What Clause in the Constitution Is Used to Justify Judicial Review of State Actions?

Ability of a courtroom in the US to examine laws to make up one's mind if information technology 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 United States Constitution. While the U.Due south. Constitution does non explicitly define the power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.^[1]

2 landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States. In 1796, Hylton five. The states was the starting time 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".^[two] The Court performed judicial review of the plaintiff's claim that the wagon tax was unconstitutional. After review, the Supreme Court decided the Wagon Deed was constitutional. In 1803, Marbury v. Madison ^[3] was the first Supreme Court instance where the Courtroom asserted its authorisation to strike down a law every bit unconstitutional. At the end of his opinion in this conclusion,^[4] Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary issue of their sworn oath of part to uphold the Constitution as instructed in Article Six of the Constitution.

As of 2014^[update], the United States Supreme Courtroom has held 176 Acts of the U.South. Congress unconstitutional.^[v] In the menstruation 1960–2019, the Supreme Courtroom has held 483 laws unconstitutional in whole or in role.^[six]

Judicial review earlier the Constitution [edit]

If the whole legislature, an result to exist deprecated, should endeavor to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the country, will come across the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, here is the limit of your say-so; and, hither, shall y'all go, but no farther.

—George Wythe in Republic v. Caton

But it is non 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 ill humors in the society. These sometimes extend no further than to the injury of particular citizens' private rights, by unjust and partial laws. Here likewise the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. Information technology not only serves to moderate the immediate mischiefs of those which may take been passed, but information technology 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 manner compelled, by the very motives of the injustice they meditate, to authorize their attempts. This is a circumstance calculated to have more than influence upon the character of our governments, than but few may be aware of.

—Alexander Hamilton in Federalist No. 78

Before the Constitutional Convention in 1787, the power of judicial review had been exercised in a number of states. In the years from 1776 to 1787, state courts in at least vii of the thirteen states had engaged in judicial review and had invalidated state statutes because they violated the country constitution or other higher police force.^[7] The first American decision to recognize the principle of judicial review was Bayard 5. Singleton,^[eight] decided in 1787 past the Supreme Court of North Carolina's predecessor. ^[9] The Due north Carolina court and its counterparts in other states treated country constitutions as statements of governing law to be interpreted and applied past judges.

These courts reasoned that because their land constitution was the fundamental police force of the state, they must apply the state constitution rather than an act of the legislature that was inconsistent with the state constitution.^[x] These country court cases involving judicial review were reported in the press and produced public discussion and annotate.^[11] Notable land cases involving judicial review include Commonwealth v. Caton, (Virginia, 1782),^[12] ^[thirteen] Rutgers 5. Waddington (New York, 1784), Trevett 5. Weeden (Rhode Island, 1786). Scholar Larry Kramer agreed with Justice Iredell that whatsoever judge who enforces an unconstitutional law becomes complicit in the unconstitutionality and that they themselves go 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 feel with judicial review because they had been lawyers or judges in these land courtroom cases involving judicial review.^[15] Other delegates referred to some of these state courtroom cases during the debates at the Constitutional Convention.^[xvi] The concept of judicial review therefore was familiar to the framers and to the public earlier the Constitutional Convention.

Some historians argue that Dr. Bonham's Instance 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 incorporate 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 III and Article Half dozen.^[18]

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

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

The Supremacy Clause of Article Half-dozen states:

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

The ability of judicial review has been unsaid from these provisions based on the following reasoning. It is the inherent duty of the courts to determine the applicative constabulary in whatsoever given case. 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. 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 only if they are consistent with the Constitution. Any constabulary contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." As part of their inherent duty to determine the police, the federal courts have the duty to translate and apply the Constitution and to decide whether a federal or state 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 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 make up one's mind whether statutes are consistent with the Constitution.^[nineteen]

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 word of the proposal known as the Virginia Plan. The Virginia Plan included a "council of revision" that would have examined proposed new federal laws and would have accepted or rejected them, similar to today's presidential veto. The "council 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 not need a second way to negate laws by participating in the council of revision. For example, Elbridge Gerry said federal judges "would have a sufficient cheque against encroachments on their own department past their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually fix aside laws, every bit being against the constitution. This was washed too with full general approbation."^[20] Luther Martin said: "[A]southward to the constitutionality of laws, that betoken will come before the judges in their official character. In this character they take a negative on the laws. Bring together them with the executive in the revision, and they will take a double negative."^[21] These and other similar comments past the delegates indicated that the federal courts would have the power of judicial review.

