Which of the Following Statements About Judicial Review Is Accurate?

Ability of a court in the US to examine laws to determine if it contradicts electric current laws

In the Usa, judicial review is the legal ability of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing constabulary, a State Constitution, or ultimately the United states Constitution. While the U.S. Constitution does not 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]

Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional dominance for judicial review in the United States. In 1796, Hylton v. United states was the first case decided past the Supreme Courtroom involving a direct challenge to the constitutionality of an human action of Congress, the Carriage Act of 1794 which imposed a "railroad vehicle tax".^[2] The Court performed judicial review of the plaintiff'due south merits that the carriage taxation was unconstitutional. After review, the Supreme Court decided the Carriage Act was constitutional. In 1803, Marbury five. Madison ^[iii] was the first Supreme Court example where the Court asserted its dominance to strike down a constabulary as unconstitutional. At the terminate of his opinion in this decision,^[4] Chief Justice John Marshall maintained that the Supreme Court'due south responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of function to uphold the Constitution every bit instructed in Article Half-dozen of the Constitution.

Equally of 2014^[update], the United states of america Supreme Court has held 176 Acts of the U.S. Congress unconstitutional.^[5] In the menstruum 1960–2019, the Supreme Court has held 483 laws unconstitutional in whole or in office.^[6]

Judicial review earlier the Constitution [edit]

If the whole legislature, an event to be deprecated, should endeavour to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, here is the limit of your authority; and, hither, shall you become, simply no farther.

—George Wythe in Republic v. Caton

Just it is not with a view to infractions of the Constitution but, 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 farther than to the injury of particular citizens' private rights, by unjust and partial laws. Hither also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It non only serves to moderate the immediate mischiefs of those which may have been passed, simply information technology operates every bit a bank check upon the legislative torso 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 mode 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 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 seven of the thirteen states had engaged in judicial review and had invalidated country statutes considering they violated the state constitution or other higher constabulary.^[seven] The get-go American decision to recognize the principle of judicial review was Bayard 5. Singleton,^[8] decided in 1787 past the Supreme Court of North Carolina'south predecessor. ^[9] The Due north Carolina courtroom and its counterparts in other states treated land constitutions as statements of governing law to be interpreted and applied by judges.

These courts reasoned that because their land constitution was the central law of the country, they must employ the state constitution rather than an act of the legislature that was inconsistent with the state constitution.^[10] These state court cases involving judicial review were reported in the press and produced public discussion and annotate.^[eleven] Notable state cases involving judicial review include Commonwealth v. Caton, (Virginia, 1782),^[12] ^[xiii] Rutgers v. Waddington (New York, 1784), Trevett v. Weeden (Rhode Island, 1786). Scholar Larry Kramer agreed with Justice Iredell that any judge who enforces an unconstitutional police becomes complicit in the unconstitutionality and that they themselves become lawbreakers.^[fourteen]

At least seven of the delegates to the Ramble Convention, including Alexander Hamilton, John Blair Jr. George Wythe, and Edmund Randolph, had personal feel with judicial review considering they had been lawyers or judges in these state court cases involving judicial review.^[15] Other delegates referred to some of these country court 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 fence that Dr. Bonham's Example was influential in the development of judicial review in the United states of america.^[17]

Provisions of the Constitution [edit]

The text of the Constitution does non contain a specific reference to the power of judicial review. Rather, the power to declare laws unconstitutional has been deemed an implied power, derived from Article Iii and Article Six.^[eighteen]

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 Court, and in such inferior courts as the Congress may from time to fourth dimension ordain and found. ... The judicial power shall extend to all cases, in police and equity, arising under this Constitution, the laws of the Usa, and treaties made, or which shall exist made, under their authorization. ... In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall take appellate jurisdiction, both as to police and fact, with such exceptions, and under such regulations as the Congress shall make.

The Supremacy Clause of Commodity Half-dozen states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall exist made, under the Potency of the United states, shall be the supreme Police force of the State; and the Judges in every State shall be bound thereby, any Matter in the Constitution or Laws of any Land to the Opposite notwithstanding. ... [A]ll executive and judicial Officers, both of the United States and of the several States, shall be leap by Oath or Affirmation, to support this Constitution.

