformity in the interpretation of the national laws, decides the question. Xiii independent courts of terminal jurisdiction over the same causes, arising upon the same laws, is a hydra in regime, from which nothing merely contradiction and confusion 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 dominance to hear appeals from the land courts in cases relating to the Constitution.^[38]

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

[T]he judges under this constitution will command the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to requite the constitution an caption, and there is no power above them to set up aside their judgment. ... The supreme court then take a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare information technology void.^[39]

Judicial review between 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 court jurisdiction. Section 25 of the Judiciary Human action provided for the Supreme Court to hear appeals from state courts when the state court decided that a federal statute was invalid, or when the land court upheld a country statute against a claim that the state statute was repugnant to the Constitution. This provision gave the Supreme Court the power to review country court decisions involving the constitutionality of both federal statutes and country statutes. The Judiciary Act thereby incorporated the concept of judicial review.

Courtroom decisions from 1788 to 1803 [edit]

Between the ratification of the Constitution in 1788 and the decision in Marbury v. Madison in 1803, judicial review was employed in both the federal and state courts. A detailed assay has identified thirty-one country or federal cases during this time in which statutes were struck down as unconstitutional, and seven additional cases in which statutes were upheld simply at to the lowest degree one judge ended the statute was unconstitutional.^[40] The author of this analysis, Professor William Treanor, concluded: "The sheer number of these decisions non only belies the notion that the institution of judicial review was created past Chief Justice Marshall in Marbury, it likewise reflects widespread acceptance and application of the doctrine."^[41]

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

In Hayburn'south Case, 2 U.S. (2 Dall.) 408 (1792), federal circuit courts held an act of Congress unconstitutional for the first fourth dimension. Three federal circuit courts found that Congress had violated the Constitution by passing an act requiring circuit court judges to decide pension applications, subject to the review of the Secretary of War. These circuit courts found that this was non a proper judicial office nether Article 3. 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 Court conclusion in 1794, United States five. Yale Todd,^[43] the Supreme Courtroom reversed a pension that was awarded nether the same pension act that had been at consequence in Hayburn'south Case. The Courtroom apparently decided that the act designating judges to determine pensions was not constitutional because this was not a proper judicial function. This apparently was the first Supreme Court case to find an act of Congress unconstitutional. Nonetheless, in that location was not an official study of the instance and information technology was not used equally a precedent.

Hylton v. Usa, 3 U.S. (3 Dall.) 171 (1796), was the first case decided by the Supreme Court that involved a claiming to the constitutionality of an act of Congress. Information technology was argued that a federal revenue enhancement on carriages violated the constitutional provision regarding "directly" taxes. The Supreme Court upheld the revenue enhancement, finding it was constitutional. Although the Supreme Court did non strike downwardly the deed in question, the Court engaged in the process of judicial review past because the constitutionality of the revenue enhancement. The instance was widely publicized at the fourth dimension, and observers understood that the Court was testing the constitutionality of an human action of Congress.^[44] Considering it found the statute valid, the Court did not have to assert that it had the power to declare a statute unconstitutional.^[45]

In Ware 5. Hylton, 3 U.S. (3 Dall.) 199 (1796), the Supreme Courtroom for the offset fourth dimension struck down a land 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 Neat Britain. Relying on the Supremacy Clause, the Court found the Virginia statute invalid.

In Hollingsworth 5. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Courtroom found that it did not have jurisdiction to hear the case because of the jurisdiction limitations of the Eleventh Amendment. This holding could be viewed as an implicit finding that the Judiciary Act of 1789, which would take allowed the Court jurisdiction, was unconstitutional in role. However, the Court did not provide any reasoning for its conclusion and did not say that information technology was finding the statute unconstitutional.^[46]

In Cooper v. Telfair, 4 U.South. (4 Dall.) xiv (1800), Justice Chase stated: "Information technology is indeed a general opinion—information technology is expressly admitted by all this bar and some of the judges accept, individually in the circuits decided, that the Supreme Court can declare an deed of Congress to exist unconstitutional, and therefore invalid, but there is no adjudication of the Supreme Courtroom itself upon the point."^[47]

Responses to the Kentucky and Virginia Resolutions [edit]

In 1798, the Kentucky and Virginia legislatures passed a series of resolutions asserting that u.s. accept the ability to make up one's mind whether acts of Congress are ramble. In response, ten states passed their own resolutions disapproving the Kentucky and Virginia Resolutions.^[48] Half-dozen of these states took the position that the ability to declare acts of Congress unconstitutional lies in the federal courts, non in the state legislatures. For example, Vermont's resolution stated: "It belongs non to land legislatures to decide on the constitutionality of laws made past the full general government; this power being exclusively vested in the judiciary courts of the Marriage."^[49]

Thus, five years earlier Marbury 5. Madison, a number of state legislatures stated their agreement that under the Constitution, the federal courts possess the power of judicial review.

