In Which of the Following Cases Did the Supreme Court First Exercise Judicial Review?

Ability of a court in the The states to examine laws to decide if it contradicts current laws

In the United States, judicial review is the legal power 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 U.s.a. Constitution. While the U.S. Constitution does not explicitly define the power of judicial review, the authorization for judicial review in the United States has been inferred from the construction, provisions, and history of the Constitution.^[1]

Two landmark decisions past the U.Southward. Supreme Court served to ostend the inferred ramble say-so for judicial review in the United States. In 1796, Hylton v. United States was the commencement case decided by the Supreme Court involving a straight challenge to the constitutionality of an human activity of Congress, the Carriage Act of 1794 which imposed a "carriage tax".^[2] The Court performed judicial review of the plaintiff'due south merits that the carriage tax was unconstitutional. After review, the Supreme Court decided the Carriage Human activity was ramble. In 1803, Marbury v. Madison ^[3] was the first Supreme Court case where the Court asserted its authority to strike downwardly a police force as unconstitutional. At the end of his stance in this determination,^[iv] Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn adjuration of office to uphold the Constitution as instructed in Article Six of the Constitution.

Every bit of 2014^[update], the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional.^[5] In the period 1960–2019, the Supreme Courtroom has held 483 laws unconstitutional in whole or in office.^[half-dozen]

Judicial review before the Constitution [edit]

If the whole legislature, an event to exist deprecated, should attempt to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the land, 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, here, shall you go, but no further.

—George Wythe in Commonwealth v. Caton

Only it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional sick humors in the lodge. These sometimes extend no further than to the injury of particular citizens' individual rights, by unjust and fractional laws. Hither besides the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. Information technology not merely serves to moderate the immediate mischiefs of those which may have been passed, but information technology operates equally a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to exist expected from the scruples of the courts, are in a fashion compelled, past 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 simply few may exist aware of.

—Alexander Hamilton in Federalist No. 78

Earlier the Constitutional Convention in 1787, the ability of judicial review had been exercised in a number of states. In the years from 1776 to 1787, country courts in at to the lowest degree seven of the xiii states had engaged in judicial review and had invalidated state statutes because they violated the land constitution or other higher law.^[vii] The first American conclusion to recognize the principle of judicial review was Bayard 5. Singleton,^[8] decided in 1787 by the Supreme Court of North Carolina's predecessor. ^[9] The Northward Carolina court and its counterparts in other states treated state constitutions equally statements of governing law to exist interpreted and practical by judges.

These courts reasoned that because their state constitution was the fundamental law of the state, they must apply the state constitution rather than an act of the legislature that was inconsistent with the country constitution.^[10] These state court cases involving judicial review were reported in the press and produced public word and comment.^[11] Notable state cases involving judicial review include Republic 5. Caton, (Virginia, 1782),^[12] ^[13] Rutgers v. Waddington (New York, 1784), Trevett v. Weeden (Rhode Isle, 1786). Scholar Larry Kramer agreed with Justice Iredell that any judge who enforces an unconstitutional law becomes complicit in the unconstitutionality and that they themselves go lawbreakers.^[14]

At least seven 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.^[15] Other delegates referred to some of these country courtroom cases during the debates at the Constitutional Convention.^[16] The concept of judicial review therefore was familiar to the framers and to the public before the Ramble Convention.

Some historians contend that Dr. Bonham's 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 ability to declare laws unconstitutional has been accounted an implied ability, derived from Article III and Commodity VI.^[xviii]

The provisions relating to the federal judicial ability in Commodity 3 state:

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

The Supremacy Clause of Article Vi states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Constabulary of the Land; and the Judges in every Land shall be bound thereby, whatever Thing in the Constitution or Laws of any State to the Contrary nevertheless. ... [A]ll executive and judicial Officers, both of the United States and of the several States, shall exist bound by Oath or Affirmation, to back up 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 instance. The Supremacy Clause says "[t]his Constitution" is the "supreme law of the land." The Constitution therefore is the fundamental law of the United states of america. Federal statutes are the law of the land only when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid only if they are consistent with the Constitution. Whatever law contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." Every bit part of their inherent duty to determine the constabulary, the federal courts have the duty to interpret and employ the Constitution and to make up one's mind whether a federal or state statute conflicts with the Constitution. All judges are bound to follow the Constitution. If in that location is a conflict, the federal courts have a duty to follow the Constitution and to care for the conflicting statute as unenforceable. The Supreme Courtroom has final appellate jurisdiction in all cases arising under the Constitution, so the Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution.^[nineteen]