Other delegates argued that if federal judges were involved in the police force-making procedure through participation on the council of revision, their objectivity as judges in subsequently deciding on the constitutionality of those laws could be impaired.^[22] These comments indicated a belief that the federal courts would take 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 take the power of judicial review. For case, James Madison said: "A law violating a constitution established past the people themselves, would be considered by the Judges equally nada & void."^[24] George Mason said that federal judges "could declare an unconstitutional law void."^[25] Nevertheless, Mason added that the power of judicial review is not a general power to strike downwards all laws, only just ones that are unconstitutional:^[25]

But 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 free course.

In all, 15 delegates from nine states fabricated 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 ability of judicial review.^[26] Some delegates to the Constitutional Convention did non speak well-nigh judicial review during the Convention, but did speak virtually it before or after the Convention. Including these additional comments by Convention delegates, scholars have plant that twenty-five or 20-six of the Convention delegates made comments indicating back up for judicial review, while three to six delegates opposed judicial review.^[27] Ane review of the debates and voting records of the convention counted as many as 40 delegates who supported judicial review, with four or v 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 confronting excessive exercise of legislative ability.^[29] ^[xxx]

State ratification debates [edit]

Judicial review was discussed in at least seven of the thirteen state ratifying conventions, and was mentioned by well-nigh two 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 delegate to a state ratifying convention who indicated that the federal courts would not have the ability of judicial review.^[31]

For instance, James Wilson asserted in the Pennsylvania ratifying convention that federal judges would practise judicial review: "If a law should be 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 defined, will declare such law to be nil and void. For the power of the Constitution predominates. Anything, therefore, that shall exist enacted past Congress contrary thereto will not have the force of constabulary."^[32]

In the Connecticut ratifying convention, Oliver Ellsworth likewise described judicial review equally a feature of the Constitution: "This Constitution defines the extent of the powers of the general authorities. If the general legislature should at whatsoever time overleap their limits, the judicial department is a ramble cheque. If the United States get beyond their powers, if they brand a law which the Constitution does not authorize, it is void; and the judicial ability, the national judges, who, to secure their impartiality, are to be fabricated independent, will declare it to be void."^[33]

During the ratification procedure, supporters and opponents of ratification published pamphlets, essays, and speeches debating diverse aspects of the Constitution. Publications by over a dozen authors in at to the lowest degree twelve of the thirteen 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 non involve a ability of judicial review.^[34]

After reviewing the statements fabricated past the founders, one scholar ended: "The evidence from the Constitutional Convention and from the country ratification conventions is overwhelming that the original public meaning of the term 'judicial power' [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, made several references to the power of judicial review. The most extensive word of judicial review was in Federalist No. 78, written by Alexander Hamilton, which clearly explained that the federal courts would have 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 corruption of power past Congress:

[T]he courts were designed to be an intermediate body between the people and the legislature, in guild, among other things, to continue the latter within the limits assigned to their dominance. 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 cardinal law. It therefore belongs to them to ascertain its pregnant, also equally the meaning of any detail deed proceeding from the legislative body. If there should happen to be an irreconcilable variance betwixt the two, that which has the superior obligation and validity ought, of form, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by whatsoever means suppose a superiority of the judicial to the legislative power. It only supposes that the ability 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 exist governed past the latter rather than the former. They ought to regulate their decisions by the primal laws, rather than by those which are not fundamental. ...

[A]ccordingly, whenever a particular statute contravenes the Constitution, information technology volition be the duty of the Judicial tribunals to attach to the latter and disregard the former. ...

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

In Federalist No. 80, Hamilton rejected the idea that the ability to decide 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 independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion tin can go on."^[37] Consequent with the demand for uniformity in interpretation of the Constitution, Hamilton explained in Federalist No. 82 that the Supreme Court 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 have the power of judicial review, though the Anti-Federalists viewed this negatively. Robert Yates, writing under the pseudonym "Brutus", stated:

[T]he judges under this constitution will command the legislature, for the supreme courtroom are authorised in the terminal resort, to make up one's mind what is the extent of the powers of the Congress. They are to requite the constitution an explanation, and there is no power above them to set aside their judgment. ... The supreme court then have a correct, independent of the legislature, to give a construction to the constitution and every function of it, and there is no ability provided in this system to correct their construction or do it abroad. If, therefore, the legislature pass whatever laws, inconsistent with the sense the judges put upon the constitution, they will declare it void.^[39]