Marbury v. Madison [edit]

Marbury was the first Supreme Court conclusion to strike down an deed of Congress as unconstitutional. Chief 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 State, James Madison, to deliver to Marbury a commission appointing him every bit a justice of the peace. Marbury filed his case directly 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 Courtroom had jurisdiction to hear the case.^[51] The Judiciary Act of 1789 gave the Supreme Court original jurisdiction in cases involving writs of mandamus. And then, under the Judiciary Act, the Supreme Court would have had jurisdiction to hear Marbury'due south case. However, the Constitution describes the cases in which the Supreme Courtroom has original jurisdiction, and does not include mandamus cases.^[52] The Judiciary Act therefore attempted to give the Supreme Court jurisdiction that was not "warranted past the Constitution."^[53]

Marshall's opinion stated that in the Constitution, the people established a 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 time be passed by those intended to be restrained." Marshall observed that the Constitution is "the fundamental and paramount police of the nation", and that information technology cannot exist altered by an ordinary act of the legislature. Therefore, "an act of the Legislature repugnant to the Constitution is void."^[54]

Marshall then discussed the role of the courts, which is at the heart of the doctrine of judicial review. It would exist an "applesauce", said Marshall, to crave the courts to apply a police force that is void. Rather, it is the inherent duty of the courts to interpret and utilize the Constitution, and to determine whether at that place 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 employ the dominion to particular cases must, of necessity, expound and interpret that dominion. If ii laws conflict with each other, the Courts must decide on the operation of each.

So, if a constabulary be in opposition to the Constitution, if both the constabulary and the Constitution apply to a particular case, so that the Court must either decide that example conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the police, the Courtroom must make up one's mind 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 whatsoever ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. ...^[55]

Marshall stated that the courts are authorized past the provisions of the Constitution itself to "expect into" the Constitution, that is, to interpret and utilize information technology, 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 6 requires judges to accept an oath "to support this Constitution." Article VI as well states that only laws "fabricated 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 be 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 instrument."^[56]

Marbury long has been regarded as the seminal case with respect to the doctrine of judicial review. Some scholars accept suggested that Marshall's opinion in Marbury essentially created judicial review. In his book The Least Dangerous 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 Great Primary Justice, John Marshall—non single-handed, but starting time and foremost—was at that place to do information technology and did. If any social process can be said to have been 'done' at a given fourth dimension, and by a given act, it is Marshall'due south achievement. The time was 1803; the act was the decision in the example 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 best-selling by the Constitution's framers, was explained in the Federalist Papers and in the ratification debates, and was used past 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 broad support."^[58]

Judicial review afterwards Marbury [edit]

Marbury was the bespeak at which the Supreme Court adopted a monitoring part over government actions.^[59] After the Court exercised its power of judicial review in Marbury, it avoided hit down a federal statute during the adjacent fifty years. The courtroom would not exercise then again until Dred Scott v. Sandford, threescore U.S. (19 How.) 393 (1857).^[60]

Withal, the Supreme Court did practise judicial review in other contexts. In particular, the Court struck downwards a number of state statutes that were opposite to the Constitution. The outset example in which the Supreme Courtroom struck downwards a state statute as unconstitutional was Fletcher 5. Peck, 10 U.S. (half-dozen Cranch) 87 (1810).^[61]

In a few cases, state courts took the position that their judgments were concluding and were not discipline to review by the Supreme Courtroom. They argued that the Constitution did non give the Supreme Court the authorization to review state court decisions. They asserted that the Judiciary Human action of 1789, which provided that the Supreme Courtroom could hear certain appeals from state courts, was unconstitutional. In effect, these land courts were asserting that the principle of judicial review did not extend to let federal review of land court decisions. This would have left us free to adopt their ain interpretations of the Constitution.

The Supreme Court rejected this statement. In Martin 5. Hunter'due south Lessee, 14 U.S. (1 Wheat.) 304 (1816), the Court held that under Article III, the federal courts have jurisdiction to hear all cases arising under the Constitution and laws of the United States, and that the Supreme Court has appellate jurisdiction in all such cases, whether those cases are filed in state or federal courts. The Court issued another decision to the same result in the context of a criminal example, Cohens v. Virginia, xix U.Due south. (vi Wheat.) 264 (1821). Information technology is now well established that the Supreme Courtroom may review decisions of state courts that involve federal law.