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

Ramble 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 "quango of revision" that would have examined proposed new federal laws and would have accepted or rejected them, similar to today's presidential veto. The "quango 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 encroachment, and the judiciary did non need a second mode to negate laws past participating in the council of revision. For example, Elbridge Gerry said federal judges "would have a sufficient check against encroachments on their own department by their exposition of the laws, which involved a ability of deciding on their constitutionality. In some states the judges had actually ready aside laws, equally being against the constitution. This was washed also with full general approbation."^[twenty] Luther Martin said: "[A]s to the constitutionality of laws, that indicate will come up before the judges in their official character. In this character they take 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 constabulary-making procedure through participation on the council of revision, their objectivity equally 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 example, James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges every bit cipher & void."^[24] George Bricklayer said that federal judges "could declare an unconstitutional law void."^[25] However, Mason added that the ability of judicial review is not a full general power to strike downward all laws, but only ones that are unconstitutional:^[25]

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

In all, 15 delegates from ix states made comments regarding the power of the federal courts to review the constitutionality of laws. All but two of them supported the thought that the federal courts would have the power of judicial review.^[26] Some delegates to the Ramble Convention did non speak about judicial review during the Convention, only did speak virtually it before or later on the Convention. Including these additional comments past Convention delegates, scholars have found that twenty-five or twenty-six of the Convention delegates made comments indicating support for judicial review, while iii to 6 delegates opposed judicial review.^[27] One review of the debates and voting records of the convention counted every bit many as 40 delegates who supported judicial review, with iv or 5 opposed.^[28]

In their comments relating to judicial review, the framers indicated that the power of judges to declare laws unconstitutional was part of the system of separation of powers. The framers stated that the courts' power to declare laws unconstitutional would provide a check on the legislature, protecting against excessive exercise of legislative power.^[29] ^[30]

Land ratification debates [edit]

Judicial review was discussed in at least seven of the thirteen state ratifying conventions, and was mentioned by almost ii 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 whatever consul to a state ratifying convention who indicated that the federal courts would not have the power of judicial review.^[31]

For instance, James Wilson asserted in the Pennsylvania ratifying convention that federal judges would exercise judicial review: "If a police should exist made inconsistent with those powers vested by this musical instrument in Congress, the judges, as a effect of their independence, and the particular powers of regime being divers, volition declare such constabulary to exist goose egg and void. For the power of the Constitution predominates. Anything, therefore, that shall exist enacted by Congress contrary thereto volition not take the strength 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 full general government. If the full general legislature should at any fourth dimension overleap their limits, the judicial department is a ramble check. If the U.s. go across their powers, if they make a law which the Constitution does not qualify, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to exist made independent, volition declare it to be void."^[33]

During the ratification process, supporters and opponents of ratification published pamphlets, essays, and speeches debating various aspects of the Constitution. Publications by over a dozen authors in at least twelve of the xiii states asserted that under the Constitution, the federal courts would take 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 bear witness from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the term 'judicial power' [in Commodity 3] included the power to nullify unconstitutional laws."^[35]

The Federalist Papers [edit]

The Federalist Papers, which were published in 1787–1788 to promote ratification of the Constitution, made several references to the power of judicial review. The most extensive discussion of judicial review was in Federalist No. 78, written by Alexander Hamilton, which clearly explained that the federal courts would have 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 considering it would protect the people against abuse of power by Congress:

[T]he courts were designed to be an intermediate trunk between the people and the legislature, in order, amid other things, to keep the latter within the limits assigned to their potency. 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, every bit a fundamental law. It therefore belongs to them to ascertain its meaning, every bit well as the pregnant of any particular act proceeding from the legislative body. 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 whatever means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the quondam. They ought to regulate their decisions by the cardinal laws, rather than by those which are non fundamental. ...

[A]ccordingly, whenever a item statute contravenes the Constitution, it will be the duty of the Judicial tribunals to attach to the latter and condone the former. ...

