CHAPTER 1

Judicial Review

INTRODUCTION AND OVERVIEW

In the constitutional law course, we study the United States Constitution as it has been interpreted and explained by the federal courts for more than 200 years. The Constitution itself is an amazingly short document. Stripped of its amendments, the Constitution occupies fewer than a dozen pages in your casebook. Even with its amendments, the document is barely 20 pages long. Yet while the Constitution itself is extremely brief, the interpretation of it can be exceedingly complex. The bulk of your constitutional law textbook consists of cases in which a court—usually the U.S. Supreme Court—has been asked to decide whether certain government decisions or practices are invalid because they violate the requirements of the Constitution. This process by which courts rule on the constitutionality of actions taken by federal and state officials is known as judicial review.

Judicial review is the fountain of constitutional law. This is true for several reasons. First, the process of judicial review has created the body of reported decisions that we think of as the law of the Constitution. When we wish to know whether or not the Constitution allows a particular governmental practice, we usually look first to previous court decisions that have interpreted the constitutional provisions in question. Without this steadily accumulating body of case law, we would have little definitive guidance as to the meaning of the Constitution.

Second, it is the process of judicial review that renders the Constitution binding and enforceable as law. In the absence of judicial review, the Constitution would be little more than a statement of normative principles and ideals—similar to the Golden Rule or to the Universal Declaration of Human Rights. Public officials would find it much easier to ignore the Constitution, and statutes that were contrary to the Constitution might still be enforced. Judicial review serves as a mechanism by which public officials may be compelled to perform their duties in accordance with the Constitution.

This chapter examines the doctrine of judicial review as it was developed by the Supreme Court in the early nineteenth century. In reviewing the debate surrounding the legitimacy of this doctrine, we will see that nothing in the Constitution’s text specifically authorizes the federal courts to pass on the validity of actions taken by the other branches of the federal government or by the states. Yet the historical backdrop against which judicial review emerged makes clear that the doctrine is fully consistent with the Founders’ conception of a balanced democracy in which abuses of power by one branch may be checked or prevented by actions of the coordinate branches. In this chapter we will also explore the question of what sources and techniques courts may properly use when they undertake to interpret the Constitution. Finally, we will consider the extent to which the Supreme Court’s interpretations of the Constitution are binding on other branches of the federal government, on state governments, and on other courts.

§1.2 THE BACKGROUND OF MARBURY v. MADISON

In the case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice John Marshall, writing for a unanimous Supreme Court, ruled that the federal judiciary may review the constitutionality of actions taken by the legislative and executive branches of the national government. If those actions are found to be in violation of the Constitution, federal courts may refuse to honor or enforce them. Marbury thus established that federal courts possess the power of judicial review.