The power 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 applicable law in any given case. The Supremacy Clause says "[t]his Constitution" is the "supreme constabulary of the land." The Constitution therefore is the cardinal law of the United States. Federal statutes are the law of the country only when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid only 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 role of their inherent duty to determine the law, the federal courts take the duty to interpret and utilize the Constitution and to determine whether a federal or state statute conflicts with the Constitution. All judges are leap 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 as unenforceable. The Supreme Courtroom has final appellate jurisdiction in all cases arising under the Constitution, so the Supreme Court has the ultimate authorization to decide whether statutes are consistent with the Constitution.^[19]

Statements past 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 give-and-take of the proposal known as the Virginia Program. The Virginia Plan included a "council of revision" that would accept examined proposed new federal laws and would have accepted or rejected them, similar to today'south 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 quango of revision. They argued the federal judiciary, through its ability 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 past participating in the quango of revision. For example, Elbridge Gerry said federal judges "would have a sufficient cheque against encroachments on their ain department past their exposition of the laws, which involved a ability of deciding on their constitutionality. In some states the judges had really set aside laws, as beingness confronting the constitution. This was washed besides with general approbation."^[20] Luther Martin said: "[A]s to the constitutionality of laws, that indicate volition come 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 past the delegates indicated that the federal courts would take the power of judicial review.

Other delegates argued that if federal judges were involved in the law-making process through participation on the council of revision, their objectivity as judges in afterwards deciding on the constitutionality of those laws could be impaired.^[22] These comments indicated a conventionalities 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 instance, James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges as cypher & void."^[24] George Mason said that federal judges "could declare an unconstitutional law void."^[25] Notwithstanding, Stonemason added that the power of judicial review is not a general power to strike downwardly all laws, but only ones that are unconstitutional:^[25]

But with regard to every police force however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity equally Judges to give information technology a gratuitous course.

In all, fifteen delegates from nine 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 ability of judicial review.^[26] Some delegates to the Constitutional Convention did not speak most judicial review during the Convention, only did speak near information technology earlier or after the Convention. Including these additional comments by Convention delegates, scholars have plant that twenty-five or twenty-six of the Convention delegates made comments indicating support for judicial review, while three to six delegates opposed judicial review.^[27] One review of the debates and voting records of the convention counted as many equally forty delegates who supported judicial review, with four or five 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 against excessive exercise of legislative power.^[29] ^[30]

Country ratification debates [edit]

Judicial review was discussed in at least vii of the 13 state ratifying conventions, and was mentioned by almost two dozen delegates. In each of these conventions, delegates asserted that the proposed Constitution would let the courts to exercise judicial review. At that place is no record of any delegate to a state ratifying convention who indicated that the federal courts would not accept the power of judicial review.^[31]

For example, James Wilson asserted in the Pennsylvania ratifying convention that federal judges would exercise judicial review: "If a constabulary should be made inconsistent with those powers vested past this musical instrument in Congress, the judges, equally a consequence of their independence, and the item powers of government being defined, will declare such law to be aught and void. For the ability of the Constitution predominates. Anything, 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 full general government. If the general legislature should at whatsoever time overleap their limits, the judicial section is a constitutional bank check. If the United States go beyond their powers, if they brand a police force which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, volition declare it to exist void."^[33]

During the ratification procedure, supporters and opponents of ratification published pamphlets, essays, and speeches debating various aspects of the Constitution. Publications past 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 not involve a power of judicial review.^[34]

After reviewing the statements fabricated by the founders, ane scholar concluded: "The testify from the Constitutional Convention and from the state 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 ability of judicial review. The almost extensive discussion 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 ability to declare laws unconstitutional. Hamilton asserted that this was advisable because it would protect the people against abuse of ability by Congress:

[T]he courts were designed to be an intermediate body between the people and the legislature, in order, amid 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 police. It therefore belongs to them to ascertain its pregnant, as well as the meaning of any detail act proceeding from the legislative torso. If there should happen to be an irreconcilable variance betwixt the two, that which has the superior obligation and validity ought, of form, 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 past any 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, alleged in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not central. ...

[A]ccordingly, whenever a particular statute contravenes the Constitution, it 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 equally the bulwarks of a limited Constitution against legislative encroachments.^[36]

In Federalist No. 80, Hamilton rejected the idea that the power to determine the constitutionality of an deed 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 null but contradiction and confusion tin proceed."^[37] Consistent with the demand for uniformity in interpretation of the Constitution, Hamilton explained in Federalist No. 82 that the Supreme Court has authority 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 nether this constitution will control the legislature, for the supreme court are authorised in the concluding resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power higher up them to set aside their judgment. ... The supreme court and then have a correct, independent of the legislature, to requite a structure to the constitution and every office of it, and there is no power provided in this system to correct their structure or practise it away. If, therefore, the legislature pass whatsoever 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 action of 1789 [edit]

The first Congress passed the Judiciary 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 courtroom decided that a federal statute was invalid, or when the country courtroom upheld a state statute confronting a claim that the state statute was repugnant to the Constitution. This provision gave the Supreme Court the power to review state courtroom decisions involving the constitutionality of both federal statutes and state statutes. The Judiciary Deed thereby incorporated the concept of judicial review.