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

In Federalist No. eighty, Hamilton rejected the thought that the power to make up one's mind 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 contained courts of terminal jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing just contradiction and confusion tin can proceed."^[37] Consistent with the need for uniformity in interpretation of the Constitution, Hamilton explained in Federalist No. 82 that the Supreme Courtroom has dominance to hear appeals from the state 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 nether this constitution will control the legislature, for the supreme court are authorised in the concluding resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to prepare bated their judgment. ... The supreme courtroom then accept a right, independent of the legislature, to give a structure to the constitution and every part of it, and there is no ability 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 volition declare it void.^[39]

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

Judiciary Human activity of 1789 [edit]

The commencement Congress passed the Judiciary Deed of 1789, establishing the lower federal courts and specifying the details of federal court jurisdiction. Section 25 of the Judiciary Act provided for the Supreme Court to hear appeals from country courts when the state court decided that a federal statute was invalid, or when the state court upheld a state statute against a claim that the state statute was repugnant to the Constitution. This provision gave the Supreme Court the power to review state courtroom decisions involving the constitutionality of both federal statutes and state statutes. The Judiciary Act thereby incorporated the concept of judicial review.

Court decisions from 1788 to 1803 [edit]

Between the ratification of the Constitution in 1788 and the decision in Marbury v. Madison in 1803, judicial review was employed in both the federal and land courts. A detailed analysis has identified thirty-1 state or federal cases during this fourth dimension in which statutes were struck down as unconstitutional, and seven additional cases in which statutes were upheld but at least one judge concluded the statute was unconstitutional.^[40] The writer of this analysis, Professor William Treanor, concluded: "The sheer number of these decisions not simply belies the notion that the institution of judicial review was created by Main Justice Marshall in Marbury, it besides reflects widespread acceptance and application of the doctrine."^[41]

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

In Hayburn's Case, two U.S. (two Dall.) 408 (1792), federal excursion courts held an act of Congress unconstitutional for the offset time. Three federal circuit courts found that Congress had violated the Constitution by passing an act requiring circuit court judges to determine pension applications, subject to the review of the Secretarial assistant of War. These circuit courts found that this was non a proper judicial office under Article Iii. These three 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 conclusion in 1794, United States v. Yale Todd,^[43] the Supreme Court reversed a pension that was awarded nether the same pension human activity that had been at issue in Hayburn's Case. The Court apparently decided that the deed designating judges to determine pensions was not constitutional because this was not a proper judicial part. This manifestly was the first Supreme Court instance to find an act of Congress unconstitutional. However, there was non an official report of the instance and it was not used every bit a precedent.

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

In Ware v. Hylton, 3 U.Due south. (3 Dall.) 199 (1796), the Supreme Court for the starting time time struck down a land statute. The Court reviewed a Virginia statute regarding pre-Revolutionary state of war debts and constitute that it was inconsistent with the peace treaty betwixt the Us and Swell 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 information technology did non have jurisdiction to hear the case considering of the jurisdiction limitations of the Eleventh Subpoena. This holding could be viewed every bit an implicit finding that the Judiciary Act of 1789, which would have allowed the Court jurisdiction, was unconstitutional in part. All the same, the Court did not provide any reasoning for its decision and did not say that it was finding the statute unconstitutional.^[46]

In Cooper v. Telfair, 4 U.South. (4 Dall.) 14 (1800), Justice Chase stated: "It is indeed a general stance—it is expressly admitted by all this bar and some of the judges have, individually in the circuits decided, that the Supreme Courtroom tin declare an human action of Congress to be unconstitutional, and therefore invalid, but in that location is no adjudication of the Supreme Court itself upon the bespeak."^[47]

Responses to the Kentucky and Virginia Resolutions [edit]

In 1798, the Kentucky and Virginia legislatures passed a series of resolutions asserting that usa 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] Half-dozen of these states took the position that the power to declare acts of Congress unconstitutional lies in the federal courts, not in the country legislatures. For example, Vermont's resolution stated: "It belongs non to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Wedlock."^[49]

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

Marbury v. Madison [edit]

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

The case arose when William Marbury filed a lawsuit seeking an club (a "writ of mandamus") requiring the Secretarial assistant of State, James Madison, to evangelize to Marbury a commission appointing him as a justice of the peace. Marbury filed his case direct in the Supreme Court, invoking the Courtroom'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 case.^[51] The Judiciary Human activity of 1789 gave the Supreme Court original jurisdiction in cases involving writs of mandamus. So, under the Judiciary Act, the Supreme Courtroom would have had jurisdiction to hear Marbury's case. However, the Constitution describes the cases in which the Supreme Court has original jurisdiction, and does non include mandamus cases.^[52] The Judiciary Act therefore attempted to give the Supreme Court jurisdiction that was not "warranted by the Constitution."^[53]