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

Judiciary Human activity of 1789 [edit]

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

Court decisions from 1788 to 1803 [edit]

Betwixt 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 assay has identified 30-one state or federal cases during this fourth dimension in which statutes were struck downward equally unconstitutional, and seven additional cases in which statutes were upheld simply at to the lowest degree i approximate concluded the statute was unconstitutional.^[forty] The writer of this analysis, Professor William Treanor, concluded: "The sheer number of these decisions not only belies the notion that the institution of judicial review was created past Principal Justice Marshall in Marbury, it also reflects widespread acceptance and application of the doctrine."^[41]

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

In Hayburn's Case, two U.South. (ii Dall.) 408 (1792), federal excursion courts held an act of Congress unconstitutional for the showtime time. Three federal circuit courts establish that Congress had violated the Constitution by passing an act requiring circuit courtroom 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 function under Commodity Iii. These three decisions were appealed to the Supreme Court, but the appeals became moot when Congress repealed the statute while the appeals were awaiting.^[42]

In an unreported Supreme Courtroom decision in 1794, Usa v. Yale Todd,^[43] the Supreme Court reversed a pension that was awarded under the same pension act that had been at event in Hayburn'south Case. The Court obviously decided that the act designating judges to decide pensions was not constitutional because this was not a proper judicial role. This apparently was the outset Supreme Court case to find an human action of Congress unconstitutional. However, there was not an official report of the case and it was non used every bit a precedent.

Hylton five. United States, 3 U.South. (three Dall.) 171 (1796), was the first case decided by the Supreme Court that involved a challenge to the constitutionality of an act of Congress. It was argued that a federal taxation on carriages violated the constitutional provision regarding "direct" taxes. The Supreme Courtroom upheld the tax, finding it was constitutional. Although the Supreme Court did not strike downward the act 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 human action of Congress.^[44] Because it found the statute valid, the Court did not have to assert that it had the power to declare a statute unconstitutional.^[45]

In Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), the Supreme Court for the first time struck down a country statute. The Court reviewed a Virginia statute regarding pre-Revolutionary war debts and found that it was inconsistent with the peace treaty between the Us and Corking Great britain. Relying on the Supremacy Clause, the Courtroom institute the Virginia statute invalid.

In Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Court plant that it did not have jurisdiction to hear the case because of the jurisdiction limitations of the Eleventh Amendment. This belongings could be viewed as an implicit finding that the Judiciary Deed of 1789, which would have allowed the Courtroom jurisdiction, was unconstitutional in part. However, the Court did non provide any reasoning for its decision and did not say that it was finding the statute unconstitutional.^[46]

In Cooper v. Telfair, 4 U.S. (4 Dall.) fourteen (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 can declare an human action of Congress to be unconstitutional, and therefore invalid, just there is no adjudication of the Supreme Court itself upon the point."^[47]

Responses to the Kentucky and Virginia Resolutions [edit]

In 1798, the Kentucky and Virginia legislatures passed a series of resolutions asserting that u.s.a. have the ability to determine whether acts of Congress are constitutional. In response, ten states passed their ain resolutions disapproving the Kentucky and Virginia Resolutions.^[48] 6 of these states took the position that the power to declare acts of Congress unconstitutional lies in the federal courts, non in the state legislatures. For example, Vermont's resolution stated: "Information technology belongs not to state legislatures to decide on the constitutionality of laws made past the general government; this power being exclusively vested in the judiciary courts of the Union."^[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 power of judicial review.

Marbury v. Madison [edit]

Marbury was the first Supreme Court determination to strike down an deed of Congress as unconstitutional. Chief Justice John Marshall wrote the opinion for a unanimous Court.

