Judicial review in the United States

The power of judicial review is held by courts in the United States, which while developing out of British law is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution. The only explicit definition given in the Constitution is in Article III, which states:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…"

The power to strike down laws is not specifically listed, but is an implied power derived from Article III, and Article VI, which declares that the Constitution is the supreme law of the land: no state or federal law is allowed to violate the Constitution. The ultimate court for deciding the constitutionality of federal or state law under the Constitution of the United States is the Supreme Court of the United States. The doctrine of Judicial review was first established as part of Federal law in 1803 in the Supreme Court decision Marbury v. Madison.

The ultimate court for deciding the constitutionality of state law under state constitutions is the highest appellate court in each state — usually called a Supreme Court, but also sometimes known as the Court of Appeals. Even before Marbury, the doctrine of judicial review was specifically enshrined in some state constitutions, and by 1803 it had been employed in both state courts and federal courts in actions dealing with state statutes.

In the Federal system, courts may only decide actual controversies; it is not possible to request the Federal courts to review a law without at least one party with legal standing to engage in a lawsuit. This principle means that courts sometimes do not exercise 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 be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).

Self-imposed restrictions

The Court seeks to avoid reviewing the Constitutionality of an act where the case before it could be decided on other grounds. Justice Brandeis framed it thus:

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

(1) The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.

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

(3)The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'

(4)The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of . . . [I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.

(5) The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.

(6) The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

(7) When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-9 (1936) (Brandeis, concurring) (citing cases) (internal quotation marks omitted).

Pros and cons

Although judicial review has become an established part of constitutional law in the United States, some people disagree with the doctrine, or believe that it is unconstitutional since it is not specifically spelled out in the Constitution.

The Virginia Constitution of 1776 states, "All power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."

In a letter to William C. Jarvis in 1820, Thomas Jefferson wrote:

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps… and their power the more dangerous as they are in office 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 party, its members would become despots. It has more wisely made all departments co-equal and co-sovereign within themselves.

The origins of judicial review in the United States can be traced back to the Constitutional Convention and the Virginia Plan's "council of revision", which included the Supreme Court, that would examine proposed new laws and could accept or reject them. However, under this system, the legislature could pass a bill over the council's veto. By August 27, 1787 this plan had been dropped. James Madison, the author of the Virginia plan, stated in his notes on the convention that:

he [Madison, for he always referred to himself in the third person] doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution and whether it ought not to be limited to cases of a [j]udiciary [n]ature. The right of expounding the Constitution in cases not of this nature ought not to be given to that [d]epartment.

Robert Yates, a delegate to the Constitutional Convention from New York, predicted what would happen:

[I]n their decisions they will not confine themselves to any fixed 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 be, will have the force of law; because there is no power provided in the constitution, that can correct their errors or control their adjudications. From this court there is no appeal… They will be able to extend the limits of the general government gradually, and by insensible degrees… one adjudication will form a precedent to the next, and this to a following one.

Therefore, the Constitutional Convention, believing that the Supreme Court would abuse their power, changed the "council of revision" into the Presidential veto.

Proponents of judicial review note that any government based on a written constitution requires some mechanism to prevent laws from being passed that violate that constitution. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government. This concept was laid out by Alexander Hamilton in Federalist No. 78:

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 be collected 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. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their 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 as the meaning of any particular act proceeding from the legislative body. If there should happen to be 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.