For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a strong argument that the practice is grounded in the majority’s will, just as the Founders’ Constitution is. But if it is not—if, as Alexander Bickel and others have claimed, judicial review was a sleight-of-hand creation of Chief Justice Marshall in Marbury v. Madison—then judicial review is either counter-majoritarian or else must find its popular grounding somewhere other than in the ratification of the Constitution by “We the People.”
Yet, despite the prominence and the significance of the academic debate about whether judicial review was part of the original understanding, the answer to the controversy is surprisingly clear: contrary to the Bickelian point of view, judicial review was not created in Marbury. While there is a strong argument that the Constitution’s text contemplates judicial review of federal legislation—and it seems clear that the Supremacy Clause assumes that the federal judiciary has the power to review state legislation—the critical evidence concerning the acceptance of judicial review involves judicial practice. In the years before Marbury, exercises of judicial review were surprisingly common and generated surprisingly little controversy in either the courts or the political arena. As I have written recently, there were thirty-one cases between ratification and Marbury in which state and federal courts invalidated statutes, a number far greater than previously realized. Similarly, Maeva Marcus has shown that, in the first Congresses, Congressmen repeatedly took the position that the courts would review statutes for constitutionality. While acceptance of judicial review was not universal, it is striking—given the prevalence of the view that judicial review was created in Marbury—that the power was exercised so frequently and that the opposition to the exercise of that power was so limited.
116 Yale L.J. (The Pocket Part) 218-222 (2007)
Scholarly Commons Citation
Treanor, William Michael, "Original Understanding and the Whether, Why, and How of Judicial Review" (2007). Georgetown Law Faculty Publications and Other Works. Paper 1031.