The instance arose when William Marbury filed a lawsuit seeking an order (a "writ of mandamus") requiring the Secretary of Land, James Madison, to deliver to Marbury a commission appointing him as a justice of the peace. Marbury filed his instance straight in the Supreme Court, invoking the Court's "original jurisdiction", rather than filing in a lower court.^[l]

The constitutional issue involved the question of whether the Supreme Court 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. And so, nether the Judiciary Act, the Supreme Court would have had jurisdiction to hear Marbury'south case. However, the Constitution describes the cases in which the Supreme Court has original jurisdiction, and does not include mandamus cases.^[52] The Judiciary Human action therefore attempted to give the Supreme Court jurisdiction that was not "warranted past the Constitution."^[53]

Marshall'south stance stated that in the Constitution, the people established a authorities of limited powers: "The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written." The limits established in the Constitution would be meaningless "if these limits may at any time exist passed past those intended to be restrained." Marshall observed that the Constitution is "the key and paramount constabulary of the nation", and that it cannot exist altered by an ordinary act of the legislature. Therefore, "an act of the Legislature repugnant to the Constitution is void."^[54]

Marshall then discussed the role of the courts, which is at the heart of the doctrine of judicial review. It would be an "applesauce", said Marshall, to require the courts to apply a law that is void. Rather, information technology is the inherent duty of the courts to translate and utilise the Constitution, and to determine whether there is a conflict betwixt a statute and the Constitution:

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

And then, if a police be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, and then that the Courtroom must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the constabulary, the Courtroom must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, and then, the Courts are to regard the Constitution, and the Constitution is superior to whatsoever ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both utilise. ...^[55]

Marshall stated that the courts are authorized by the provisions of the Constitution itself to "look into" the Constitution, that is, to interpret and utilize it, and that they have the duty to refuse to enforce any laws that are opposite to the Constitution. Specifically, Commodity 3 provides that the federal judicial ability "is extended to all cases arising nether the Constitution." Commodity Half dozen requires judges to have an oath "to support this Constitution." Article Half-dozen also states that only laws "made in pursuance of the Constitution" are the law of the land. Marshall concluded: "Thus, the detail phraseology of the Constitution of the United States 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, as well as other departments, are spring past that instrument."^[56]

Marbury long has been regarded as the seminal case with respect to the doctrine of judicial review. Some scholars accept suggested that Marshall's stance in Marbury essentially created judicial review. In his volume The Least Dangerous Branch, Professor Alexander Bickel wrote:

[T]he institution of the judiciary needed to be summoned up out of the constitutional vapors, shaped, and maintained. And the Nifty Chief Justice, John Marshall—not unmarried-handed, but commencement and foremost—was at that place to do it and did. If any social procedure tin exist said to accept been 'done' at a given time, and past a given act, it is Marshall's accomplishment. The fourth dimension was 1803; the deed was the conclusion in the instance of Marbury 5. 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 best-selling 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 xx years before Marbury. Including the Supreme Courtroom in Hylton v. United States. One scholar concluded: "[B]efore Marbury, judicial review had gained wide support."^[58]

Judicial review later Marbury [edit]

Marbury was the bespeak at which the Supreme Court adopted a monitoring part over authorities actions.^[59] After the Court exercised its power of judicial review in Marbury, it avoided striking downwardly a federal statute during the next fifty years. The court would not do so again until Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).^[60]

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

In a few cases, state courts took the position that their judgments were terminal and were not subject area to review by the Supreme Court. They argued that the Constitution did not give the Supreme Court the say-so to review state court decisions. They asserted that the Judiciary Act of 1789, which provided that the Supreme Court could hear certain 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 land court decisions. This would have left u.s. free to adopt their own interpretations of the Constitution.

The Supreme Court rejected this statement. In Martin v. Hunter'due south Lessee, fourteen U.S. (1 Wheat.) 304 (1816), the Court held that nether Article Three, the federal courts have jurisdiction to hear all cases arising under the Constitution and laws of the United States, and that the Supreme Court has appellate jurisdiction in all such cases, whether those cases are filed in state or federal courts. The Court issued another decision to the same result in the context of a criminal case, Cohens 5. Virginia, 19 U.S. (6 Wheat.) 264 (1821). It is now well established that the Supreme Court may review decisions of state courts that involve federal police force.

The Supreme Court besides has reviewed deportment of the federal executive branch to determine whether those actions were authorized past acts of Congress or were across the authority granted by Congress.^[62]

Judicial review is now well established every bit a cornerstone of constitutional law. As of September 2017, the United States Supreme Court had held unconstitutional portions or the entirety of some 182 Acts of the U.S. Congress, the most recently in the Supreme Court's June 2017 Matal five. Tam and 2019 Iancu v. Brunetti decisions striking downward 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 go an established office of ramble law in the United States, in that location are some who disagree with the doctrine.