The Supreme Courtroom as well has reviewed actions of the federal executive branch to determine whether those deportment were authorized past acts of Congress or were beyond the dominance granted by Congress.^[62]

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

Criticism of judicial review [edit]

Although judicial review has now become an established part of constitutional police in the U.s., there are some who disagree with the doctrine.

I of the get-go 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 do not pretend to vindicate the law, which has been the subject of controversy: it is immaterial what law they accept declared void; it is their usurpation of the authorization to practice it, that I complain of, as I practice nearly positively deny that they have any such power; nor can they find whatever thing in the Constitution, either directly or impliedly, that volition support them, or give them whatsoever colour of right to exercise that authority.^[66]

At the Ramble Convention, neither proponents nor opponents of judicial review disputed that whatever government based on a written constitution requires some mechanism to forestall laws that violate that constitution from existence made and enforced. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of 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 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 be said that the legislative body are themselves the ramble 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 be the natural presumption, where it is not to be collected from whatsoever particular provisions in the Constitution. It is not 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 than rational to suppose, that the courts were designed to exist an intermediate torso between the people and the legislature, in order, among other things, to keep the latter within 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 ability to impose their own views of the police, without an acceptable check from any other branch of government. Robert Yates, a consul to the Ramble Convention from New York, argued during the ratification process in the Anti-Federalist Papers that the courts would utilize the ability of judicial review loosely to impose their views about the "spirit" of the Constitution:

[I]northward their decisions they volition not confine themselves to any fixed or established rules, but will decide, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may exist, will accept the strength of law; because at that place is no power provided in the constitution, that can right their errors, or controul their adjudications. From this court there is no entreatment.^[68]

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

You lot seem ... to consider the judges every bit the ultimate arbiters of all ramble questions; a very dangerous doctrine indeed, and 1 which would place united states nether the despotism of an oligarchy. Our judges are as honest as other men, and non more so. They have, with others, the same passions for party, for ability, and the privilege of their corps. ... Their power [is] the more unsafe as 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, during his kickoff inaugural address:

[T]he aboveboard denizen 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 Courtroom, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to exist their own rulers, having to that extent practically resigned their Government into the easily of that eminent tribunal. Nor is there in this view any set on upon the court 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 error of theirs if others seek to turn their decisions to political purposes.^[70]

Lincoln was alluding here to the case of Dred Scott v. Sandford, in which the Courtroom had struck down a federal statute for the kickoff fourth dimension since Marbury five. Madison.^[60]

It has been argued that the judiciary is not the just branch of government that may interpret the pregnant of the Constitution.^{[ who? ]} Article Half-dozen requires federal and country officeholders to be bound "by Oath or Affirmation, to back up this Constitution." Information technology has been argued that such officials may follow their ain interpretations of the Constitution, at least until those interpretations take been tested in court.

Some take argued that judicial review exclusively by the federal courts is unconstitutional^[71] based on two arguments. First, the power of judicial review is not expressly delegated to the federal courts in the Constitution. The 10th Amendment reserves to us (or to the people) those powers not expressly delegated to the federal government. The 2d argument is that the states alone take the power to ratify changes to the "supreme constabulary" (the U.S. Constitution), and each land's understanding of the language of the subpoena therefore becomes germane to its implementation and effect, making it necessary that the states play some office in interpreting its meaning. Under this theory, assuasive 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 downward a federal statute. Justice Washington, speaking for the Marshall Court, put it this way in an 1829 example:

We intend to make up one's mind no more than than that the statute objected to in this case is non repugnant to the Constitution of the United States, and that unless it be and then, this Court 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 nowadays case.^[72]

If a country statute conflicts with a valid federal statute, then courts may strike down the land statute as an unstatutable^[73] violation of the Supremacy Clause. But a federal courtroom may not strike down a statute absent-minded a violation of federal law or of the federal Constitution.