Marshall's opinion stated that in the Constitution, the people established a government of limited powers: "The powers of the Legislature are divers and express; and that those limits may not exist mistaken or forgotten, the Constitution is written." The limits established in the Constitution would exist meaningless "if these limits may at whatever time exist passed by those intended to exist restrained." Marshall observed that the Constitution is "the fundamental and paramount law of the nation", and that it 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 heart of the doctrine of judicial review. Information technology would exist an "applesauce", said Marshall, to require the courts to apply a constabulary that is void. Rather, it is the inherent duty of the courts to translate and employ the Constitution, and to determine whether there is a conflict between a statute and the Constitution:

It is emphatically the province and duty of the Judicial Department to say what the constabulary is. Those who utilize the rule to particular cases must, of necessity, expound and interpret that rule. If two laws disharmonize with each other, the Courts must decide on the functioning of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a item case, so that the Court must either determine that case conformably to the constabulary, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must decide which of these alien rules governs the case. This is of the very essence of judicial duty.

If, and so, the Courts are to regard the Constitution, and the Constitution is superior to whatsoever ordinary deed of the Legislature, the Constitution, and non such ordinary deed, must govern the case 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, Commodity Iii provides that the federal judicial power "is extended to all cases arising nether the Constitution." Article VI requires judges to accept an oath "to back up this Constitution." Commodity Vi also states that only laws "made in pursuance of the Constitution" are the law of the land. Marshall concluded: "Thus, the particular phraseology of the Constitution of the Usa confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, too every bit other departments, are leap by that musical instrument."^[56]

Marbury long has been regarded equally the seminal example with respect to the doctrine of judicial review. Some scholars have suggested that Marshall's stance in Marbury essentially created judicial review. In his book The Least Unsafe Co-operative, Professor Alexander Bickel wrote:

[T]he establishment of the judiciary needed to be summoned up out of the ramble vapors, shaped, and maintained. And the Cracking Chief Justice, John Marshall—not single-handed, but first and foremost—was there to do it and did. If any social process tin exist said to have been 'done' at a given time, and past a given act, information technology is Marshall's achievement. The time was 1803; the human activity was the decision in the instance of Marbury 5. Madison.^[57]

Other scholars view this as an overstatement, and contend 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'due south framers, was explained in the Federalist Papers and in the ratification debates, and was used by both country and federal courts for more than than twenty years before Marbury. Including the Supreme Court in Hylton v. The states. One scholar concluded: "[B]efore Marbury, judicial review had gained wide support."^[58]

Judicial review after Marbury [edit]

Marbury was the bespeak at which the Supreme Court adopted a monitoring role over government actions.^[59] After the Court exercised its power of judicial review in Marbury, it avoided striking down a federal statute during the side by side fifty years. The courtroom would non do so again until Dred Scott v. Sandford, threescore U.Due south. (19 How.) 393 (1857).^[60]

However, the Supreme Court did exercise judicial review in other contexts. In particular, the Court struck down a number of state statutes that were reverse to the Constitution. The get-go instance in which the Supreme Court struck down a state statute as unconstitutional was Fletcher v. Peck, ten U.Due south. (vi Cranch) 87 (1810).^[61]

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

The Supreme Court rejected this statement. In Martin v. Hunter's Lessee, 14 U.Due south. (1 Wheat.) 304 (1816), the Courtroom held that under Article 3, the federal courts have jurisdiction to hear all cases arising under the Constitution and laws of the United states, and that the Supreme Court has appellate jurisdiction in all such cases, whether those cases are filed in state or federal courts. The Court issued another decision to the same effect in the context of a criminal instance, Cohens v. Virginia, xix U.S. (6 Wheat.) 264 (1821). Information technology is now well established that the Supreme Court may review decisions of state courts that involve federal police force.

The Supreme Court also has reviewed actions of the federal executive branch to make up one's mind whether those actions were authorized by acts of Congress or were beyond the authorisation granted by Congress.^[62]

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

Criticism of judicial review [edit]

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

One 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 field of controversy: it is immaterial what law they take declared void; it is their usurpation of the dominance to do it, that I complain of, every bit I do most positively deny that they take whatever such ability; nor tin can they find whatever affair in the Constitution, either direct or impliedly, that will back up them, or give them any colour of right to practice that authority.^[66]

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

If it 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, it may be answered, that this cannot be the natural presumption, where it is not to exist nerveless from any item 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 body 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 have argued that the power of judicial review gives the courts the ability to impose their own views of the law, without an acceptable check from any other branch of regime. Robert Yates, a delegate to the Ramble Convention from New York, argued during the ratification process in the Anti-Federalist Papers that the courts would use the power of judicial review loosely to impose their views about the "spirit" of the Constitution:

[I]due north their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may exist, will have the force of police; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court in that location is no entreatment.^[68]

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

You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very unsafe doctrine indeed, and one which would place u.s.a. under the despotism of an oligarchy. Our judges are equally honest as other men, and non more and then. They take, with others, the same passions for party, for power, and the privilege of their corps. ... Their power [is] the more unsafe as they are in function for life, and not responsible, as 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 political party, its members would get despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.^[69]

In 1861, Abraham Lincoln touched upon the same subject, during his beginning inaugural accost:

[T]he candid denizen must confess that if the policy of the Authorities 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 betwixt parties in personal actions the people will have ceased to exist their own rulers, having to that extent practically resigned their Authorities into the easily of that eminent tribunal. Nor is in that location in this view any set on upon the court or the judges. It is a duty from which they may non shrink to make up one's mind 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 instance of Dred Scott five. Sandford, in which the Courtroom had struck downward a federal statute for the first time since Marbury v. Madison.^[60]

It has been argued that the judiciary is not the only branch of government that may interpret the meaning of the Constitution.^{[ who? ]} Article VI requires federal and country officeholders to be spring "by Adjuration or Affirmation, to support this Constitution." It has been argued that such officials may follow their own interpretations of the Constitution, at least until those interpretations have been tested in court.

Some take argued that judicial review exclusively by the federal courts is unconstitutional^[71] based on 2 arguments. Get-go, the power of judicial review is not expressly delegated to the federal courts in the Constitution. The Tenth Amendment reserves to the states (or to the people) those powers not expressly delegated to the federal government. The second argument is that united states of america lonely have the ability to ratify changes to the "supreme law" (the U.S. Constitution), and each state's understanding of the language of the amendment therefore becomes germane to its implementation and effect, making it necessary that the states play some role in interpreting its meaning. Under this theory, assuasive simply federal courts to definitively conduct judicial review of federal law allows the national government to interpret its own restrictions every bit information technology sees fit, with no meaningful input from the ratifying, that is, validating power.

Standard of review [edit]

In the United states, unconstitutionality is the only footing for a federal court to strike downwardly a federal statute. Justice Washington, speaking for the Marshall Court, put it this way in an 1829 case:

We intend to determine no more than that the statute objected to in this instance is non repugnant to the Constitution of the United States, and that unless it be so, 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 present case.^[72]

If a state statute conflicts with a valid federal statute, so courts may strike downwards the country statute every bit 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 non enough for American courts to strike down 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 example, Robert Yates, writing nether the pseudonym "Brutus", asserted that "the courts of the general government [will] be under obligation to observe the laws made by the general legislature not repugnant to the constitution."^[74]

These principles—that federal statutes can simply be struck downward for unconstitutionality and that the unconstitutionality must be clear—were very common views at the time of the framing of the Constitution. For example, George Mason explained during the constitutional convention that judges "could declare an unconstitutional law void. But with regard to every police force, all the same unjust, oppressive or pernicious, which did not come up obviously under this description, they would be under the necessity as Judges to requite it a complimentary form."^[25]

For a number of years, the courts were relatively deferential to Congress. Justice Washington put it this style, in an 1827 example: "It is only a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubtfulness."^[75]

Although judges normally adhered to this principle that a statute could only exist deemed unconstitutional in case of a clear contradiction until the twentieth century, this presumption of constitutionality weakened somewhat during the twentieth century, as exemplified by the Supreme Courtroom's famous footnote four in United states of america v. Carolene Products Co., 304 U.S. 144 (1938), which suggested that statutes may be subjected to closer scrutiny in certain types of cases. Even so, the federal courts take not departed from the principle that courts may only 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 obviously poorly drafted, irrational, or arises from legislators' decadent motives, unless the flaw in the statute rises to the level of a clear constitutional violation. In 2008, Justice John Paul Stevens reaffirmed this point in a concurring stance: "[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does non prohibit legislatures from enacting stupid laws.'"^[76]

In the federal system, courts may merely make up one's mind actual cases or controversies; it is not possible to request the federal courts to review a law without at least one party having legal standing to appoint in a lawsuit. This principle means that courts sometimes do not practise their power of review, fifty-fifty when a law is seemingly unconstitutional, for want of jurisdiction. In some country courts, such as the Massachusetts Supreme Judicial Court, legislation may be 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.S. Supreme Court seeks to avert reviewing the Constitutionality of an act where the case before it could be decided on other grounds, an mental attitude and practice exemplifying judicial restraint. Justice Brandeis framed it thus (citations omitted):^[77]

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

The Courtroom will not pass upon the constitutionality of legislation in a friendly, not-antagonist, proceeding, failing considering to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy betwixt individuals. It never was the thought that, past means of a friendly arrange, a political party beaten in the legislature could transfer to the courts an inquiry every bit to the constitutionality of the legislative act.

