Judicial Review

Judicial review is the power of courts to determine whether acts of the legislature or the executive are consistent with the Constitution. It is not stated explicitly in the Constitution but has been an established feature of American law since Marbury v. Madison in 1803.

Judicial review is the power that distinguishes American courts from those in most other constitutional systems. A federal judge may, in the course of deciding a case, declare a statute unconstitutional and refuse to apply it. State courts have the same power with respect to state constitutions, and they may apply the federal Constitution as well. The power is not spelled out in the text of the Constitution. Article III speaks of the judicial power and lists the kinds of cases federal courts may hear. The framers debated judicial review at the Constitutional Convention and in the Federalist Papers without resolving it definitively. Alexander Hamilton argued for it in Federalist 78, writing that the Constitution was a "fundamental law" and that judges had a duty to prefer it to ordinary statutes. The principle was settled in practice by Chief Justice John Marshall's decision in Marbury v. Madison in 1803. Marshall reasoned that since the Constitution is the supreme law of the land, and since judges take an oath to support it, they must refuse to enforce laws that conflict with it. The reasoning has held. Judicial review is now exercised constantly by every court in the federal and state systems. Critics of judicial review have arisen in every generation. Thomas Jefferson worried that it made judges into "an oligarchy." Abraham Lincoln warned in his first inaugural that if the Constitution's meaning were finally settled by the Supreme Court, "the people will have ceased to be their own rulers." Progressives in the early twentieth century chafed at the Court's use of judicial review to strike down economic regulation. Conservatives have raised similar concerns about the Court's expansion of rights through substantive due process. The power endures because no better alternative for resolving constitutional disputes has been agreed upon.