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Which of the Following Is the Best Example of Judicial Review?

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Ability of a court in the United states to examine laws to determine if information technology contradicts current laws

In the United States, judicial review is the legal power of a court to make up one's mind if a statute, treaty, or authoritative regulation contradicts or violates the provisions of existing constabulary, a State Constitution, or ultimately the United States Constitution. While the U.Southward. Constitution does not explicitly define the power of judicial review, the authority for judicial review in the United States has been inferred from the construction, provisions, and history of the Constitution.[1]

2 landmark decisions by the U.S. Supreme Court served to confirm the inferred ramble authority for judicial review in the United States. In 1796, Hylton v. Usa was the offset case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794 which imposed a "carriage tax".[2] The Court performed judicial review of the plaintiff's claim that the carriage taxation was unconstitutional. Afterward review, the Supreme Court decided the Carriage Act was constitutional. In 1803, Marbury v. Madison [3] was the first Supreme Court case where the Court asserted its authority to strike downward a law as unconstitutional. At the end of his opinion in this decision,[4] Chief Justice John Marshall maintained that the Supreme Courtroom's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution equally instructed in Commodity Half dozen of the Constitution.

Equally of 2014[update], the Usa Supreme Courtroom has held 176 Acts of the U.S. Congress unconstitutional.[5] In the period 1960–2019, the Supreme Court has held 483 laws unconstitutional in whole or in part.[six]

Judicial review before the Constitution [edit]

If the whole legislature, an event to be deprecated, should attempt to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the state, will run into the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, hither is the limit of your authority; and, hither, shall you get, but no further.

—George Wythe in Commonwealth v. Caton

But 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 society. These sometimes extend no farther than to the injury of particular citizens' private rights, by unjust and fractional laws. Here as well the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. Information technology non only serves to moderate the immediate mischiefs of those which may accept been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a style compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than just few may be enlightened of.

—Alexander Hamilton in Federalist No. 78

Before the Ramble Convention in 1787, the power of judicial review had been exercised in a number of states. In the years from 1776 to 1787, country courts in at to the lowest degree vii of the xiii states had engaged in judicial review and had invalidated land statutes considering they violated the state constitution or other higher police force.[7] The first American decision to recognize the principle of judicial review was Bayard v. Singleton,[8] decided in 1787 by the Supreme Courtroom of N Carolina'due south predecessor. [9] The North Carolina court and its counterparts in other states treated state constitutions as statements of governing law to be interpreted and applied by judges.

These courts reasoned that because their country constitution was the primal constabulary of the country, they must use the state constitution rather than an human activity of the legislature that was inconsistent with the country constitution.[ten] These state court cases involving judicial review were reported in the press and produced public discussion and comment.[11] Notable state cases involving judicial review include Commonwealth v. Caton, (Virginia, 1782),[12] [thirteen] Rutgers v. Waddington (New York, 1784), Trevett v. Weeden (Rhode Island, 1786). Scholar Larry Kramer agreed with Justice Iredell that any approximate who enforces an unconstitutional law becomes complicit in the unconstitutionality and that they themselves get lawbreakers.[14]

At to the lowest degree 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 land 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 Constitutional Convention.

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

Provisions of the Constitution [edit]

The text of the Constitution does not comprise a specific reference to the power of judicial review. Rather, the ability to declare laws unconstitutional has been deemed an implied power, derived from Article Three and Commodity VI.[18]

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

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

The Supremacy Clause of Article VI states:

This Constitution, and the Laws of the United States which shall be fabricated in Pursuance thereof; and all Treaties made, or which shall be made, under the Authorisation of the The states, shall be the supreme Law of the State; and the Judges in every Land shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary still. ... [A]ll executive and judicial Officers, both of the United States and of the several States, shall exist bound by Oath or Affidavit, to support this Constitution.

The ability of judicial review has been implied from these provisions based on the post-obit reasoning. Information technology is the inherent duty of the courts to decide the applicable constabulary 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 United States. Federal statutes are the police force of the land merely when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid simply if they are consistent with the Constitution. Any law contrary to the Constitution is void. The federal judicial ability extends to all cases "arising nether this Constitution." As function of their inherent duty to make up one's mind the law, the federal courts take the duty to interpret and apply the Constitution and to decide whether a federal or land statute conflicts with the Constitution. All judges are bound to follow the Constitution. If there is a conflict, the federal courts have a duty to follow the Constitution and to treat the conflicting statute every bit unenforceable. The Supreme Courtroom has final appellate jurisdiction in all cases arising nether the Constitution, so the Supreme Courtroom has the ultimate authorisation to make up one's mind whether statutes are consistent with the Constitution.[xix]