The Court volition not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the courtroom to determine questions of a constitutional nature unless absolutely necessary to a decision of the case.

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

The Courtroom will not pass upon a constitutional question although properly presented by the record, if in that location is as well nowadays another ground upon which the case may exist disposed of ... If a case can exist decided on either of two grounds, ane involving a constitutional question, the other a question of statutory construction or general law, the Court will make up one's mind only the latter.

The Court will non laissez passer upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.

The Court will not laissez passer upon the constitutionality of a statute at the instance of ane who has availed himself of its benefits.

When the validity of an act of the Congress is drawn in question, and fifty-fifty if a serious doubt of constitutionality is raised, it is a key principle that this Court volition outset ascertain whether a construction of the statute is fairly possible past which the question may exist avoided.

Laws limiting judicial review [edit]

Although the Supreme Court continues to review the constitutionality of statutes, Congress and united states retain some power to influence what cases come up before the Courtroom. For instance, the Constitution at Article 3, Section 2, gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction. The Supreme Court has historically acknowledged that its appellate jurisdiction is divers past Congress, and thus Congress may take ability to make 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 bill was proposed requiring a two-thirds majority of the Court in order to deem any Act of Congress unconstitutional.^[78] The pecker was approved by the Business firm, 116 to 39.^[79] That measure died in the Senate, partly because the bill was unclear well-nigh how the bill'due south own constitutionality would exist decided.^[eighty]

Many other bills have been proposed in Congress that would require a supermajority in order for the justices to practice judicial review.^[81] During the early on years of the United states of america, a two-thirds bulk was necessary for the Supreme Courtroom to exercise judicial review; because the Court so consisted of half dozen members, a elementary majority and a two-thirds majority both required four votes.^[82] Currently, the constitutions of two states require a supermajority of supreme court justices in order to exercise judicial review: Nebraska (v out of vii justices) and North Dakota (four out of 5 justices).^[81]

Authoritative review [edit]

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

Notes [edit]