Courtroom decisions from 1788 to 1803 [edit]

Between the ratification of the Constitution in 1788 and the decision in Marbury 5. Madison in 1803, judicial review was employed in both the federal and land courts. A detailed analysis has identified thirty-one land or federal cases during this time in which statutes were struck downward as unconstitutional, and seven additional cases in which statutes were upheld but at least i judge concluded the statute was unconstitutional.^[40] The author of this assay, Professor William Treanor, concluded: "The sheer number of these decisions non simply belies the notion that the institution of judicial review was created by Chief Justice Marshall in Marbury, information technology also reflects widespread acceptance and application of the doctrine."^[41]

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

In Hayburn'southward Instance, 2 U.Southward. (two Dall.) 408 (1792), federal circuit courts held an human activity of Congress unconstitutional for the beginning fourth dimension. Iii federal circuit courts found that Congress had violated the Constitution by passing an human action requiring circuit courtroom judges to determine alimony applications, subject to the review of the Secretary of War. These excursion courts found that this was non a proper judicial function under Commodity Three. These 3 decisions were appealed to the Supreme Court, but the appeals became moot when Congress repealed the statute while the appeals were pending.^[42]

In an unreported Supreme Court determination in 1794, The states v. Yale Todd,^[43] the Supreme Courtroom reversed a pension that was awarded nether the same pension human action that had been at outcome in Hayburn's Case. The Courtroom apparently decided that the act designating judges to decide pensions was not ramble because this was not a proper judicial function. This apparently was the first Supreme Court example to find an act of Congress unconstitutional. However, there was not an official report of the case and it was non used as a precedent.

Hylton five. United States, 3 U.S. (3 Dall.) 171 (1796), was the first case decided by the Supreme Court that involved a claiming to the constitutionality of an human action of Congress. It was argued that a federal taxation on carriages violated the ramble provision regarding "direct" taxes. The Supreme Court upheld the tax, finding information technology was constitutional. Although the Supreme Court did non strike down the act in question, the Courtroom engaged in the process of judicial review by considering the constitutionality of the tax. The instance was widely publicized at the time, and observers understood that the Court was testing the constitutionality of an act of Congress.^[44] Because information technology establish the statute valid, the Court did not have to affirm 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 get-go time struck down a land statute. The Courtroom reviewed a Virginia statute regarding pre-Revolutionary war debts and establish that it was inconsistent with the peace treaty between the United states and Bully Britain. Relying on the Supremacy Clause, the Court found the Virginia statute invalid.

In Hollingsworth five. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Courtroom found that it did not have jurisdiction to hear the case because of the jurisdiction limitations of the Eleventh Subpoena. This belongings could exist viewed every bit an implicit finding that the Judiciary Act of 1789, which would have immune the Courtroom jurisdiction, was unconstitutional in part. Withal, the Court did non provide whatsoever reasoning for its conclusion and did not say that it was finding the statute unconstitutional.^[46]

In Cooper 5. Telfair, 4 U.South. (iv 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 take, individually in the circuits decided, that the Supreme Court tin declare an act of Congress to be unconstitutional, and therefore invalid, simply there is no adjudication 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 serial of resolutions asserting that the states have the ability to determine whether acts of Congress are constitutional. In response, ten 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, not in the state legislatures. For instance, Vermont's resolution stated: "It belongs not to state legislatures to determine on the constitutionality of laws made by the full general government; this power beingness exclusively vested in the judiciary courts of the Union."^[49]

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

Marbury five. Madison [edit]

Marbury was the first Supreme Court decision to strike downward an act of Congress as unconstitutional. Master Justice John Marshall wrote the opinion for a unanimous Court.

The example arose when William Marbury filed a lawsuit seeking an social club (a "writ of mandamus") requiring the Secretarial assistant of State, James Madison, to deliver to Marbury a commission appointing him as a justice of the peace. Marbury filed his case direct in the Supreme Court, invoking the Courtroom's "original jurisdiction", rather than filing in a lower court.^[50]

The constitutional issue 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. So, nether the Judiciary Act, the Supreme Court would have had jurisdiction to hear Marbury'south case. Notwithstanding, the Constitution describes the cases in which the Supreme Courtroom has original jurisdiction, and does not include mandamus cases.^[52] The Judiciary Act therefore attempted to give the Supreme Court jurisdiction that was non "warranted by the Constitution."^[53]

Marshall's stance stated that in the Constitution, the people established a authorities of limited powers: "The powers of the Legislature are defined and express; 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 whatsoever time exist passed by those intended to be restrained." Marshall observed that the Constitution is "the cardinal and paramount police of the nation", and that it cannot exist altered by an ordinary act of the legislature. Therefore, "an deed 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. Information technology would be an "applesauce", said Marshall, to require the courts to apply a law that is void. Rather, it is the inherent duty of the courts to interpret and apply 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 police force is. Those who apply the dominion to particular cases must, of necessity, expound and translate that rule. If two laws conflict with each other, the Courts must make up one's mind on the performance of each.

