Judicial Review: Constitutional Law 101, Explained by a Real Lawyer, Not a Facebook One

No matter what your angry conservative uncle says Judicial Review is a thing, and a real lawyer is here to explain why.


The Constitution provides broad guidance on what the role of government is and what the rights and liberties of citizens are. Much of constitutional law is about judicial review power, based on Article Three of the Constitution and the case Marbury v. Madison (to be discussed later). The Supreme Court has the constitutional power to have the final say on what the Constitution means and can overturn past decisions and laws, even if the national public disagrees.

Q: Why should we give this much power to these un-elected officials?

Article Three of the Constitution provides for it.

Q: Are there alternatives to Supreme Court decisions such as legislation?

Yes, amending the Constitution (Article 5) or passing new laws.

Q: What functions does the Constitution perform?

The Constitution establishes the powers and constraints of the national branches of government (separation of powers), creates the balance between national and state governments by splitting sovereign power between the states and the federal government (a concept known as federalism), and establishes and protects individual rights via express guarantees of the Bill of Rights. However, it should be noted that all of the rights contained in the Bill of Rights are subject to government infringement. Whether or not the government can constitutionally infringe on the right depends its fundamental nature, the nature of the infringement, and the government interest at hand (another topic for a later post). Whenever a federal court strikes down a state law on the grounds that it violates individual rights, it involves all of the major functions of the Constitution, and applies to the entire country and all the branches of state government. The first three articles of the Constitution lay out (constitute) the powers and constraints of the three branches of Gov’t: Article 1 – Legislature, Article 2 – Executive, Article 3 – Judicial.

Government power is sub-divided between the different branches of government to constrain it. Thus, no unit or agency of government is powerful enough to impede on individual rights on it’s own. There are some exceptions, but in general a branch of government cannot operate without the support of another branch of government. For example, if Congress passes a bill, the President must sign it for it to become a law. The legislative and executive branches must act in concert. Another example of the branches acting in concert concerns the enforcement of laws. Although the judiciary issues decisions, the task of enforcing them is left to the executive branch. For instance, when the judicial branch issued Brown v. Board of Ed., which desegregated schools, it relied on local officials to enforce its decision. In addition to separating the branches, we have a Congress that is sub-divided (bi-cameral) making it more difficult for the government to do anything. Finally, as discussed above, the Supreme Court has the final say to “make” constitutional law by its opinions. This body of law is know as “case law” and has the full force of law just like any codified statute.

Our Constitution is entrenched, meaning it is very hard to change. This is for protection purposes and thus makes the rights protected by the Constitution semi-permanent (although there are many exceptions). This also leads to counter-majoritarian problems because the common notion in a democracy, is that majority rule is something positive. There are many topics addressed in studying constitutional law, such as: 1) The ongoing importance of judicial review power, because the Supreme Court can nullify both executive actions and legislative ones (sometimes referred to as judicial tyranny). Moreover, the Supreme Court has the last word on the Constitution because of the position they occupy. 2) The ongoing debate about whether judicial review power should be exercised in certain controversial contexts. 3) The primary and secondary sources of constitutional law, such as the text of the Constitution, the Framers’ intent, and precedents set by Supreme Court case law.

Marbury v. Madison (5 US 137, 1803)

The primary source of constitutional law is the Constitution itself, however the Constitution does not say anything explicit about the power of judicial review. Instead, Chief Justice Marshall indirectly finds that the power of judicial review exists based on the Supreme Court’s interpretation of the Constitution.