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

I do not pretend to vindicate the law, which has been the subject of controversy: it is immaterial what law they accept declared void; it is their usurpation of the authority to do information technology, that I complain of, as I practise most positively deny that they take whatever such power; nor can they find any matter in the Constitution, either straight or impliedly, that will support them, or give them any color 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 forbid laws that violate that constitution from being made and enforced. Otherwise, the document would be meaningless, and the legislature, with the power to enact whatever laws whatever, would exist the supreme arm of authorities (the British doctrine of parliamentary sovereignty). The delegates at the Convention differed with respect to the question of whether Congress or the judiciary should 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 role of reviewing the constitutionality of statutes:

If information technology exist said that the legislative torso 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 be answered, that this cannot be the natural presumption, where it is not to be collected from whatever particular provisions in the Constitution. It is non 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 society, 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 ain views of the constabulary, without an adequate check from any other co-operative 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 utilise the power of judicial review loosely to impose their views about the "spirit" of the Constitution:

[I]n their decisions they will not confine themselves to whatever stock-still or established rules, but volition decide, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, any they may be, will have the forcefulness of constabulary; because in that location is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal.^[68]

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

Yous seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and ane which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and non more so. They have, with others, the aforementioned passions for party, for power, and the privilege of their corps. ... Their ability [is] the more than dangerous as they are in function for life, and not responsible, as the other functionaries are, to the constituent command. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would go 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 first 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 deportment the people will have ceased to be their ain 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 assail 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 mistake of theirs if others seek to turn their decisions to political purposes.^[70]

Lincoln was alluding hither to the instance of Dred Scott v. Sandford, in which the Courtroom had struck downward a federal statute for the first fourth dimension since Marbury 5. Madison.^[60]

It has been argued that the judiciary is not the but branch of government that may interpret the significant of the Constitution.^{[ who? ]} Commodity 6 requires federal and state officeholders to exist leap "by Oath or Affidavit, to support this Constitution." It has been argued that such officials may follow their own interpretations of the Constitution, at to the lowest degree until those interpretations have been tested in court.

Some have 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 10th Amendment reserves to the states (or to the people) those powers not expressly delegated to the federal government. The second statement is that the states lone have the power to ratify changes to the "supreme constabulary" (the U.Southward. Constitution), and each state'southward understanding of the language of the amendment therefore becomes germane to its implementation and effect, making information technology necessary that the states play some role in interpreting its significant. Under this theory, allowing just federal courts to definitively conduct judicial review of federal law allows the national government to interpret its own restrictions as it sees fit, with no meaningful input from the ratifying, that is, validating power.

Standard of review [edit]

In the United States, unconstitutionality is the simply basis for a federal court to strike downwards a federal statute. Justice Washington, speaking for the Marshall Courtroom, put information technology this mode in an 1829 example:

We intend to decide no more than that the statute objected to in this case is not repugnant to the Constitution of the United States, and that unless it exist then, this Courtroom has no authority, nether the 25th section of the judiciary human action, to re-examine and to opposite the judgement of the supreme courtroom of Pennsylvania in the nowadays case.^[72]

If a state statute conflicts with a valid federal statute, and then courts may strike down the state statute equally an unstatutable^[73] violation of the Supremacy Clause. But a federal courtroom may not strike downward 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 downwardly federal statutes absent a conflict with the Constitution. For instance, Robert Yates, writing under the pseudonym "Brutus", asserted that "the courts of the full general government [volition] be under obligation to observe the laws made by the general legislature not repugnant to the constitution."^[74]

These principles—that federal statutes can just 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 case, George Mason explained during the constitutional convention that judges "could declare an unconstitutional law void. But with regard to every police, notwithstanding unjust, oppressive or pernicious, which did non come plainly under this clarification, they would be under the necessity as Judges to give it a free class."^[25]

For a number of years, the courts were relatively deferential to Congress. Justice Washington put information technology this style, in an 1827 case: "It is but 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 doubt."^[75]

Although judges usually adhered to this principle that a statute could only be deemed unconstitutional in instance of a articulate contradiction until the twentieth century, this presumption of constitutionality weakened somewhat during the twentieth century, as exemplified by the Supreme Court's famous footnote four in United States v. Carolene Products Co., 304 U.S. 144 (1938), which suggested that statutes may be subjected to closer scrutiny in certain types of cases. However, the federal courts take not departed from the principle that courts may only strike downwardly statutes for unconstitutionality.

