Judicial Review in the United Statesis the constitutional ability of acourtto examine and decide if astatute,treatyor administrativeregulationcontradicts or violates the provisions of existing law, aState Constitution, or ultimately theUnited States Constitution.
One can suppose that this could be an effective check and balance of the other organs of State (Legislature and Executive by the Judiciary. If a judicial decision is broad, vague, ambiguous, and not in line with public or political policy and philosophy, the Legislature is free to overrule even the U.S. Supreme Court with newer legislation – another check and balance. The Executive (POTUS) is also able to overrule both the legislature and the courts with Executive Orders which are constitutionally vague and overbroad when read literally with clarity and certainty as benchmarks.
The interesting question is whether the Executive is willing to enforce a U.S. Supreme Court’s decision if it is not politically correct, or suitable, to existing policies of government.
NOTE: The U.S. Supreme Court does not have its own enforcement powers or even police power. It has to depend on the Executive. Is this a check and balance? If the judiciary’s job and function is to interpret the law and declare the law through judicial review, is it a check and balance if the other two organs of state decide to overrule the judiciary? Where does it stop? It can be frustrating to enforce the law once it has been lawfully, legitimately and constitutionally declared, but found to be politically unsuitable. We the People are forced to call it a republican form of representative democracy.
While the U.S. Constitution does not explicitly define a power of judicial review, theauthorityforjudicial reviewin the United States has been inferred from the structure, provisions, and history of the Constitution (The Federalist #78, especially.).
Two landmark decisions by theU.S. Supreme Courtserved to confirm the inferred constitutional authority for judicial review in the United States:
In 1796,Hylton v. United Stateswas the first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act ofCongress, the Carriage Act of 1794 which imposed a "carriage tax".
The Court engaged in the process of judicial review by examining the plaintiff's claim that the carriage tax was unconstitutional. After review, the Supreme Court decided the Carriage Act was not unconstitutional. NOTE: The doctrine and concept of Indian country was obviously and conveniently ignored. The Carriage Act may be addressed to commerce. But what if the traveling in Indian country was for leisure and pleasure and not a measure of commerce?
In 1803,Marbury v. Madisonwas the first Supreme Court case where the Court asserted its authority for judicial review to strike down a law as unconstitutional. At the end of his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed inArticle Sixof the Constitution. Also The Federalist #78 (Alexander Hamilton: “The interpretation of the law is the proper and peculiar province of the courts.”)
NOTE: Today, state judges in non-judicial foreclosure states violate their oaths of office by granting creditor relief based on unconstitutional laws. These judges in states like Alaska, Arizona, California, Colorado, Idaho, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, Oregon, Tennessee, Texas, Utah, Virginia, Washington and West Virginia along with the District of Columbia, keep breaking the law every time their clerks issue Notices of Foreclosure.
As of 2014, the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional.See Congressional Research Services'The Constitution Of The United States, Analysis And Interpretation, 2013 Supplement, pp.49-50.
Judicial review between the adoption of the Constitution andMarbury
The Judiciary Act of 1789
The first Congress passed theJudiciary Act 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 state courts when the state court decided that a federal statute was invalid, or when the state court upheld a state statute against a claim 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 state statutes. The Judiciary Act thereby incorporated the concept of judicial review.
NOTE: Today, we have Rule 13 of the Rules of the U.S. Supreme Court where a state court decision from the state’s highest court could be appealed directly to the U.S. Supreme Court.
Court decisions from 1788 to 1803
Between the ratification of the Constitution in 1788 and the decision inMarbury v. Madisonin 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 down as unconstitutional, and seven additional cases in which statutes were upheld but at least one judge concluded the statute was unconstitutional. he author 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 by Chief Justice Marshall inMarbury, it also reflects widespread acceptance and application of the doctrine."
Prof. Treanor is not altogether correct to say that CJ Marshall created the doctrine of judicial review because Alexander Hamilton wrote about this important and pivotal function and duty of the judiciary in The Federalist #78.C J Marshall simply applied it to full force.
In the 1832 celebrated case of Worcester v. Georgia which conferred exclusive tribal jurisdiction in Cherokee territory, President Andrew Jackson reportedly said: “The chief justice has declared the law. Now let him enforce it.” Instead of enforcing the law, Jackson sent in federal troops to forcibly relocate the Cherokees from Georgia in what became known as “the Trail of Tears.” Such is the history of our checks and balances.
Several other cases involving judicial review issues reached the Supreme Court before the issue was definitively decided inMarburyin 1803.
InHayburn's Case, 2 U.S. (2 Dall.) 408 (1792), federal circuit courts held an act of Congress unconstitutional for the first time. Three federal circuit courts found that Congress had violated the Constitution by passing an act 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 Court, but the appeals became moot when Congress repealed the statute while the appeals were pending.
In an unreported Supreme Court decision in 1794,United States v. Yale Toddthe Supreme Court reversed a pension that was awarded under the same pension act that had been at issue inHayburn's Case. The Court apparently decided that the act designating judges to decide pensions was not constitutional because this was not a proper judicial function. This apparently was the first Supreme Court case to find an act of Congress unconstitutional. However, there was not an official report of the case and it was not used as a precedent.
Hylton v. United States, 3 U.S. (3 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 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 not strike down the act in question, the Court engaged in the process of judicial review by considering 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 act of Congress.Because it found the statute valid, the Court did not have to assert that it had the power to declare a statute unconstitutional.
InWare v. Hylton, 3 U.S. (3 Dall.) 199 (1796), the Supreme Court for the first time struck down a state statute. The Court reviewed a Virginia statute regarding pre-Revolutionary war debts and found that it was inconsistent with thepeace treatybetween the United States and Great Britain. Relying on the Supremacy Clause, the Court found the Virginia statute invalid.
InHollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Court found that it did not have jurisdiction to hear the case because of the jurisdiction limitations of theEleventh Amendment. This holding could be viewed as an implicit finding that theJudiciary Act of 1789, which would have allowed the Court jurisdiction, was unconstitutional in part. However, the Court did not provide any reasoning for its conclusion and did not say that it was finding the statute unconstitutional.
InCooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), Justice Chase stated: "It is indeed a general opinion—it is expressly admitted by all this bar and some of the judges have, individually in the circuits decided, that the Supreme Court can declare an act of Congress to be unconstitutional, and therefore invalid, but there is no adjudication of the Supreme Court itself upon the point.