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 equally the Virginia Plan. The Virginia Plan included a "council of revision" that would take examined proposed new federal laws and would have accepted or rejected them, similar to today's presidential veto. The "council 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 encroachment, and the judiciary did not demand a 2d way to negate laws by participating in the council of revision. For example, Elbridge Gerry said federal judges "would have a sufficient check against encroachments on their ain section by their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually set aside laws, as being confronting the constitution. This was done too with full general approbation."[xx] Luther Martin said: "[A]due south to the constitutionality of laws, that point will come up earlier the judges in their official grapheme. In this character they have a negative on the laws. Join them with the executive in the revision, and they will 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 law-making procedure through participation on the quango of revision, their objectivity as judges in later deciding on the constitutionality of those laws could be 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 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 be considered by the Judges every bit null & void."[24] George Mason said that federal judges "could declare an unconstitutional law void."[25] However, Mason added that the power of judicial review is non a full general ability to strike downwards all laws, but only ones that are unconstitutional:[25]

Simply with regard to every law nonetheless unjust, oppressive or pernicious, which did not come up plainly under this description, they would be nether the necessity as Judges to give it a free form.

In all, fifteen 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 idea that the federal courts would have the power of judicial review.[26] Some delegates to the Ramble Convention did not speak about judicial review during the Convention, just did speak about it before or afterwards the Convention. Including these additional comments by Convention delegates, scholars take found that twenty-five or xx-six of the Convention delegates made comments indicating support for judicial review, while iii to six delegates opposed judicial review.[27] One 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 organisation 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] [thirty]

State ratification debates [edit]

Judicial review was discussed in at to the lowest degree 7 of the thirteen state ratifying conventions, and was mentioned by almost 2 dozen delegates. In each of these conventions, delegates asserted that the proposed Constitution would permit the courts to practice judicial review. In that location is no tape of any delegate to a country ratifying convention who indicated that the federal courts would not have the power of judicial review.[31]

For case, James Wilson asserted in the Pennsylvania ratifying convention that federal judges would exercise judicial review: "If a police force should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being divers, will declare such law to exist zilch and void. For the power of the Constitution predominates. Annihilation, therefore, that shall be enacted by Congress opposite thereto will not have the force of law."[32]

In the Connecticut ratifying convention, Oliver Ellsworth likewise described judicial review as a feature of the Constitution: "This Constitution defines the extent of the powers of the general government. If the general legislature should at any fourth dimension overleap their limits, the judicial section is a constitutional cheque. If the U.s. go beyond their powers, if they make a law which the Constitution does non authorize, information technology is void; and the judicial ability, the national judges, who, to secure their impartiality, are to be fabricated contained, 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 xiii states asserted that under the Constitution, the federal courts would have the power of judicial review. There is no tape of any opponent to the Constitution who claimed that the Constitution did not involve a power of judicial review.[34]

Subsequently reviewing the statements made by the founders, one scholar ended: "The prove from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the term 'judicial ability' [in Article III] 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, fabricated 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 clearly explained that the federal courts would accept the ability of judicial review. Hamilton stated that under the Constitution, the federal judiciary would have the power to declare laws unconstitutional. Hamilton asserted that this was appropriate because information technology would protect the people against abuse of ability past Congress:

[T]he courts were designed to be an intermediate body between the people and the legislature, in social club, among other things, to keep 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 be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well equally the significant of whatsoever particular human activity proceeding from the legislative trunk. If there should happen to be an irreconcilable variance between the 2, that which has the superior obligation and validity ought, of course, to exist 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 by any 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, alleged in the Constitution, the judges ought to exist 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 adhere to the latter and disregard the former. ...

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

In Federalist No. fourscore, Hamilton rejected the idea that the power to decide the constitutionality of an act of Congress should prevarication with each of the states: "The mere necessity of uniformity in the estimation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the aforementioned causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed."[37] Consistent with the need for uniformity in estimation of the Constitution, Hamilton explained in Federalist No. 82 that the Supreme Court has say-so to hear appeals from the country courts in cases relating to the Constitution.[38]

The arguments confronting ratification by the Anti-Federalists agreed that the federal courts would take 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 volition control the legislature, for the supreme court are authorised in the final resort, to make up one's mind what is the extent of the powers of the Congress. They are to give the constitution an explanation, and at that place is no power above them to set aside their judgment. ... The supreme court then accept 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 organisation 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 it void.[39]

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

Judiciary Human activity of 1789 [edit]

The first 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 land courts when the state court decided that a federal statute was invalid, or when the country court upheld a country statute against a merits that the state statute was repugnant to the Constitution. This provision gave the Supreme Court the power to review state 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 conclusion in Marbury v. Madison in 1803, judicial review was employed in both the federal and state courts. A detailed analysis has identified thirty-one state or federal cases during this time in which statutes were struck downward as unconstitutional, and seven boosted cases in which statutes were upheld but at to the lowest degree one approximate ended the statute was unconstitutional.[40] The writer of this assay, Professor William Treanor, ended: "The sheer number of these decisions not only belies the notion that the establishment of judicial review was created past Chief Justice Marshall in Marbury, information technology also reflects widespread acceptance and awarding of the doctrine."[41]

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

In Hayburn'due south Instance, 2 U.Southward. (ii Dall.) 408 (1792), federal circuit courts held an act of Congress unconstitutional for the first time. 3 federal excursion courts establish that Congress had violated the Constitution past passing an human activity requiring circuit court judges to decide pension applications, subject to the review of the Secretary of War. These circuit courts found that this was not a proper judicial function under Article Iii. These three decisions were appealed to the Supreme Courtroom, only 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 five. Yale Todd,[43] the Supreme Court reversed a pension that was awarded under the same alimony act that had been at issue in Hayburn's Instance. The Court manifestly decided that the deed designating judges to decide pensions was not ramble because this was not a proper judicial function. This apparently was the first Supreme Court case to discover an act of Congress unconstitutional. However, at that place was not an official report of the instance and information technology was not used equally a precedent.