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

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary human action, must govern the example to which they both apply. ...^[55]

Marshall stated that the courts are authorized past the provisions of the Constitution itself to "look into" the Constitution, that is, to interpret and use it, and that they take the duty to turn down to enforce whatsoever laws that are contrary to the Constitution. Specifically, Article Iii provides that the federal judicial power "is extended to all cases arising nether the Constitution." Commodity Six requires judges to take an oath "to support this Constitution." Article Six as well states that merely laws "made in pursuance of the Constitution" are the law of the state. Marshall concluded: "Thus, the detail phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to exist essential to all written Constitutions, that a police repugnant to the Constitution is void, and that courts, also equally other departments, are jump by that musical instrument."^[56]

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

[T]he institution of the judiciary needed to exist summoned upward out of the constitutional vapors, shaped, and maintained. And the Dandy Main Justice, John Marshall—non single-handed, but commencement and foremost—was there to do it and did. If any social process can be said to have been 'done' at a given time, and by a given act, it is Marshall's achievement. The fourth dimension was 1803; the human activity was the decision 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'south 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 before Marbury. Including the Supreme Court in Hylton v. United states. One scholar concluded: "[B]efore Marbury, judicial review had gained broad support."^[58]

Judicial review afterward Marbury [edit]

Marbury was the point at which the Supreme Court adopted a monitoring function over government deportment.^[59] Subsequently the Court exercised its power of judicial review in Marbury, information technology avoided hitting downwardly a federal statute during the next fifty years. The court would not practice so again until Dred Scott 5. Sandford, threescore U.S. (19 How.) 393 (1857).^[60]

However, the Supreme Court did exercise judicial review in other contexts. In particular, the Court struck down a number of state statutes that were opposite to the Constitution. The first instance in which the Supreme Court struck down a state statute as unconstitutional was Fletcher v. Peck, 10 U.S. (vi Cranch) 87 (1810).^[61]

In a few cases, state 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 authority to review state court decisions. They asserted that the Judiciary Act of 1789, which provided that the Supreme Courtroom could hear certain appeals from state courts, was unconstitutional. In effect, these country courts were asserting that the principle of judicial review did not extend to allow federal review of country court decisions. This would accept left the states free to adopt their own interpretations of the Constitution.

The Supreme Court rejected this argument. In Martin v. Hunter'southward Lessee, 14 U.S. (1 Wheat.) 304 (1816), the Court held that under Article III, the federal courts take 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 country or federal courts. The Courtroom issued another decision to the same effect in the context of a criminal case, Cohens v. Virginia, 19 U.S. (vi Wheat.) 264 (1821). It is at present well established that the Supreme Court may review decisions of country courts that involve federal constabulary.

The Supreme Court also has reviewed deportment of the federal executive branch to determine whether those deportment were authorized by acts of Congress or were beyond the dominance granted by Congress.^[62]

Judicial review is at present well established as a cornerstone of constitutional law. Every bit of September 2017, the United States Supreme Courtroom had held unconstitutional portions or the entirety of some 182 Acts of the U.S. Congress, the most recently in the Supreme Courtroom's June 2017 Matal 5. Tam and 2019 Iancu v. Brunetti decisions striking down a portion of July 1946's Lanham Act as they borrow on Liberty of Speech.

Criticism of judicial review [edit]

Although judicial review has now become an established part of constitutional police in the United states of america, there are some who disagree with the doctrine.

I 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 do non 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 authority to do information technology, that I mutter of, equally I do about positively deny that they accept any such power; nor can they find any affair in the Constitution, either directly or impliedly, that will back up them, or give them whatsoever color of right to exercise that potency.^[66]

At the Ramble Convention, neither proponents nor opponents of judicial review disputed that whatsoever government based on a written constitution requires some machinery to prevent laws that violate that constitution from being made and enforced. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatever, would exist 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 make 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 be said that the legislative trunk 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 exist answered, that this cannot exist the natural presumption, where information technology is non to be collected from any detail provisions in the Constitution. Information technology is non otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their volition to that of their constituents. It is far more rational to suppose, that the courts were designed to exist an intermediate torso betwixt the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authorisation.^[67]