^ "The Establishment of Judicial Review". Findlaw.
^ Congress, United states. "Usa Statutes at Large, Book 1" – via Wikisource.
^ Marbury v. Madison, 5 Usa (1 Cranch) 137 (1803).
^ "Marbury v. Madison – John Marshall – 1803 – AMDOCS: Documents for the Study of American History".
^ See Congressional Inquiry Services' The Constitution of the United States, Analysis And Interpretation, 2013 Supplement, pp. 49–50.
^ "Table of Laws Held Unconstitutional in Whole or in Function past 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 Police Review. seventy (three): 887–982. doi:x.2307/1600662. ISSN 0041-9494. JSTOR 1600662.
^ Bayard five. Singleton , i N.C. five (N.C. 1787).
^ Brown, Andrew. "Bayard v. Singleton: North Carolina equally the Pioneer of Judicial Review". North Carolina Institute of Ramble Police force. Archived from the original on 2019-08-xvi. Retrieved 2019-08-sixteen .
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary Review, pp. 933–934.
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary Review, p. 936.
^ The Judicial Co-operative of State Regime: People, Process, and Politics
^ John Marshall: Definer of a Nation
^ The People Themselves - Popular Constitutionalism and Judicial Review, Larry Kramer
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review p. 939.
^ For case, James Madison referred to "the judges who refused to execute an unconstitutional law" in a Rhode Isle case. Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. ii. New Oasis: Yale Academy Printing. p. 28. Elbridge Gerry noted that "in some states, the judges had actually set bated laws, as being against the constitution." Farrand, The Records of the Federal Convention of 1787, vol. 1, p. 97.
^ Corwin, Edward S. (1929). "The "Higher Law" Background of American Ramble Police force". Harvard Law Review. Harvard Law Review Clan. 42 (3). doi:x.2307/1330694. ISSN 0017-811X. JSTOR 1330694.
^ While the Constitution does not explicitly authorize judicial review, it too does non explicitly prohibit information technology, as did the Virginia Constitution of 1776. That Virginia Constitution said: "All ability of suspending laws, or the execution of laws, by any authorisation, 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.
^ See Marbury 5. Madison, five U.Due south. at 175–78.
^ Come across 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. ii, p. 76. Nathaniel Gorham also made comments along 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:10.2307/1229247. ISSN 0038-9765. JSTOR 1229247.
^ Delegates making these comments included Rufus King, Caleb Potent, Nathaniel Gorham, and John Rutledge. Come across Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police force Review at 1058.
^ The council of revision proposed in the Virginia Plan ultimately morphed into the Presidential veto. In its final class, the executive lone would exercise the veto, without participation by the federal judiciary.
^ Ibid., p. 93. Delegates approving of judicial review too included James Wilson and Gouverneur Morris, amongst others. See 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 Oasis: Yale Academy Press. p. 78.
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, p. 952. The ii delegates who disapproved judicial review, John Dickinson and John Mercer, did non advise a provision prohibiting judicial review. During the country ratification conventions, they acknowledged that under the terminal Constitution, the courts would accept the power of judicial review. Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Police force Review, p. 943.
^ Raoul Berger constitute that twenty-half-dozen Convention delegates supported Constitution review, with six opposed. Berger, Raoul (1969). Congress five. The Supreme Court . Harvard Academy Printing. p. 104. Charles Beard counted xx-5 delegates in favor of judicial review and three against. Bristles, Charles (1962) [1912]. The Supreme Court and the Constitution . Prentice Hall. p. 69.
^ Melvin, Frank, "The Judicial Bulwark of the Constitution", viii American Political Scientific discipline Review 167, 185–195 (1914).
^ Run into Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Police Review at pp. 931–32.
^ James Madison at one bespeak said that the courts' power of judicial review should be express to cases of a judiciary nature: "He doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising nether 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. 2. New Haven: Yale University Press. p. 430. Madison wanted to clarify that the courts would not take a free-floating power to declare unconstitutional whatever police that was passed; rather, the courts would be able to rule on constitutionality of laws only when those laws were properly presented to them in the context of a court instance that came before them. Encounter Burr, Charles, "Unconstitutional Laws and the Federal Judicial Power", threescore U. Pennsylvania Law Review 624, 630 (1912). No modify in the linguistic communication was made in response to Madison's annotate.
^ See Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary 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 Land Conventions on the Adoption of the Federal Constitution. Vol. 2. Philadelphia: Lippincott. p. 196.
^ See 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 Court Economic Review 115, 138 (2004).
^ Hamilton, Alexander. Federalist No. 78 (June fourteen, 1788). Come across likewise Federalist No. 81, which says: "[T]he Constitution ought to be the standard of construction for the laws, and ... wherever there is an evident opposition, the laws ought to requite place to the Constitution." Federalist No. 81 (June 28, 1788)
^ Federalist No. lxxx (June 21, 1788)
^ Federalist No. 82 (July 2, 1788)
^ "The Problem of Judicial Review – Teaching American History". Archived from the original on 2011-06-xxx. Retrieved 2011-05-11 .
^ Treanor, William Michael (2005). "Judicial Review before "Marbury"". Stanford Law Review. 58 (ii): 455–562. ISSN 0038-9765. JSTOR 40040272.