Hylton v. United States, 3 U.Due south. (3 Dall.) 171 (1796), was the first instance decided by the Supreme Court that involved a challenge to the constitutionality of an human action of Congress. It was argued that a federal tax on carriages violated the constitutional provision regarding "direct" taxes. The Supreme Court upheld the tax, finding it was constitutional. Although the Supreme Court did non strike downward the human activity in question, the Courtroom engaged in the process of judicial review by because the constitutionality of the tax. The case was widely publicized at the time, and observers understood that the Court was testing the constitutionality of an deed of Congress.[44] Because it constitute the statute valid, the Courtroom did not have to assert that it had the power to declare a statute unconstitutional.[45]

In Ware 5. Hylton, 3 U.S. (iii Dall.) 199 (1796), the Supreme Court for the first time struck down a state statute. The Court reviewed a Virginia statute regarding pre-Revolutionary state of war debts and plant that information technology was inconsistent with the peace treaty between the U.s.a. and Great Britain. Relying on the Supremacy Clause, the Court found the Virginia statute invalid.

In Hollingsworth five. Virginia, 3 U.South. (iii Dall.) 378 (1798), the Supreme Court constitute that it did not take jurisdiction to hear the instance because of the jurisdiction limitations of the Eleventh Subpoena. This holding could be viewed as an implicit finding that the Judiciary Act of 1789, which would have allowed the Court jurisdiction, was unconstitutional in part. However, the Courtroom did non provide any reasoning for its conclusion and did not say that it was finding the statute unconstitutional.[46]

In Cooper v. Telfair, iv U.S. (iv Dall.) xiv (1800), Justice Chase stated: "It is indeed a full general opinion—it is expressly admitted by all this bar and some of the judges take, individually in the circuits decided, that the Supreme Courtroom tin can declare an human action of Congress to be unconstitutional, and therefore invalid, but there is no arbitrament 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 the states take the power to make up one's mind whether acts of Congress are constitutional. In response, 10 states passed their own resolutions disapproving the Kentucky and Virginia Resolutions.[48] Vi of these states took the position that the power to declare acts of Congress unconstitutional lies in the federal courts, non in the land legislatures. For example, Vermont's resolution stated: "It belongs not to state legislatures to decide on the constitutionality of laws made past the general government; this ability beingness exclusively vested in the judiciary courts of the Union."[49]

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

Marbury v. Madison [edit]

Marbury was the first Supreme Court conclusion to strike downwards an human activity of Congress as unconstitutional. Primary 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 committee appointing him as a justice of the peace. Marbury filed his instance direct in the Supreme Court, invoking the Courtroom's "original jurisdiction", rather than filing in a lower court.[fifty]

The constitutional event involved the question of whether the Supreme Court had jurisdiction to hear the case.[51] The Judiciary Act of 1789 gave the Supreme Court original jurisdiction in cases involving writs of mandamus. Then, under the Judiciary Act, the Supreme Court would have had jurisdiction to hear Marbury's example. Still, the Constitution describes the cases in which the Supreme Court has original jurisdiction, and does not include mandamus cases.[52] The Judiciary Act therefore attempted to give the Supreme Courtroom jurisdiction that was not "warranted by the Constitution."[53]

Marshall'southward stance stated that in the Constitution, the people established a government of limited powers: "The powers of the Legislature are defined and express; and that those limits may non be mistaken or forgotten, the Constitution is written." The limits established in the Constitution would exist meaningless "if these limits may at any fourth dimension be passed by those intended to be restrained." Marshall observed that the Constitution is "the primal and paramount constabulary of the nation", and that information technology cannot be contradistinct by an ordinary act of the legislature. Therefore, "an human action of the Legislature repugnant to the Constitution is void."[54]

Marshall then discussed the role of the courts, which is at the eye of the doctrine of judicial review. It would exist an "absurdity", said Marshall, to require the courts to utilize a law that is void. Rather, it is the inherent duty of the courts to interpret and utilise the Constitution, and to determine whether there is a disharmonize between a statute and the Constitution:

Information technology is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the dominion to particular cases must, of necessity, expound and interpret that dominion. If two laws conflict with each other, the Courts must decide on the operation of each.

And then, if a law be in opposition to the Constitution, if both the police force and the Constitution utilise to a particular case, and so that the Court must either make up one's mind that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these alien rules governs the example. This is of the very essence of judicial duty.