Since the adoption of the Constitution, some have argued that the power of judicial review gives the courts the power to impose their ain views of the law, without an adequate cheque from whatever other branch of authorities. Robert Yates, a delegate to the Ramble Convention from New York, argued during the ratification process in the Anti-Federalist Papers that the courts would apply the power of judicial review loosely to impose their views about the "spirit" of the Constitution:

[I]n their decisions they volition not 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 court, whatever they may be, will have the strength of police force; because there is no power provided in the constitution, that can right 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:

You lot seem ... to consider the judges as the ultimate arbiters of all ramble questions; a very dangerous doctrine indeed, and 1 which would place us nether the despotism of an oligarchy. Our judges are every bit honest as other men, and not more so. They have, with others, the aforementioned passions for political party, for power, and the privilege of their corps. ... Their power [is] the more dangerous every bit they are in role for life, and not responsible, every bit the other functionaries are, to the constituent control. The Constitution has erected no such single tribunal, knowing that to whatsoever easily confided, with the corruptions of fourth dimension and party, its members would become 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 discipline, during his first countdown address:

[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are fabricated in ordinary litigation between parties in personal deportment the people will have ceased to be their ain rulers, having to that extent practically resigned their Authorities into the hands of that eminent tribunal. Nor is in that location 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 turn their decisions to political purposes.^[70]

Lincoln was alluding here to the case of Dred Scott v. Sandford, in which the Court had struck downwardly a federal statute for the kickoff fourth dimension since Marbury v. Madison.^[sixty]

It has been argued that the judiciary is not the just branch of government that may interpret the meaning of the Constitution.^{[ who? ]} Article VI requires federal and state officeholders to be bound "past Oath or Affirmation, to support 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 have argued that judicial review exclusively by the federal courts is unconstitutional^[71] based on 2 arguments. First, the power of judicial review is non expressly delegated to the federal courts in the Constitution. The Tenth Amendment reserves to the states (or to the people) those powers not expressly delegated to the federal government. The 2nd argument is that the states alone take the ability to ratify changes to the "supreme law" (the U.South. Constitution), and each state's understanding of the linguistic communication of the amendment therefore becomes germane to its implementation and effect, making information technology necessary that us play some office in interpreting its meaning. Under this theory, assuasive only federal courts to definitively acquit judicial review of federal police allows the national government to translate its own restrictions equally it sees fit, with no meaningful input from the ratifying, that is, validating ability.

Standard of review [edit]

In the The states, unconstitutionality is the only ground for a federal court to strike downwards a federal statute. Justice Washington, speaking for the Marshall Courtroom, put it this way in an 1829 case:

We intend to make up one's mind no more than than that the statute objected to in this case is not repugnant to the Constitution of the United states, and that unless information technology be so, this Court has no authority, under the 25th department of the judiciary human action, to re-examine and to reverse the judgement of the supreme court of Pennsylvania in the present example.^[72]

If a state statute conflicts with a valid federal statute, then courts may strike down the state statute every bit an unstatutable^[73] violation of the Supremacy Clause. But a federal courtroom may non strike down a statute absent a violation of federal law or of the federal Constitution.

Moreover, a suspicion or possibility of unconstitutionality is non plenty for American courts to strike down a statute. Alexander Hamilton explained in Federalist 78 that the standard of review should exist "irreconcilable variance" with the Constitution. Anti-federalists agreed that courts would be unable to strike down federal statutes absent a disharmonize with the Constitution. For example, Robert Yates, writing nether the pseudonym "Brutus", asserted that "the courts of the general government [will] be under obligation to observe the laws fabricated by the general legislature non repugnant to the constitution."^[74]

These principles—that federal statutes can only be struck downwards for unconstitutionality and that the unconstitutionality must be clear—were very common views at the time of the framing of the Constitution. For instance, George Stonemason explained during the constitutional convention that judges "could declare an unconstitutional police force void. Simply with regard to every law, still unjust, oppressive or pernicious, which did not come apparently under this description, they would be nether the necessity as Judges to requite it a gratis class."^[25]

For a number of years, the courts were relatively deferential to Congress. Justice Washington put information technology this way, in an 1827 example: "It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, past 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 simply exist deemed unconstitutional in case of a articulate contradiction until the twentieth century, this presumption of constitutionality weakened somewhat during the twentieth century, every bit exemplified by the Supreme Court's famous footnote 4 in United States v. Carolene Products Co., 304 U.Due south. 144 (1938), which suggested that statutes may be subjected to closer scrutiny in certain types of cases. Notwithstanding, the federal courts have not departed from the principle that courts may just strike downward statutes for unconstitutionality.