Moreover, a suspicion or possibility of unconstitutionality is not plenty for American courts to strike downwardly a statute. Alexander Hamilton explained in Federalist 78 that the standard of review should be "irreconcilable variance" with the Constitution. Anti-federalists agreed that courts would be unable to strike downward federal statutes absent a conflict with the Constitution. For case, Robert Yates, writing nether the pseudonym "Brutus", asserted that "the courts of the full general government [volition] be nether obligation to notice the laws fabricated by the general legislature not repugnant to the constitution."^[74]

These principles—that federal statutes tin simply be struck down for unconstitutionality and that the unconstitutionality must be clear—were very mutual views at the time of the framing of the Constitution. For example, George Stonemason explained during the constitutional convention that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did non come up obviously nether this description, they would be nether the necessity as 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 example: "It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which whatever law is passed, to presume 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 accounted unconstitutional in case of a clear contradiction until the twentieth century, this presumption of constitutionality weakened somewhat during the twentieth century, as exemplified past the Supreme Court's famous footnote four in United states v. Carolene Products Co., 304 U.South. 144 (1938), which suggested that statutes may be subjected to closer scrutiny in sure types of cases. Yet, the federal courts have not departed from the principle that courts may only strike down statutes for unconstitutionality.

Of class, the practical implication of this principle is that a court cannot strike downwards a statute, even if information technology recognizes that the statute is obviously poorly drafted, irrational, or arises from legislators' decadent 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 opinion: "[A]s I recall my esteemed old 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 law without at to the lowest degree one party having legal standing to engage in a lawsuit. This principle means that courts sometimes exercise not exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some country courts, such equally the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).

The U.S. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the instance earlier information technology could exist decided on other grounds, an attitude and practice exemplifying judicial restraint. Justice Brandeis framed it thus (citations omitted):^[77]

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

The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to determine such questions is legitimate merely in the last resort, and every bit a necessity in the conclusion of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly adapt, a party beaten in the legislature could transfer to the courts an inquiry equally to the constitutionality of the legislative human action.

The Court will not anticipate a question of ramble law in advance of the necessity of deciding it. It is non the habit of the court to decide questions of a constitutional nature unless admittedly necessary to a decision of the case.

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

The Court will non pass upon a constitutional question although properly presented past the record, if there is also present some other ground upon which the case may exist disposed of ... If a instance can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Courtroom volition make up one's mind only the latter.

The Court will not laissez passer upon the validity of a statute upon complaint of i who fails to testify that he is injured by its performance.

The Court will not pass upon the constitutionality of a statute at the instance of i 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 doubt of constitutionality is raised, it is a primal principle that this Court volition first ascertain whether a structure of the statute is fairly possible past which the question may be avoided.

Laws limiting judicial review [edit]

Although the Supreme Court continues to review the constitutionality of statutes, Congress and the states retain some power to influence what cases come before the Court. For example, the Constitution at Article Iii, Section 2, gives Congress power to make exceptions to the Supreme Court'due south appellate jurisdiction. The Supreme Court has historically acknowledged that its appellate jurisdiction is divers by Congress, and thus Congress may have power to brand some legislative or executive actions unreviewable. This is known as jurisdiction stripping.

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

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

Administrative review [edit]

The procedure for judicial review of federal administrative regulation in the United states of america is set forth by the Administrative Procedure Act although the courts have ruled such as in Bivens five. Six Unknown Named Agents ^[83] that a person may bring a case on the grounds of an unsaid cause of activity when no statutory procedure exists.

Notes [edit]