If, so, 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 deed, must govern the case to which they both employ. ...[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 utilise it, and that they have the duty to refuse to enforce whatsoever laws that are opposite to the Constitution. Specifically, Article III provides that the federal judicial power "is extended to all cases arising nether the Constitution." Commodity VI requires judges to have an adjuration "to back up this Constitution." Article VI too states that merely laws "fabricated in pursuance of the Constitution" are the police of the country. Marshall ended: "Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to exist essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, every bit well as other departments, are bound by that instrument."[56]

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

[T]he institution of the judiciary needed to be summoned up out of the ramble vapors, shaped, and maintained. And the Great Primary Justice, John Marshall—non single-handed, but first and foremost—was there to practise it and did. If any social procedure can exist said to accept been 'done' at a given time, and by a given act, it is Marshall'south achievement. The fourth dimension was 1803; the act was the conclusion in the case of Marbury v. Madison.[57]

Other scholars view this as an overstatement, and argue 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 by the Constitution's framers, was explained in the Federalist Papers and in the ratification debates, and was used by both state and federal courts for more than than twenty years earlier Marbury. Including the Supreme Court in Hylton v. United States. 1 scholar concluded: "[B]efore Marbury, judicial review had gained wide back up."[58]

Judicial review after Marbury [edit]

Marbury was the point at which the Supreme Court adopted a monitoring office over government actions.[59] After the Court exercised its power of judicial review in Marbury, information technology avoided striking downwards a federal statute during the side by side fifty years. The court would non practise then once again until Dred Scott 5. Sandford, threescore U.S. (19 How.) 393 (1857).[60]

However, the Supreme Courtroom did exercise judicial review in other contexts. In particular, the Court struck downwardly a number of land statutes that were opposite to the Constitution. The offset case in which the Supreme Court struck down a country statute every bit unconstitutional was Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).[61]

In a few cases, land courts took the position that their judgments were final and were not subject to review past the Supreme Court. They argued that the Constitution did not give the Supreme Court the dominance to review country court decisions. They asserted that the Judiciary Human activity of 1789, which provided that the Supreme Courtroom could hear certain appeals from country courts, was unconstitutional. In upshot, these state courts were asserting that the principle of judicial review did not extend to allow federal review of land courtroom decisions. This would have left the states free to adopt their own interpretations of the Constitution.

The Supreme Court rejected this argument. In Martin v. Hunter'due south Lessee, 14 U.South. (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 land or federal courts. The Court issued some other decision to the same event in the context of a criminal case, Cohens v. Virginia, xix U.S. (half-dozen Wheat.) 264 (1821). It is now well established that the Supreme Court may review decisions of land courts that involve federal police.

The Supreme Court as well has reviewed actions of the federal executive co-operative to determine whether those deportment were authorized by acts of Congress or were beyond the dominance granted by Congress.[62]

Judicial review is now well established as a cornerstone of ramble police force. 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 Courtroom'due south June 2017 Matal five. Tam and 2019 Iancu five. Brunetti decisions hitting down a portion of July 1946's Lanham Act as they infringe on Freedom of Spoken language.

Criticism of judicial review [edit]

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

One of the first critics of judicial review was Richard Dobbs Spaight, a signer of the Constitution. In a correspondence with Supreme Court Justice James Iredell, Spaight wrote of his disapproval of the doctrine:[63] [64] [65]

I exercise not pretend to vindicate the law, which has been the discipline of controversy: it is immaterial what law they have declared void; it is their usurpation of the potency to do information technology, that I complain of, equally I practice nigh positively deny that they have whatever such power; nor can they find any thing in the Constitution, either straight or impliedly, that will support them, or requite them any colour of right to exercise that authority.[66]

At the Constitutional Convention, neither proponents nor opponents of judicial review disputed that any government based on a written constitution requires some mechanism to prevent laws that violate that constitution from being fabricated and enforced. Otherwise, the document would be meaningless, and the legislature, with the ability to enact any laws whatsoever, 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 brand determinations regarding constitutionality of statutes. Hamilton addressed this in Federalist No. 78, in which he explained the reasons that the federal judiciary has the part of reviewing the constitutionality of statutes:

If it be said that the legislative body are themselves the constitutional judges of their ain powers, and that the construction they put upon them is conclusive upon the other departments, it may exist answered, that this cannot be the natural presumption, where it is not to be nerveless from any 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. Information technology is far more rational to suppose, that the courts were designed to exist an intermediate body between the people and the legislature, in society, among other things, to go along the latter within the limits assigned to their authority.[67]

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

[I]n their decisions they volition non 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 courtroom, whatever they may be, will have the forcefulness of law; because there is no power provided in the constitution, that tin can correct 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 seem ... to consider the judges equally the ultimate arbiters of all ramble questions; a very unsafe doctrine indeed, and ane which would place usa nether the despotism of an oligarchy. Our judges are as honest as other men, and not more then. They accept, with others, the same passions for party, for ability, and the privilege of their corps. ... Their power [is] the more unsafe equally they are in office for life, and not responsible, every bit the other functionaries are, to the constituent command. The Constitution has erected no such single tribunal, knowing that to whatsoever hands confided, with the corruptions of time and political 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 same discipline, during his kickoff inaugural address:

[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 Courtroom, the instant they are fabricated in ordinary litigation betwixt parties in personal actions the people volition have ceased to be their own rulers, having to that extent practically resigned their Regime into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to plow their decisions to political purposes.[70]

Lincoln was alluding here to the case of Dred Scott 5. Sandford, in which the Court had struck down a federal statute for the first time since Marbury v. Madison.[60]

It has been argued that the judiciary is not the simply branch of government that may translate the meaning of the Constitution.[ who? ] Commodity VI requires federal and state officeholders to exist bound "by Adjuration or Affirmation, to back up 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 past 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 usa (or to the people) those powers not expressly delegated to the federal regime. The 2d argument is that the states lonely have the power to ratify changes to the "supreme police force" (the U.Southward. Constitution), and each country's agreement of the language of the amendment therefore becomes germane to its implementation and consequence, making information technology necessary that the states play some role in interpreting its meaning. Nether this theory, allowing but federal courts to definitively comport judicial review of federal law allows the national authorities to translate its own restrictions as it sees fit, with no meaningful input from the ratifying, that is, validating ability.

Standard of review [edit]

In the United States, unconstitutionality is the only ground for a federal court to strike down a federal statute. Justice Washington, speaking for the Marshall Court, put it this way in an 1829 instance:

We intend to decide no more than than that the statute objected to in this instance is not repugnant to the Constitution of the United States, and that unless it exist so, this Court has no authority, under the 25th section of the judiciary human activity, 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 downwardly the state statute as an unstatutable[73] violation of the Supremacy Clause. Only a federal courtroom may non strike downwards a statute absent a violation of federal law or of the federal Constitution.

Moreover, a suspicion or possibility of unconstitutionality is not enough 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 down federal statutes absent-minded a conflict with the Constitution. For example, Robert Yates, writing under 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 but be struck down 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 Bricklayer explained during the ramble convention that judges "could declare an unconstitutional constabulary void. Simply with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a gratis form."[25]

For a number of years, the courts were relatively deferential to Congress. Justice Washington put information technology this way, in an 1827 example: "Information technology is but a decent respect to the wisdom, integrity, and patriotism of the legislative trunk, past which whatsoever law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt."[75]

Although judges unremarkably adhered to this principle that a statute could only be accounted unconstitutional in example 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 U.s. 5. Carolene Products Co., 304 U.S. 144 (1938), which suggested that statutes may be subjected to closer scrutiny in certain types of cases. Nevertheless, the federal courts have not departed from the principle that courts may just strike down statutes for unconstitutionality.

Of course, the practical implication of this principle is that a court cannot strike down a statute, fifty-fifty if it recognizes that the statute is obviously poorly drafted, irrational, or arises from legislators' corrupt motives, unless the flaw in the statute rises to the level of a articulate constitutional violation. In 2008, Justice John Paul Stevens reaffirmed this bespeak in a concurring opinion: "[A]s I call back my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does non prohibit legislatures from enacting stupid laws.'"[76]

In the federal arrangement, courts may but determine 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 ways that courts sometimes practice non practise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court, legislation may exist referred in sure circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).

The U.Southward. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the instance before information technology could be decided on other grounds, an mental attitude and exercise exemplifying judicial restraint. Justice Brandeis framed information technology thus (citations omitted):[77]

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

  1. The Court will not laissez passer upon the constitutionality of legislation in a friendly, not-adversary, proceeding, failing considering to determine such questions is legitimate only in the concluding resort, and as a necessity in the determination of existent, earnest, and vital controversy betwixt individuals. Information technology never was the thought that, by ways of a friendly suit, a party beaten in the legislature could transfer to the courts an enquiry as to the constitutionality of the legislative human activity.
  2. The Court will non anticipate a question of constitutional police force in advance of the necessity of deciding it. Information technology is not the habit of the courtroom to decide questions of a ramble nature unless absolutely necessary to a determination of the instance.
  3. The Courtroom will non formulate a rule of constitutional law broader than required past the precise facts information technology applies to.
  4. The Court will non pass upon a constitutional question although properly presented past the tape, if there is also present some other basis upon which the case may exist disposed of ... If a instance can exist decided on either of two grounds, one involving a constitutional question, the other a question of statutory structure or full general law, the Court volition decide simply the latter.
  5. The Court volition not laissez passer upon the validity of a statute upon complaint of one who fails to show that he is injured by its functioning.
  6. The Court will non pass upon the constitutionality of a statute at the example of i who has availed himself of its benefits.
  7. When the validity of an act of the Congress is fatigued in question, and even if a serious uncertainty of constitutionality is raised, it is a cardinal principle that this Courtroom will first define whether a construction of the statute is fairly possible by which the question may be avoided.