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

In the federal system, courts may only decide bodily cases or controversies; information technology is not possible to request the federal courts to review a law without at least i party having legal continuing to engage in a lawsuit. This principle means that courts sometimes practise not exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some country courts, such as the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances past 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 case before it could be decided on other grounds, an attitude and exercise exemplifying judicial restraint. Justice Brandeis framed information technology thus (citations omitted):^[77]

The Court adult, for its own governance in the cases inside its jurisdiction, a series of rules under which information technology has avoided passing upon a large part of all the ramble questions pressed upon it for conclusion. They are:

The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, failing because to make up one's mind such questions is legitimate only in the last resort, and as a necessity in the decision of real, earnest, and vital controversy between individuals. It never was the thought that, by ways of a friendly suit, a party browbeaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.

The Court will not anticipate a question of ramble law in advance of the necessity of deciding it. Information technology is not the habit of the court to determine questions of a constitutional nature unless admittedly necessary to a conclusion of the case.

The Courtroom volition non formulate a dominion of constitutional law broader than required past the precise facts it applies to.

The Courtroom volition not pass upon a constitutional question although properly presented by the record, if there is also nowadays some other basis upon which the example may be disposed of ... If a case tin can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or full general law, the Court volition decide only the latter.

The Court will not laissez passer upon the validity of a statute upon complaint of one who fails to testify that he is injured past its operation.

The Court will not pass 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 fatigued in question, and fifty-fifty if a serious doubtfulness of constitutionality is raised, it is a cardinal principle that this Courtroom will kickoff define whether a structure 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 us retain some ability to influence what cases come before the Courtroom. For example, the Constitution at Commodity 3, Section two, gives Congress power to make exceptions to the Supreme Courtroom's appellate jurisdiction. The Supreme Court has historically best-selling that its appellate jurisdiction is defined by Congress, and thus Congress may take power to brand some legislative or executive deportment unreviewable. This is known as jurisdiction stripping.

Some other style for Congress to limit judicial review was tried in Jan 1868, when a bill was proposed requiring a ii-thirds majority of the Courtroom in order to deem any Act of Congress unconstitutional.^[78] The bill was approved past the Firm, 116 to 39.^[79] That measure died in the Senate, partly considering the bill was unclear about how the bill'south own constitutionality would be decided.^[lxxx]

Many other bills have been proposed in Congress that would crave a supermajority in gild for the justices to exercise judicial review.^[81] During the early years of the Us, a 2-thirds bulk was necessary for the Supreme Court to exercise judicial review; because the Court and so consisted of six members, a simple majority and a two-thirds bulk both required four votes.^[82] Currently, the constitutions of two states require a supermajority of supreme court justices in order to exercise judicial review: Nebraska (five out of seven justices) and North Dakota (4 out of five justices).^[81]

Administrative review [edit]

The process for judicial review of federal administrative regulation in the United states of america is gear up forth past the Administrative Procedure Deed although the courts have ruled such as in Bivens v. Six Unknown Named Agents ^[83] that a person may bring a case on the grounds of an implied cause of action when no statutory procedure exists.

Notes [edit]