The Factual and Political Background of Marbury v. Madison

In the election of 1800, John Adams who belonged to the Federalist Party (the group that wanted a larger central government) lost to Thomas Jefferson, and his party, the Republicans (the group that wanted smaller, state controlled  governments). The Federalists, who were still in control of Congress for the lame-duck session, were angry that they lost control of the Presidency and the House of Representatives, so they decided to take control of the judiciary by amending Section 13 of the Judiciary Act of 1789. This allowed President Adams to make last minute appointments to the judicial branch. Adams appointed John Marshall (a Federalist) who was confirmed as Chief Justice, but who was still Secretary of State. Marshall was supposed to deliver these commissions for office, including one to William Marbury, but failed to do so. When Madison became the new Secretary of State he refused to deliver the commissions, thus denying Marbury his appointment. After being denied his commission, Marbury went to the Supreme Court and asked it to issue him a writ of mandamus, an order, which would force Madison to deliver his commission (The Judiciary Act of 1789 Section 13 gave the Supreme Court the power to issue such a writ to anyone holding federal office). Marshall was now the Chief Justice and had to decide whether the Supreme Court had the Constitutional power to review the case and to issue the writ.

The Issue of Judicial Review

Once Marbury arrived at the Supreme Court, the Court needed to decide whether they could hear the case. Thus,Marbury v. Madison became the landmark case that established the Court’s power under the Constitution to hear and decide matters of constitutional law. However, before deciding the ultimate issue about the Court’s review power, also known as jurisdiction, the Court needed to determine whether or not Marbury had a right to the commission and if he did whether they could grant him a remedy, in the form of a writ. Ultimately, the Court held that Marbury did in fact have a right, but went on to say that they had no power to grant him a remedy, because Section 13 of the Judiciary Act passed by Congress, unconstitutionally gave the Court a power that it was not entitled to. In so holding, Marbury was not granted his appointment, but the power of judicial review was established.
Marshall started his opinion by discussing the Constitution’s grant of power to the judiciary. Article Three specifically lays out what cases the judiciary and the Supreme Court does and does not have original and/or appellate jurisdiction over. Congress further grants the Supreme Court jurisdiction through the Judiciary Act. Marshall determines that the Supreme Court is the appropriate branch to hear such cases, because the Court is vested with the ability to interpret and determine the law. Therefore, Marshall concludes that the Constitution grants the Supreme Court judicial review power. However, because Marshall was modest about judicial power, he also specified that the Court could not review acts which are only “politically examine-able” because “the President is vested with certain important political powers” and those political powers are not review-able by the Court. Thus, Marshall determined that in some circumstances the Court could interpret the law, and in others, they could not. Specifically, Marshall found that because particular actions of the executive branch are subject to review by the people, in the form of the vote, they are not subject to judicial review. He comes to the conclusion that because the executive branch is politically accountable to the people, if the people do not like the decisions of the executive, they can vote the individual out of office or lobby for a different result through the political arena.
The most important question that Marbury v. Madison answers is whether the judiciary should have the authority to declare Congressional statutes unconstitutional. Marshall answers this question in the affirmative.  He does this by concluding that the Constitution is regulatory by its nature and thus subject, by its grant of power in Article Three and by Congress, to the review of the judiciary. Marshall states, “it is emphatically the province and duty of the judicial department to say what the law is.”

Q: Why does Marshall do this?

1) The Constitution is a written document which sets out written limits on government power that would not be meaningful without judicial review. Although the fact that it is written is not necessarily determinative of who decides what it means, the branch vested with the power to apply the law (the judicial branch) must be able to determine its validity. However, it should be noted that sometimes the Court interprets the law by avoiding ruling on a particular constitutional issue.
2) The Constitution gives the court the power to hear all cases arising under it.
3) The Constitution requires judges to take an oath to support it (Article 6)
4) If you read the Constitution as not granting judicial review power, then you will be lead into a circular argument about who has the final say on what its provisions mean.
5) The Supremacy Clause in Article 6 makes the Constitution and all case decisions that arise under it the supreme law of the land. Thus, the Constitution sets out the hierarchy of laws in the United States and therefore establishes that Supreme Court decisions (constitutional case law) carry the force of law.

Q: Why does this matter?

Marbury v. Madison  is still important today for the very reasons set forth above. It grants the Supreme Court the power of judicial review over the laws and determines that it is inherently the province of the Supreme Court to interpret the Constitution and to decide the constitutionality of laws which have been passed by the legislature and signed by the President.

DISCLAIMER: The information in this article is provided for general informational purposes only and is not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied.

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