Laws limiting judicial review [edit]

Although the Supreme Courtroom continues to review the constitutionality of statutes, Congress and united states of america retain some power to influence what cases come before the Court. For example, the Constitution at Article III, Section two, gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction. The Supreme Court has historically acknowledged that its appellate jurisdiction is defined past Congress, and thus Congress may have 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 ii-thirds bulk of the Court in order to deem any Deed of Congress unconstitutional.[78] The beak was approved by the Business firm, 116 to 39.[79] That measure died in the Senate, partly considering the neb was unclear about how the beak'south own constitutionality would be decided.[80]

Many other bills have been proposed in Congress that would require a supermajority in order for the justices to exercise judicial review.[81] During the early years of the United states of america, a ii-thirds majority was necessary for the Supreme Court to exercise judicial review; considering the Court then consisted of six members, a uncomplicated 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 society to practise judicial review: Nebraska (5 out of seven justices) and North Dakota (four out of five justices).[81]

Authoritative review [edit]

The procedure for judicial review of federal authoritative regulation in the U.s.a. is set forth by the Administrative Process Act although the courts take ruled such every bit 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 procedure exists.

Notes [edit]

  1. ^ "The Establishment of Judicial Review". Findlaw.
  2. ^ Congress, United States. "Us Statutes at Large, Volume 1" – via Wikisource.
  3. ^ Marbury v. Madison, v U.s. (i Cranch) 137 (1803).
  4. ^ "Marbury v. Madison – John Marshall – 1803 – AMDOCS: Documents for the Study of American History".
  5. ^ See Congressional Research Services' The Constitution of the United States, Analysis And Interpretation, 2013 Supplement, pp. 49–50.
  6. ^ "Tabular array of Laws Held Unconstitutional in Whole or in Office by the Supreme Court". U.South. Congress. Retrieved February 22, 2021.
  7. ^ Prakash, Saikrishna B.; Yoo, John C. (2003). "The Origins of Judicial Review". The University of Chicago Law Review. seventy (3): 887–982. doi:10.2307/1600662. ISSN 0041-9494. JSTOR 1600662.
  8. ^ Bayard v. Singleton , ane Northward.C. 5 (N.C. 1787).
  9. ^ Brown, Andrew. "Bayard v. Singleton: Due north Carolina every bit the Pioneer of Judicial Review". North Carolina Institute of Constitutional Law. Archived from the original on 2019-08-xvi. Retrieved 2019-08-16 .
  10. ^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Police Review, pp. 933–934.
  11. ^ Prakash and Yoo, "The Origins of Judicial Review", lxx U. of Chicago Law Review, p. 936.
  12. ^ The Judicial Branch of Land Authorities: People, Process, and Politics
  13. ^ John Marshall: Definer of a Nation
  14. ^ The People Themselves - Popular Constitutionalism and Judicial Review, Larry Kramer
  15. ^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review p. 939.
  16. ^ For instance, James Madison referred to "the judges who refused to execute an unconstitutional police force" in a Rhode Island case. 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 bated laws, as being confronting the constitution." Farrand, The Records of the Federal Convention of 1787, vol. 1, p. 97.
  17. ^ Corwin, Edward S. (1929). "The "Higher Law" Background of American Constitutional Law". Harvard Law Review. Harvard Constabulary Review Association. 42 (iii). doi:10.2307/1330694. ISSN 0017-811X. JSTOR 1330694.
  18. ^ While the Constitution does not explicitly authorize judicial review, it also does not explicitly prohibit it, as did the Virginia Constitution of 1776. That Virginia Constitution said: "All ability of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised." Virginia Constitution of 1776 Archived 2008-06-04 at the Wayback Automobile via Avalon Project at Yale Law Schoolhouse.
  19. ^ Come across Marbury 5. Madison, five U.S. at 175–78.
  20. ^ Run across Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. ane. New Haven: Yale University Press. p. 97.
  21. ^ Farrand, The Records of the Federal Convention of 1787, vol. ii, p. 76. Nathaniel Gorham also made comments along these lines. Encounter Rakove, Jack N. (1997). "The Origins of Judicial Review: A Plea for New Contexts". Stanford Police Review. 49 (5): 1031–64. doi:10.2307/1229247. ISSN 0038-9765. JSTOR 1229247.
  22. ^ Delegates making these comments included Rufus King, Caleb Strong, Nathaniel Gorham, and John Rutledge. Encounter Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Law Review at 1058.
  23. ^ The council of revision proposed in the Virginia Plan ultimately morphed into the Presidential veto. In its final form, the executive alone would do the veto, without participation by the federal judiciary.
  24. ^ Ibid., p. 93. Delegates approving of judicial review also included James Wilson and Gouverneur Morris, amongst others. See Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review at 941–43.
  25. ^ a b c Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Oasis: Yale University Press. p. 78.