Of form, the practical implication of this principle is that a court cannot strike down a statute, even if it recognizes that the statute is plain poorly drafted, irrational, or arises from legislators' decadent motives, unless the flaw in the statute rises to the level of a articulate constitutional violation. In 2008, Justice John Paul Stevens reaffirmed this point in a concurring opinion: "[A]s I recollect my esteemed erstwhile colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'"^[76]

In the federal system, courts may but decide actual cases or controversies; information technology is not possible to asking the federal courts to review a law without at least one party having legal standing to engage in a lawsuit. This principle ways that courts sometimes exercise non practise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some country courts, such equally the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).

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

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

The Court will non laissez passer upon the constitutionality of legislation in a friendly, not-adversary, proceeding, declining because to make up one's mind such questions is legitimate only in the last resort, and equally a necessity in the determination of existent, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party browbeaten in the legislature could transfer to the courts an enquiry as to the constitutionality of the legislative human action.

The Court volition non conceptualize a question of ramble constabulary in advance of the necessity of deciding it. It is not the addiction of the court to make up one's mind questions of a constitutional nature unless admittedly necessary to a decision of the case.

The Court will not formulate a dominion of constitutional law broader than required past the precise facts information technology applies to.

The Court volition not laissez passer upon a constitutional question although properly presented by the tape, if at that place is also present some other ground upon which the case may exist disposed of ... If a case can be decided on either of ii grounds, one involving a ramble question, the other a question of statutory construction or full general constabulary, the Court will decide just the latter.

The Courtroom volition not 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 non laissez passer upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

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 volition outset ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

Laws limiting judicial review [edit]

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

Another fashion 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 whatever Human action of Congress unconstitutional.^[78] The bill was approved by the House, 116 to 39.^[79] That measure out died in the Senate, partly because the bill was unclear almost how the beak's ain constitutionality would be decided.^[80]

Many other bills take been proposed in Congress that would require a supermajority in gild for the justices to exercise judicial review.^[81] During the early on years of the United states of america, a 2-thirds majority was necessary for the Supreme Court to practice judicial review; because the Court and then consisted of vi members, a unproblematic majority and a two-thirds majority both required iv votes.^[82] Currently, the constitutions of two states require a supermajority of supreme court justices in lodge to exercise judicial review: Nebraska (5 out of seven justices) and North Dakota (four out of 5 justices).^[81]

Administrative review [edit]

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

Notes [edit]