^ "The Institution of Judicial Review". Findlaw.
^ Congress, United states. "United States Statutes at Big, Volume 1" – via Wikisource.
^ Marbury v. Madison, 5 U.s.a. (one Cranch) 137 (1803).
^ "Marbury 5. Madison – John Marshall – 1803 – AMDOCS: Documents for the Written report of American History".
^ Encounter Congressional Research Services' The Constitution of the Usa, Analysis And Interpretation, 2013 Supplement, pp. 49–50.
^ "Table of Laws Held Unconstitutional in Whole or in Office by the Supreme Courtroom". U.S. Congress. Retrieved February 22, 2021.
^ Prakash, Saikrishna B.; Yoo, John C. (2003). "The Origins of Judicial Review". The University of Chicago Police force Review. 70 (3): 887–982. doi:ten.2307/1600662. ISSN 0041-9494. JSTOR 1600662.
^ Bayard v. Singleton , ane N.C. 5 (Due north.C. 1787).
^ Brown, Andrew. "Bayard five. Singleton: Due north Carolina as the Pioneer of Judicial Review". North Carolina Establish of Constitutional Law. Archived from the original on 2019-08-xvi. Retrieved 2019-08-16 .
^ Prakash and Yoo, "The Origins of Judicial Review", lxx 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 Country Government: People, Process, 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 Law Review p. 939.
^ For case, James Madison referred to "the judges who refused to execute an unconstitutional law" in a Rhode Island instance. Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. ii. New Haven: Yale University Printing. p. 28. Elbridge Gerry noted that "in some states, the judges had actually set aside laws, every bit being against the constitution." Farrand, The Records of the Federal Convention of 1787, vol. 1, p. 97.
^ Corwin, Edward S. (1929). "The "Higher Police force" Background of American Constitutional Law". Harvard Police Review. Harvard Law Review Clan. 42 (iii). doi:10.2307/1330694. ISSN 0017-811X. JSTOR 1330694.
^ While the Constitution does non explicitly authorize judicial review, it also does not explicitly prohibit it, as did the Virginia Constitution of 1776. That Virginia Constitution said: "All power of suspending laws, or the execution of laws, by any dominance, without consent of the representatives of the people, is injurious to their rights, and ought not to exist exercised." Virginia Constitution of 1776 Archived 2008-06-04 at the Wayback Machine via Avalon Projection at Yale Police force School.
^ Come across Marbury 5. Madison, v U.Southward. at 175–78.
^ Come across Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 1. New Oasis: Yale University Press. p. 97.
^ Farrand, The Records of the Federal Convention of 1787, vol. 2, p. 76. Nathaniel Gorham too made comments along these lines. Run across Rakove, Jack N. (1997). "The Origins of Judicial Review: A Plea for New Contexts". Stanford Law 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. Run 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 Plan ultimately morphed into the Presidential veto. In its final class, the executive alone would do the veto, without participation by the federal judiciary.
^ Ibid., p. 93. Delegates approving of judicial review also included James Wilson and Gouverneur Morris, among others. See Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review at 941–43.
^ ^a ^b ^c Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. two. New Haven: Yale University Press. p. 78.
^ Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Law Review, p. 952. The two delegates who disapproved judicial review, John Dickinson and John Mercer, did non propose a provision prohibiting judicial review. During the land ratification conventions, they acknowledged that under the final Constitution, the courts would take the power of judicial review. Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Law Review, p. 943.
^ Raoul Berger found that xx-six Convention delegates supported Constitution review, with half-dozen opposed. Berger, Raoul (1969). Congress five. The Supreme Court . Harvard University Press. p. 104. Charles Bristles counted twenty-five delegates in favor of judicial review and 3 against. Bristles, Charles (1962) [1912]. The Supreme Courtroom 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 it was not going too far to extend the jurisdiction of the Courtroom generally to cases arising under the Constitution and whether it ought non to exist express to cases of a judiciary nature. The right of expounding the Constitution in cases not of this nature ought not to exist given to that department." Farrand, Max (1911). The Records of the Federal Convention of 1787. Vol. 2. New Haven: Yale University Press. p. 430. Madison wanted to clarify that the courts would not accept a gratuitous-floating power to declare unconstitutional any police that was passed; rather, the courts would be able to dominion on constitutionality of laws only when those laws were properly presented to them in the context of a court case that came earlier them. See Burr, Charles, "Unconstitutional Laws and the Federal Judicial Ability", 60 U. Pennsylvania Law Review 624, 630 (1912). No change in the language was fabricated in response to Madison'due south annotate.
^ See Prakash and Yoo, "The Origins of Judicial Review", 70 U. of Chicago Police force 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. 2. Philadelphia: Lippincott. p. 196.
^ Run across Prakash and Yoo, "The Origins of Judicial Review", seventy U. of Chicago Law Review at pp. 973–75.
^ Barnett, Randy, "The Original Pregnant of Judicial Power", 12 Supreme Court Economical Review 115, 138 (2004).
^ 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 give identify to the Constitution." Federalist No. 81 (June 28, 1788)
^ Federalist No. 80 (June 21, 1788)
^ Federalist No. 82 (July ii, 1788)
^ "The Problem of Judicial Review – Education American History". Archived from the original on 2011-06-30. Retrieved 2011-05-11 .