  26. ^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary Review, p. 952. The two delegates who disapproved judicial review, John Dickinson and John Mercer, did not advise a provision prohibiting judicial review. During the state ratification conventions, they acknowledged that under the final Constitution, the courts would have the power of judicial review. Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Police Review, p. 943.
  27. ^ Raoul Berger establish that 20-6 Convention delegates supported Constitution review, with six opposed. Berger, Raoul (1969). Congress v. The Supreme Court . Harvard Academy Press. p. 104. Charles Beard counted xx-five delegates in favor of judicial review and three against. Beard, Charles (1962) [1912]. The Supreme Courtroom and the Constitution . Prentice Hall. p. 69.
  28. ^ Melvin, Frank, "The Judicial Bulwark of the Constitution", viii American Political Scientific discipline Review 167, 185–195 (1914).
  29. ^ See Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Law Review at pp. 931–32.
  30. ^ James Madison at one signal said that the courts' power of judicial review should be limited to cases of a judiciary nature: "He doubted whether information technology was not going as well far to extend the jurisdiction of the Court generally to cases arising nether the Constitution and whether it ought non 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 Printing. p. 430. Madison wanted to clarify that the courts would non accept a costless-floating power to declare unconstitutional whatever law that was passed; rather, the courts would exist able to dominion on constitutionality of laws only when those laws were properly presented to them in the context of a court instance that came before them. See Burr, Charles, "Unconstitutional Laws and the Federal Judicial Ability", lx U. Pennsylvania Law Review 624, 630 (1912). No change in the language was made in response to Madison's annotate.
  31. ^ See Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review at p. 965.
  32. ^ Elliot, Jonathan (1863) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 2. Philadelphia: Lippincott. p. 489.
  33. ^ Elliot, Jonathan (1863) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 2. Philadelphia: Lippincott. p. 196.
  34. ^ Come across Prakash and Yoo, "The Origins of Judicial Review", lxx U. of Chicago Law Review at pp. 973–75.
  35. ^ Barnett, Randy, "The Original Pregnant of Judicial Ability", 12 Supreme Court Economical Review 115, 138 (2004).
  36. ^ Hamilton, Alexander. Federalist No. 78 (June 14, 1788). See also Federalist No. 81, which says: "[T]he Constitution ought to be the standard of construction for the laws, and ... wherever there is an evident opposition, the laws ought to requite place to the Constitution." Federalist No. 81 (June 28, 1788)
  37. ^ Federalist No. 80 (June 21, 1788)
  38. ^ Federalist No. 82 (July 2, 1788)
  39. ^ "The Trouble of Judicial Review – Education American History". Archived from the original on 2011-06-xxx. Retrieved 2011-05-11 .
  40. ^ Treanor, William Michael (2005). "Judicial Review before "Marbury"". Stanford Law Review. 58 (two): 455–562. ISSN 0038-9765. JSTOR 40040272.
  41. ^ Treanor, "Judicial Review Before Marbury", 58 Stanford Police Review, p. 458.
  42. ^ Five of the six Supreme Court justices at that time had sat as circuit judges in the 3 excursion court cases that were appealed. All five of them had plant the statute unconstitutional in their capacity every bit circuit judges.
  43. ^ There was no official study of the instance. The case is described in a note at the terminate of the Supreme Court's decision in United states of america v. Ferreira, 54 U.S. (13 How.) 40 (1851).
  44. ^ Professor Jack Rakove wrote: "Hylton five. 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 case 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.
  45. ^ Justice Chase's opinion stated: "[I]t is unnecessary, at this fourth dimension, for me to make up one's mind, whether this court, constitutionally possesses the power to declare an human action of congress void, on the ground of its existence made opposite to, and in violation of, the constitution."
  46. ^ Run into Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review, p. 547.
  47. ^ Chase'due south statement about decisions by judges in the circuits referred to Hayburn'due south Case.
  48. ^ Vii states formally rejected the Kentucky and Virginia resolutions and transmitted their rejections to Kentucky and Virginia (Delaware, Massachusetts, New York, Connecticut, Rhode Island, New Hampshire, and Vermont). See Elliot, Jonathan (1907) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 4 (expanded second ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-9. . 3 states passed resolutions expressing disapproval just did not transmit formal responses to Kentucky and Virginia (Maryland, Pennsylvania, and New 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 activeness.
  49. ^ Elliot, Jonathan (1907) [1836]. "Answers of the Several Country Legislatures: State of Vermont". Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 4 (expanded 2d ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-ix. . 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 consequence. Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244.