^ "The Establishment of Judicial Review". Findlaw.
^ Congress, United States. "United States Statutes at Large, Volume i" – via Wikisource.
^ Marbury five. Madison, five US (1 Cranch) 137 (1803).
^ "Marbury v. Madison – John Marshall – 1803 – AMDOCS: Documents for the Study of American History".
^ Meet Congressional Research Services' The Constitution of the Us, Analysis And Interpretation, 2013 Supplement, pp. 49–50.
^ "Table of Laws Held Unconstitutional in Whole or in Function by the Supreme Court". U.S. Congress. Retrieved Feb 22, 2021.
^ Prakash, Saikrishna B.; Yoo, John C. (2003). "The Origins of Judicial Review". The University of Chicago Law Review. seventy (iii): 887–982. doi:10.2307/1600662. ISSN 0041-9494. JSTOR 1600662.
^ Bayard 5. Singleton , 1 North.C. v (N.C. 1787).
^ Brown, Andrew. "Bayard 5. Singleton: North Carolina every bit the Pioneer of Judicial Review". North Carolina Found of Constitutional Police. Archived from the original on 2019-08-16. Retrieved 2019-08-16 .
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, pp. 933–934.
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary Review, p. 936.
^ The Judicial Branch of State Authorities: People, Procedure, and Politics
^ John Marshall: Definer of a Nation
^ The People Themselves - Popular Constitutionalism and Judicial Review, Larry Kramer
^ Prakash and Yoo, "The Origins of Judicial Review", lxx U. of Chicago Police Review p. 939.
^ For case, James Madison referred to "the judges who refused to execute an unconstitutional law" in a Rhode Isle example. 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 really set bated laws, as beingness 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 Association. 42 (3). doi:x.2307/1330694. ISSN 0017-811X. JSTOR 1330694.
^ While the Constitution does not explicitly authorize judicial review, it likewise does not explicitly prohibit information technology, as did the Virginia Constitution of 1776. That Virginia Constitution said: "All power of suspending laws, or the execution of laws, by any authorization, 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 Machine via Avalon Project at Yale Constabulary School.
^ See Marbury five. Madison, 5 U.S. at 175–78.
^ See Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. one. New Oasis: Yale Academy Press. p. 97.
^ Farrand, The Records of the Federal Convention of 1787, vol. 2, p. 76. Nathaniel Gorham besides made comments forth these lines. See Rakove, Jack N. (1997). "The Origins of Judicial Review: A Plea for New Contexts". Stanford Constabulary Review. 49 (5): 1031–64. doi:ten.2307/1229247. ISSN 0038-9765. JSTOR 1229247.
^ Delegates making these comments included Rufus King, Caleb Strong, Nathaniel Gorham, and John Rutledge. Come across Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Law Review at 1058.
^ The council of revision proposed in the Virginia Programme ultimately morphed into the Presidential veto. In its terminal form, the executive alone would exercise the veto, without participation by the federal judiciary.
^ Ibid., p. 93. Delegates approving of judicial review likewise included James Wilson and Gouverneur Morris, among others. See Prakash and Yoo, "The Origins of Judicial Review", lxx U. of Chicago Police Review at 941–43.
^ ^a ^b ^c Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Haven: Yale University Press. p. 78.
^ 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 propose a provision prohibiting judicial review. During the state ratification conventions, they best-selling that under the last Constitution, the courts would accept the ability of judicial review. Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Police force Review, p. 943.
^ Raoul Berger found that twenty-six Convention delegates supported Constitution review, with half-dozen opposed. Berger, Raoul (1969). Congress v. The Supreme Courtroom . Harvard Academy Printing. p. 104. Charles Beard counted 20-five delegates in favor of judicial review and three against. Beard, Charles (1962) [1912]. The Supreme Court and the Constitution . Prentice Hall. p. 69.
^ Melvin, Frank, "The Judicial Bulwark of the Constitution", viii American Political Science Review 167, 185–195 (1914).
^ See Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary Review at pp. 931–32.
^ James Madison at one point 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 mostly to cases arising under the Constitution and whether information technology ought non to be express to cases of a judiciary nature. The correct of expounding the Constitution in cases not of this nature ought non to be given to that department." Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. ii. New Haven: Yale University Press. p. 430. Madison wanted to clarify that the courts would non have a free-floating power to declare unconstitutional any law that was passed; rather, the courts would be able to rule on constitutionality of laws just when those laws were properly presented to them in the context of a courtroom case that came earlier them. Come across Burr, Charles, "Unconstitutional Laws and the Federal Judicial Ability", sixty U. Pennsylvania Police force Review 624, 630 (1912). No change in the language was fabricated in response to Madison'south comment.
^ See Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Law Review at p. 965.
^ Elliot, Jonathan (1863) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 2. Philadelphia: Lippincott. p. 489.
^ Elliot, Jonathan (1863) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. two. Philadelphia: Lippincott. p. 196.
^ See Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Constabulary Review at pp. 973–75.
^ Barnett, Randy, "The Original Meaning of Judicial Ability", 12 Supreme Court Economic Review 115, 138 (2004).
^ Hamilton, Alexander. Federalist No. 78 (June 14, 1788). Meet also Federalist No. 81, which says: "[T]he Constitution ought to exist 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. 80 (June 21, 1788)
^ Federalist No. 82 (July two, 1788)