^ Treanor, William Michael (2005). "Judicial Review before "Marbury"". Stanford Police Review. 58 (ii): 455–562. ISSN 0038-9765. JSTOR 40040272.
^ Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review, p. 458.
^ Five of the six Supreme Court justices at that time had saturday as circuit judges in the three excursion court cases that were appealed. All v of them had found the statute unconstitutional in their capacity as excursion judges.
^ There was no official report of the instance. The instance is described in a annotation at the end of the Supreme Court's conclusion in Us v. Ferreira, 54 U.S. (13 How.) 40 (1851).
^ Professor Jack Rakove wrote: "Hylton v. United states of america was evidently a case of judicial review of the constitutionality of legislation, in an area of governance and public policy far more sensitive than that exposed by Marbury, and it was a example whose implications observers seemed to grasp." Meet Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Police Review at 1039–41.
^ Justice Chase's opinion stated: "[I]t is unnecessary, at this time, for me to make up one's mind, whether this courtroom, constitutionally possesses the power to declare an act of congress void, on the ground of its beingness fabricated contrary to, and in violation of, the constitution."
^ See Treanor, "Judicial Review Before Marbury", 58 Stanford Law Review, p. 547.
^ Chase's statement most decisions by judges in the circuits referred to Hayburn's Instance.
^ Seven 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 2nd 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 Bailiwick of jersey). Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244. . The other 4 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-nine. . 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 Isle, 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). "Gimmicky Stance of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244.
^ For a more detailed description of the case, see Marbury v. Madison.
^ There were several non-constitutional problems, including whether Marbury was entitled to the commission and whether a writ of mandamus was the appropriate remedy. The Courtroom's stance dealt with those issues first, finding that Marbury was entitled to the commission and that mandamus was a proper remedy. Run across Marbury v. Madison.
^ 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 take appellate jurisdiction."
^ Marbury, 5 U.Due south. at 175–176.
^ Marbury, 5 U.S., pp. 176–177.
^ Marbury, 5 U.S., pp. 177–178.
^ Marbury, five U.S., 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 Police force Review at 555. Encounter also Rakove, "The Origins of Judicial Review: A Plea for New Contexts", 49 Stanford Constabulary Review at 1035–41.
^ Laura Langer, Judicial Review in State Supreme Courts: A Comparative Written report (Albany: State Academy of New York Press, 2002), p. 4
^ ^a ^b Run into Menez, Joseph et al., Summaries of Leading Cases on the Constitution, page 125 (2004).
^ The Supreme Court later on decided that a number of other cases finding state statutes unconstitutional. Run into, for example, Sturges v. Crowninshield, 17 U.South. (4 Wheat.) 122 (1819), McCulloch five. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
^ Meet Little v. Barreme, vi U.S. (two Cranch) 170 (1804) (the "Flying Fish case").
^ The Supreme Court and the Constitution, Charles A. Beard, pp. 70-71
^ Judicial Review and Not-enforcement at the Founding, University of Pennsylvania, p. 496
^ Academy of Pennsylvania Law Review and American Law Register
^ Corwin on the Constitution, Edward Samuel Corwin
^ Hamilton, Alexander. Federalist #78 (June xiv, 1788).
^ Yates, Robert (writing as "Brutus"). Anti-Federalist Papers(31 Jan 1788) Archived 17 Baronial 2007 at the Wayback Machine.
^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820).
^ Lincoln, Abraham. First Inaugural Accost Archived 2007-08-17 at the Wayback Car (March 4, 1861).
^ Run into West.W. Crosskey, Politics and the Constitution in the History of the United States (Chicago: 1953), chs. 27–29, with which compare Hart, Volume Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the debate on the subject is Westin, "Introduction: Charles Bristles and American Debate over Judicial Review, 1790–1961", in: C. Bristles, The Supreme Court and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), ane–34, and bibliography at 133–149. Come across more at: http://constitution.findlaw.com/article3/annotation13.html#f576
^ Satterlee v. Matthewson, 27 U.S. 380 (1829).
^ "Unstatutable – Definition and More than from the Free Merriam-Webster Dictionary". Merriam-Webster . Retrieved viii May 2013.
^ "Article iii, Section 2, Clause 2: Brutus, no. 14".
^ Ogden five. Saunders, 25 U.South. 213 (1827).
^ New York State Bd. of Elections 5. Lopez Torres, 552 U.S. ___, ___ (2008) (Stevens, J., concurring).
^ Ashwander v. Tennessee Valley Authorisation, 297 U.S. 288, 346–9 (1936) (Brandeis, concurring) (citing cases)
^ Schwartz, Bernard. A History of the Supreme Court, page 141 (Oxford University Press United states 1995).
^ McPherson, Edward. A political manual for 1868, pages 350–351 (Philp & Solomons 1868).
^ Goldstone, Lawrence. Inherently Unequal: The Betrayal of Equal Rights past the Supreme Court, 1865–1903, pages 55–56 (Bloomsbury Publishing U.s.a. 2011).
^ ^a ^b Caminker, Evan. "Thayerian Deference to Congress and Supreme Courtroom Supermajority Rule: Lessons From the By Archived 2012-03-09 at the Wayback Machine", 78 Indiana Law Periodical 73 (2003).
^ Nackenoff, Ballad. "Ramble Reforms to Heighten Democratic Participation and Deliberation: Not All Clearly Trigger the Article V Amendment Procedure Archived 2012-03-xix at the Wayback Machine", 67 Maryland Law Review 62, 65 (2007).
^ 403 U.S. 388 (1971).