  50. ^ For a more detailed clarification of the case, see Marbury 5. Madison.
  51. ^ There were several non-constitutional issues, including whether Marbury was entitled to the commission and whether a writ of mandamus was the appropriate remedy. The Courtroom'south opinion dealt with those issues offset, finding that Marbury was entitled to the commission and that mandamus was a proper remedy. See Marbury v. Madison.
  52. ^ Article III of the Constitution says: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a country shall exist party, the Supreme Courtroom shall have original jurisdiction. In all the other cases ... the Supreme Courtroom shall accept appellate jurisdiction."
  53. ^ Marbury, 5 U.Southward. at 175–176.
  54. ^ Marbury, 5 U.S., pp. 176–177.
  55. ^ Marbury, 5 U.S., pp. 177–178.
  56. ^ Marbury, v U.Due south., pp. 178–180.
  57. ^ Bickel, Alexander (1962). The Least Dangerous Co-operative: The Supreme Court at the Bar of Politics . Indianapolis: Bobbs-Merrill. p. 1. ISBN9780300032994.
  58. ^ Treanor, "Judicial Review Earlier Marbury", 58 Stanford Police force Review at 555. Run into too Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Law Review at 1035–41.
  59. ^ Laura Langer, Judicial Review in Land Supreme Courts: A Comparative Study (Albany: State University of New York Press, 2002), p. 4
  60. ^ a b See Menez, Joseph et al., Summaries of Leading Cases on the Constitution, page 125 (2004).
  61. ^ The Supreme Court subsequently decided that a number of other cases finding land statutes unconstitutional. Meet, for example, Sturges v. Crowninshield, 17 U.Due south. (4 Wheat.) 122 (1819), McCulloch v. Maryland, 17 U.S. (iv Wheat.) 316 (1819), and Gibbons 5. Ogden, 22 U.Due south. (nine Wheat.) 1 (1824).
  62. ^ Encounter Little v. Barreme, vi U.S. (2 Cranch) 170 (1804) (the "Flying Fish case").
  63. ^ The Supreme Court and the Constitution, Charles A. Beard, pp. 70-71
  64. ^ Judicial Review and Non-enforcement at the Founding, University of Pennsylvania, p. 496
  65. ^ University of Pennsylvania Police Review and American Law Register
  66. ^ Corwin on the Constitution, Edward Samuel Corwin
  67. ^ Hamilton, Alexander. Federalist #78 (June xiv, 1788).
  68. ^ Yates, Robert (writing equally "Brutus"). Anti-Federalist Papers(31 Jan 1788) Archived 17 August 2007 at the Wayback Machine.
  69. ^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820).
  70. ^ Lincoln, Abraham. First Countdown Address Archived 2007-08-17 at the Wayback Machine (March 4, 1861).
  71. ^ See W.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. L. Rev. 1456 (1954). A brief review of the contend on the subject is Westin, "Introduction: Charles Beard and American Debate over Judicial Review, 1790–1961", in: C. Beard, The Supreme Court and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), 1–34, and bibliography at 133–149. See more at: http://constitution.findlaw.com/article3/annotation13.html#f576
  72. ^ Satterlee v. Matthewson, 27 U.S. 380 (1829).
  73. ^ "Unstatutable – Definition and More than from the Free Merriam-Webster Dictionary". Merriam-Webster . Retrieved 8 May 2013.
  74. ^ "Article 3, Department two, Clause two: Brutus, no. 14".
  75. ^ Ogden five. Saunders, 25 U.S. 213 (1827).
  76. ^ New York State Bd. of Elections v. Lopez Torres, 552 U.S. ___, ___ (2008) (Stevens, J., concurring).
  77. ^ Ashwander v. Tennessee Valley Authorization, 297 U.Due south. 288, 346–nine (1936) (Brandeis, concurring) (citing cases)
  78. ^ Schwartz, Bernard. A History of the Supreme Court, page 141 (Oxford University Press US 1995).
  79. ^ McPherson, Edward. A political manual for 1868, pages 350–351 (Philp & Solomons 1868).
  80. ^ Goldstone, Lawrence. Inherently Unequal: The Expose of Equal Rights past the Supreme Court, 1865–1903, pages 55–56 (Bloomsbury Publishing USA 2011).
  81. ^ a b Caminker, Evan. "Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons From the By Archived 2012-03-09 at the Wayback Motorcar", 78 Indiana Police force Periodical 73 (2003).
  82. ^ Nackenoff, Carol. "Constitutional Reforms to Enhance Democratic Participation and Deliberation: Not All Clearly Trigger the Commodity V Subpoena Process Archived 2012-03-19 at the Wayback Machine", 67 Maryland Law Review 62, 65 (2007).
  83. ^ 403 U.Due south. 388 (1971).

Further reading [edit]

  • Kramer, Larry D. (2004). The People Themselves. New York: Oxford Academy Printing.
  • Patrick, John J., ed. (2001). "Judicial review". The Oxford guide to the The states authorities . Oxford Academy Press. p. 348. ISBN978-0-19-514273-0.
  • Corwin, Edward S. (1914). "Marbury 5. Madison and the Doctrine of Judicial Review". Michigan Law Review. Michigan Law Review Clan. 12 (seven): 538–72. doi:10.2307/1274986. ISSN 0026-2234. JSTOR 1274986.
  • Wolfe, Christopher (1994). The rise of mod judicial review. Rowman & Littlefield. ISBN978-0-8226-3026-5.
  • Beard, Charles A. (1912). The Supreme Courtroom and the Constitution. New York: Macmillan Visitor.
  • Treanor, William Thousand. "The Example of the Prisoners and the Origins of Judicial Review". University of Pennsylvania Law Review. University of Pennsylvania.

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Source: https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States

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