A. Judicial review is the very essence of the existence of the Supreme Court (and "inferior" federal courts) and is clearly provided for in our Constitution. See generally Article III and
Article VI of the U.S. Constitution. This is spelled out at length in
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) and in
The Federalist #78.
B. Where exactly in the Constitution is judicial review found? Well, let's quickly note that
Article VI tells us that: "This Constitution ... shall be the supreme Law of the Land." Let us also note that Article I and Article II fail to give final power to interpret the Constitution to either the executive or legislative branches of government.
So, let's now turn to
Article III, Section 1: "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 time ordain and establish. ..."
It is inherent in the idea of judicial power that the Court has the power to interpret law. As Justice Marshall declared in
Marbury, "It is emphatically the province and the duty of the judicial department to say what the law is." That this was intended by the Founders to be so read is confirmed by
Federalist #78: "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 law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."
One also can look to the overall scheme of the Constitution, particularly the setting up of checks and balances. The judicial power to interpret law is the judiciary's primary check on the other branches. Without it, the system of checks and balances fails. Regardless, in
Article III, Section 2, we are informed: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ..." Thus, any doubt that the Court has the power in both Law and Equity to rule on cases involving the meaning of the Constitution is removed. Such cases are emphatically within the judicial Power.
Finally, in
Article III, Section 2, we learn: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. " Thus, the judicial power includes the jurisdiction over both fact and law questions in cases arising under the Constitution. Again, the Court has the power to interpret law, including the Supreme Law of the Land.
C. Where did the concept of judicial review come from? Judicial review did not spring full-blown from the brain of Chief Justice Marshall in
Marbury. The concept had been long known. The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. Judicial review in the English common law originated at least as early as
Dr. Bonham's Case in 1610. Judicial review was utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters. In 1761 James Otis, in the
Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on
Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. And there were several instances known to the Founders of state court invalidation of state legislation as inconsistent with state constitutions.
Practically all of the Founders who expressed an opinion on the issue in the Constitutional Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, and I have already noted the power of judicial review was explicity set forth in
The Federalist Papers. Similar statements affirming the power of judicial review were made by Founders duing the state ratifying conventions. In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, and in other debates questions of constitutionality and of judicial review were prominent.
And, in the 200 years since
Marbury, the power of judicial review has been accepted and further expounded. If it were truly a mere power-grab, it could have long ago been nullified. Objections to judicial review motivated by a dislike for a specific line of caselaw are both historically inaccurate and rather tedious.
D. Is judicial review valid? Another case you might check out that confirms the Court's power of judicial review is the unanimous decision in
Cooper v. Aaron, 358 U.S. 1 (1958):
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.
. . .
However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.
No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.
E. More on the history of judicial review. I've already established that judicial review was not a new idea and had existed under common law. Here is more from Currie,
The Constitution in the Supreme Court: The Powers of the Federal Court 1801-1835, 49 U. Chi. L. Rev. 646, 655-656 (1982):
The Privy Council had occasionally applied the ultra vires principle to set aside legislative acts contravening municipal and colonial charters. State courts had set aside state statutes under constitutions no more explicit about judicial review than the federal. The Supreme Court itself had measured a state law against a state constitution in Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), and had struck down another under the supremacy clause in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); in both cases the power of judicial review was expressly affirmed. Even Acts of Congress had been struck down by federal circuit courts, and the Supreme Court had reviewed the constitutionality of a federal statute in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). Justice James Iredell had expressly asserted this power both in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), and in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), and [Justice] Chase had acknowledged it in Cooper. In the [Consitutional] Convention, moreover, both proponents and opponents fo the proposed Council of Revision had recognized that the courts would review the validity of congresssional legislation, and Alexander Hamilton had proclaimed the same doctrine in The Federalist.
F. Also, I'll note the following from A. Bickel,
The Least Dangerous Branch 15-16 (1965):
[It] is as clear as such matters can be that the Framers of the Constitution specifically expected that the federal courts would assume a power -- of whatever exact dimensions --to pass on the constitutionality of actions of the Congress and the President, as well as of the several states. Moreover, not even a colorable showing of decisive historical evidence to the contrary can be made. Nor can it be maintained that the language of the Constitution is compelling the other way.
(NOTE: In writing these points, particularly the overview of some of the history of judicial review, I've relied on numerous sources beyond the original sources linked above. I wouldn't claim to have known all of the above off the top of my head.)