^ "The Establishment of Judicial Review". Findlaw.
^ Congress, U.s.a.. "United States Statutes at Large, Volume i" – via Wikisource.
^ Marbury v. Madison, 5 The states (1 Cranch) 137 (1803).
^ "Marbury v. Madison – John Marshall – 1803 – AMDOCS: Documents for the Study of American History".
^ See Congressional Research Services' The Constitution of the Us, Analysis And Interpretation, 2013 Supplement, pp. 49–50.
^ "Table of Laws Held Unconstitutional in Whole or in Part past the Supreme Court". U.S. Congress. Retrieved Feb 22, 2021.
^ Prakash, Saikrishna B.; Yoo, John C. (2003). "The Origins of Judicial Review". The Academy of Chicago Law Review. 70 (3): 887–982. doi:10.2307/1600662. ISSN 0041-9494. JSTOR 1600662.
^ Bayard v. Singleton , i Northward.C. 5 (N.C. 1787).
^ Brown, Andrew. "Bayard v. Singleton: Northward Carolina as the Pioneer of Judicial Review". North Carolina Establish of Constitutional Law. 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", lxx U. of Chicago Law Review, p. 936.
^ The Judicial Co-operative 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", lxx U. of Chicago Law 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, as beingness against the constitution." Farrand, The Records of the Federal Convention of 1787, vol. 1, p. 97.
^ Corwin, Edward Due south. (1929). "The "Higher Law" Background of American Constitutional Law". Harvard Constabulary Review. Harvard Law Review Association. 42 (iii). doi:10.2307/1330694. ISSN 0017-811X. JSTOR 1330694.
^ While the Constitution does not explicitly authorize judicial review, it also does non explicitly prohibit it, every bit 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 non to exist exercised." Virginia Constitution of 1776 Archived 2008-06-04 at the Wayback Machine via Avalon Project at Yale Law School.
^ See Marbury five. Madison, 5 U.S. at 175–78.
^ See Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 1. New Haven: Yale University Printing. p. 97.
^ Farrand, The Records of the Federal Convention of 1787, vol. 2, p. 76. Nathaniel Gorham too made comments forth these lines. See Rakove, Jack N. (1997). "The Origins of Judicial Review: A Plea for New Contexts". Stanford Law Review. 49 (5): 1031–64. doi:ten.2307/1229247. ISSN 0038-9765. JSTOR 1229247.
^ Delegates making these comments included Rufus Male monarch, Caleb Potent, Nathaniel Gorham, and John Rutledge. Run across 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 Program ultimately morphed into the Presidential veto. In its final form, the executive solitary would practice the veto, without participation by the federal judiciary.
^ Ibid., p. 93. Delegates approving of judicial review besides included James Wilson and Gouverneur Morris, among others. Encounter Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary Review at 941–43.
^ ^a ^b ^c Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. two. New Haven: Yale University Press. p. 78.
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, p. 952. The two delegates who disapproved judicial review, John Dickinson and John Mercer, did not propose a provision prohibiting judicial review. During the land ratification conventions, they acknowledged that nether the final Constitution, the courts would accept the ability of judicial review. Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, p. 943.
^ Raoul Berger found that twenty-vi Convention delegates supported Constitution review, with six opposed. Berger, Raoul (1969). Congress v. The Supreme Court . Harvard University Printing. 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).
^ Run across Prakash and Yoo, "The Origins of Judicial Review", lxx U. of Chicago Law Review at pp. 931–32.
^ James Madison at ane point said that the courts' power of judicial review should be limited to cases of a judiciary nature: "He doubted whether it was not going too far to extend the jurisdiction of the Court by and large to cases arising under the Constitution and whether information technology ought not to be limited to cases of a judiciary nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that department." Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. ii. New Haven: Yale University Press. p. 430. Madison wanted to clarify that the courts would not have a free-floating power to declare unconstitutional whatsoever constabulary that was passed; rather, the courts would be able to rule on constitutionality of laws but when those laws were properly presented to them in the context of a courtroom case that came before them. Come across Burr, Charles, "Unconstitutional Laws and the Federal Judicial Ability", lx U. Pennsylvania Law Review 624, 630 (1912). No change in the linguistic communication was made in response to Madison's comment.
^ Run into 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 Land 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 Pregnant of Judicial Power", 12 Supreme Court Economic Review 115, 138 (2004).
^ Hamilton, Alexander. Federalist No. 78 (June fourteen, 1788). Run across also Federalist No. 81, which says: "[T]he Constitution ought to exist the standard of structure 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 2, 1788)
^ "The Problem of Judicial Review – Educational activity American History". Archived from the original on 2011-06-30. Retrieved 2011-05-eleven .
^ Treanor, William Michael (2005). "Judicial Review before "Marbury"". Stanford Law Review. 58 (2): 455–562. ISSN 0038-9765. JSTOR 40040272.
^ Treanor, "Judicial Review Before Marbury", 58 Stanford Constabulary Review, p. 458.