^ "The Problem of Judicial Review – Teaching American History". Archived from the original on 2011-06-30. 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 Law Review, p. 458.
^ Five of the 6 Supreme Court justices at that time had sat every bit excursion judges in the iii excursion courtroom cases that were appealed. All v of them had found the statute unconstitutional in their capacity as circuit judges.
^ In that location was no official report of the example. The case is described in a note at the end of the Supreme Courtroom's decision in United States v. Ferreira, 54 U.S. (13 How.) 40 (1851).
^ Professor Jack Rakove wrote: "Hylton v. United States was manifestly a case 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." See Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Law Review at 1039–41.
^ Justice Chase'due south opinion stated: "[I]t is unnecessary, at this time, for me to make up one's mind, whether this court, constitutionally possesses the power to declare an act of congress void, on the ground of its being made contrary to, and in violation of, the constitution."
^ See Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review, p. 547.
^ Chase'south argument nearly decisions by judges in the circuits referred to Hayburn's Case.
^ Seven states formally rejected the Kentucky and Virginia resolutions and transmitted their rejections to Kentucky and Virginia (Delaware, Massachusetts, New York, Connecticut, Rhode Isle, New Hampshire, and Vermont). Come across Elliot, Jonathan (1907) [1836]. Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 4 (expanded 2d ed.). Philadelphia: Lippincott. pp. 538–539. ISBN0-8337-1038-9. . Three states passed resolutions expressing disapproval only did not transmit formal responses to Kentucky and Virginia (Maryland, Pennsylvania, and New Jersey). Anderson, Frank Maloy (1899). "Gimmicky Stance 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 State 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 Commission of the Maryland legislature too took this position. The remaining states did not accost this issue. Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244.
^ For a more detailed description of the case, come across Marbury v. Madison.
^ There were several not-constitutional issues, including whether Marbury was entitled to the committee and whether a writ of mandamus was the appropriate remedy. The Court's opinion dealt with those issues commencement, finding that Marbury was entitled to the committee and that mandamus was a proper remedy. See Marbury v. Madison.
^ Commodity Three of the Constitution says: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a country shall be party, the Supreme Court shall accept original jurisdiction. In all the other cases ... the Supreme Court shall have appellate jurisdiction."
^ Marbury, 5 U.S. at 175–176.
^ Marbury, five U.Due south., pp. 176–177.
^ Marbury, five U.S., pp. 177–178.
^ Marbury, 5 U.South., pp. 178–180.
^ Bickel, Alexander (1962). The Least Dangerous Branch: The Supreme Court at the Bar of Politics . Indianapolis: Bobbs-Merrill. p. ane. ISBN9780300032994.
^ Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review at 555. Meet as well Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police Review at 1035–41.
^ Laura Langer, Judicial Review in State Supreme Courts: A Comparative Written report (Albany: Country University of New York Printing, 2002), p. four
^ ^a ^b See Menez, Joseph et al., Summaries of Leading Cases on the Constitution, folio 125 (2004).
^ The Supreme Courtroom subsequently decided that a number of other cases finding state statutes unconstitutional. See, for example, Sturges five. Crowninshield, 17 U.Due south. (four Wheat.) 122 (1819), McCulloch 5. Maryland, 17 U.Southward. (iv Wheat.) 316 (1819), and Gibbons five. Ogden, 22 U.S. (9 Wheat.) one (1824).
^ See Little v. Barreme, vi U.S. (2 Cranch) 170 (1804) (the "Flight Fish case").
^ The Supreme Court and the Constitution, Charles A. Beard, pp. 70-71
^ Judicial Review and Non-enforcement at the Founding, Academy of Pennsylvania, p. 496
^ University of Pennsylvania Police Review and American Constabulary Annals
^ 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 Machine.
^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820).
^ Lincoln, Abraham. First Inaugural Address Archived 2007-08-17 at the Wayback Machine (March 4, 1861).
^ 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. 50. Rev. 1456 (1954). A brief review of the fence on the subject field is Westin, "Introduction: Charles Beard and American Fence over Judicial Review, 1790–1961", in: C. Bristles, The Supreme Court and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), one–34, and bibliography at 133–149. See more at: http://constitution.findlaw.com/article3/annotation13.html#f576
^ Satterlee v. Matthewson, 27 U.S. 380 (1829).
^ "Unstatutable – Definition and More from the Free Merriam-Webster Dictionary". Merriam-Webster . Retrieved 8 May 2013.
^ "Commodity 3, Section 2, Clause 2: Brutus, no. 14".
^ Ogden v. Saunders, 25 U.S. 213 (1827).
^ New York Country Bd. of Elections v. Lopez Torres, 552 U.South. ___, ___ (2008) (Stevens, J., concurring).
^ Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–ix (1936) (Brandeis, concurring) (citing cases)
^ Schwartz, Bernard. A History of the Supreme Court, page 141 (Oxford University Printing U.s.a. 1995).
^ McPherson, Edward. A political manual for 1868, pages 350–351 (Philp & Solomons 1868).
^ Goldstone, Lawrence. Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865–1903, pages 55–56 (Bloomsbury Publishing USA 2011).
^ ^a ^b Caminker, Evan. "Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons From the By Archived 2012-03-09 at the Wayback Car", 78 Indiana Law Journal 73 (2003).
^ Nackenoff, Ballad. "Ramble Reforms to Enhance Autonomous Participation and Deliberation: Not All Clearly Trigger the Article V Subpoena Process Archived 2012-03-19 at the Wayback Machine", 67 Maryland Law Review 62, 65 (2007).
^ 403 U.S. 388 (1971).