^ Treanor, "Judicial Review Before Marbury", 58 Stanford Constabulary Review, p. 458.
^ Five of the six Supreme Courtroom justices at that time had sat as circuit judges in the 3 circuit court cases that were appealed. All five of them had constitute the statute unconstitutional in their chapters as circuit judges.
^ There was no official written report of the case. The case is described in a note at the finish of the Supreme Court's determination in Us v. Ferreira, 54 U.South. (xiii How.) 40 (1851).
^ Professor Jack Rakove wrote: "Hylton v. U.s. was manifestly a instance of judicial review of the constitutionality of legislation, in an surface area of governance and public policy far more sensitive than that exposed by Marbury, and it was a case whose implications observers seemed to grasp." Come across Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Law Review at 1039–41.
^ Justice Chase's stance stated: "[I]t is unnecessary, at this fourth dimension, for me to determine, whether this court, constitutionally possesses the power to declare an human activity of congress void, on the ground of its being made contrary to, and in violation of, the constitution."
^ Run across Treanor, "Judicial Review Before Marbury", 58 Stanford Police force Review, p. 547.
^ Chase's statement nearly decisions by judges in the circuits referred to Hayburn's Instance.
^ Vii 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. 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 Bailiwick of jersey). Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244. . The other four states took no action.
^ Elliot, Jonathan (1907) [1836]. "Answers of the Several State Legislatures: State of Vermont". Debates in the Several Country Conventions on the Adoption of the Federal Constitution. Vol. 4 (expanded 2nd ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-9. . The other states taking the position that the constitutionality of federal laws is a question for the federal courts, not the states, were New York, Massachusetts, Rhode Island, New Hampshire, and Pennsylvania. The Governor of Delaware and a Committee of the Maryland legislature also took this position. The remaining states did not address this upshot. Anderson, Frank Maloy (1899). "Gimmicky Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244.
^ For a more detailed description of the case, see Marbury 5. Madison.
^ At that place were several not-constitutional 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.
^ Article III 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 have appellate jurisdiction."
^ Marbury, five U.South. at 175–176.
^ Marbury, 5 U.Southward., pp. 176–177.
^ Marbury, 5 U.Southward., pp. 177–178.
^ Marbury, 5 U.South., pp. 178–180.
^ Bickel, Alexander (1962). The Least Unsafe Co-operative: The Supreme Court at the Bar of Politics . Indianapolis: Bobbs-Merrill. p. 1. ISBN9780300032994.
^ Treanor, "Judicial Review Earlier Marbury", 58 Stanford Law Review at 555. Run into likewise Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police force Review at 1035–41.
^ Laura Langer, Judicial Review in Land Supreme Courts: A Comparative Written report (Albany: State Academy of New York Press, 2002), p. iv
^ ^a ^b Run across Menez, Joseph et al., Summaries of Leading Cases on the Constitution, page 125 (2004).
^ The Supreme Court subsequently decided that a number of other cases finding country statutes unconstitutional. See, for example, Sturges v. Crowninshield, 17 U.Due south. (4 Wheat.) 122 (1819), McCulloch v. Maryland, 17 U.South. (4 Wheat.) 316 (1819), and Gibbons five. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
^ See Niggling 5. Barreme, 6 U.S. (2 Cranch) 170 (1804) (the "Flying Fish example").
^ The Supreme Court and the Constitution, Charles A. Beard, pp. lxx-71
^ Judicial Review and Non-enforcement at the Founding, University of Pennsylvania, p. 496
^ University of Pennsylvania Law Review and American Police force Register
^ Corwin on the Constitution, Edward Samuel Corwin
^ Hamilton, Alexander. Federalist #78 (June 14, 1788).
^ Yates, Robert (writing as "Brutus"). Anti-Federalist Papers(31 Jan 1788) Archived 17 August 2007 at the Wayback Auto.
^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820).
^ Lincoln, Abraham. First Countdown Address Archived 2007-08-17 at the Wayback Car (March 4, 1861).
^ See West.W. Crosskey, Politics and the Constitution in the History of the United states (Chicago: 1953), chs. 27–29, with which compare Hart, Book Review, 67 Harv. 50. Rev. 1456 (1954). A brief review of the debate on the subject area is Westin, "Introduction: Charles Beard and American Debate over Judicial Review, 1790–1961", in: C. Beard, The Supreme Courtroom and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), one–34, and bibliography at 133–149. See more than 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 Lexicon". Merriam-Webster . Retrieved 8 May 2013.
^ "Article iii, Section 2, Clause ii: Brutus, no. 14".
^ Ogden v. Saunders, 25 U.Due south. 213 (1827).
^ New York State Bd. of Elections v. Lopez Torres, 552 U.S. ___, ___ (2008) (Stevens, J., concurring).
^ Ashwander 5. Tennessee Valley Authority, 297 U.S. 288, 346–9 (1936) (Brandeis, concurring) (citing cases)
^ Schwartz, Bernard. A History of the Supreme Court, page 141 (Oxford University Press United states 1995).
^ McPherson, Edward. A political manual for 1868, pages 350–351 (Philp & Solomons 1868).
^ Goldstone, Lawrence. Inherently Unequal: The Betrayal of Equal Rights past the Supreme Courtroom, 1865–1903, pages 55–56 (Bloomsbury Publishing United states of america 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 Automobile", 78 Indiana Law Journal 73 (2003).
^ Nackenoff, Carol. "Constitutional Reforms to Raise Democratic Participation and Deliberation: Non All Clearly Trigger the Article V Amendment Procedure Archived 2012-03-xix at the Wayback Machine", 67 Maryland Law Review 62, 65 (2007).
^ 403 U.S. 388 (1971).