^ Five of the six Supreme Court justices at that time had sat as excursion judges in the three excursion courtroom cases that were appealed. All five of them had found the statute unconstitutional in their capacity as circuit judges.
^ There was no official written report of the case. The case is described in a annotation at the end of the Supreme Court's decision in Us v. Ferreira, 54 U.S. (xiii How.) 40 (1851).
^ Professor Jack Rakove wrote: "Hylton v. United States was manifestly a instance 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 example whose implications observers seemed to grasp." See Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Law Review at 1039–41.
^ Justice Chase's 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 existence fabricated contrary to, and in violation of, the constitution."
^ Run into Treanor, "Judicial Review Before Marbury", 58 Stanford Police force Review, p. 547.
^ Chase's argument about decisions past judges in the circuits referred to Hayburn's Example.
^ Seven states formally rejected the Kentucky and Virginia resolutions and transmitted their rejections to Kentucky and Virginia (Delaware, Massachusetts, New York, Connecticut, Rhode Isle, New Hampshire, and Vermont). See Elliot, Jonathan (1907) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. four (expanded second ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-9. . Three states passed resolutions expressing disapproval simply did not transmit formal responses to Kentucky and Virginia (Maryland, Pennsylvania, and New Jersey). Anderson, Frank Maloy (1899). "Gimmicky Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244. . The other four states took no activeness.
^ Elliot, Jonathan (1907) [1836]. "Answers of the Several State Legislatures: State of Vermont". Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 4 (expanded 2nd ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-nine. . The other states taking the position that the constitutionality of federal laws is a question for the federal courts, not the states, were New York, Massachusetts, Rhode Isle, New Hampshire, and Pennsylvania. The Governor of Delaware and a Committee of the Maryland legislature too took this position. The remaining states did not address this event. 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 description of the case, see Marbury v. Madison.
^ There were several not-ramble issues, including whether Marbury was entitled to the commission and whether a writ of mandamus was the appropriate remedy. The Court's opinion dealt with those issues first, finding that Marbury was entitled to the commission and that mandamus was a proper remedy. See Marbury v. Madison.
^ Commodity III of the Constitution says: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a land shall be party, the Supreme Courtroom shall have original jurisdiction. In all the other cases ... the Supreme Court shall have appellate jurisdiction."
^ Marbury, five U.S. at 175–176.
^ Marbury, 5 U.Southward., pp. 176–177.
^ Marbury, five U.S., pp. 177–178.
^ Marbury, 5 U.S., pp. 178–180.
^ Bickel, Alexander (1962). The Least Dangerous Branch: The Supreme Court at the Bar of Politics . Indianapolis: Bobbs-Merrill. p. 1. ISBN9780300032994.
^ Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review at 555. Run into too Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police force Review at 1035–41.
^ Laura Langer, Judicial Review in State Supreme Courts: A Comparative Written report (Albany: State Academy of New York Press, 2002), p. iv
^ ^a ^b See Menez, Joseph et al., Summaries of Leading Cases on the Constitution, page 125 (2004).
^ The Supreme Courtroom afterward decided that a number of other cases finding state statutes unconstitutional. Run into, for case, Sturges v. Crowninshield, 17 U.South. (4 Wheat.) 122 (1819), McCulloch v. Maryland, 17 U.Southward. (4 Wheat.) 316 (1819), and Gibbons v. Ogden, 22 U.South. (9 Wheat.) i (1824).
^ See Piffling 5. Barreme, 6 U.S. (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 Police Review and American Law Annals
^ Corwin on the Constitution, Edward Samuel Corwin
^ Hamilton, Alexander. Federalist #78 (June 14, 1788).
^ Yates, Robert (writing as "Brutus"). Anti-Federalist Papers(31 January 1788) Archived 17 August 2007 at the Wayback Motorcar.
^ 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 Machine (March iv, 1861).
^ Run across W.Due west. Crosskey, Politics and the Constitution in the History of the United States (Chicago: 1953), chs. 27–29, with which compare Hart, Book Review, 67 Harv. 50. Rev. 1456 (1954). A brief review of the fence on the subject is Westin, "Introduction: Charles Bristles and American Fence over Judicial Review, 1790–1961", in: C. Beard, The Supreme Courtroom and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), 1–34, and bibliography at 133–149. Come across 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 three, Section 2, Clause 2: Brutus, no. xiv".
^ Ogden five. Saunders, 25 U.S. 213 (1827).
^ New York State Bd. of Elections v. Lopez Torres, 552 U.Due south. ___, ___ (2008) (Stevens, J., concurring).
^ Ashwander five. Tennessee Valley Potency, 297 U.S. 288, 346–9 (1936) (Brandeis, concurring) (citing cases)
^ Schwartz, Bernard. A History of the Supreme Court, page 141 (Oxford University Press 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 Courtroom Supermajority Rule: Lessons From the By Archived 2012-03-09 at the Wayback Automobile", 78 Indiana Law Periodical 73 (2003).
^ Nackenoff, Carol. "Constitutional Reforms to Enhance Democratic Participation and Deliberation: Non All Clearly Trigger the Article V Amendment Process Archived 2012-03-19 at the Wayback Machine", 67 Maryland Law Review 62, 65 (2007).
^ 403 U.S. 388 (1971).