Every so often I’m asked whether the Founders anticipated judicial review. In other words, whether the Founders expected the courts to void laws they found unconstitutional.
The clear answer is “yes.” During the colonial era, each colony was governed by its charter, which was a kind of constitution for the colony. Colonial laws in violation of the charter were understood to be void. So also were laws that violated fundamental documents in the British Constitution, such as Magna Carta.
During the ratification debates, both Federalists and Anti-Federalists assumed that the courts would have power to void unconstitutional laws. Probably the most famous example is Federalist No. 78, in which Alexander Hamilton wrote:
By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
During the Virginia ratifying convention, Federalist George Nicholas responded to fears that the federal government might exceed its powers by saying,
But, says he [Anti-Federalist Patrick Henry], who is to determine the extent of such powers? I say, the same power which, in all well-regulated communities, determines the extent of legislative powers. If they exceed these powers, the judiciary will declare it void, or else the people will have a right to declare it void.
Anti-Federalist George Mason, discussing ex post facto laws, argued at the same convention, “Will it not be the duty of the federal court to say that such laws are prohibited?” And at the same gathering Federalist John Marshall argued that Congress could not exceed its enumerated powers:
If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under [congressional] jurisdiction. They would declare it void.
In the years before the first case in which the Supreme Court struck down a federal law (Marbury v. Madison, 1803), there were over thirty episodes in which American courts voided state or federal laws for unconstitutionality. See William Michael Treanor, Judicial Review Before Marbury, 58 Stanford L. Rev. 455 (2005).
The occasional claim that the Framers rejected judicial review at the Philadelphia convention seems arise from misunderstanding the Framers’ decision to reject a council of revision. A council of revision was a system that then existed in some states as a substitute for the executive veto. It was a panel of executive and judicial officers who reviewed a bill before it became law. Like an executive when he considers whether to sign or veto a bill, the council could consider issues of policy and drafting as well as constitutionality.
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Elbridge Gerry argued against a council of revision, and his argument shows how well accepted judicial review was. According to James Madison’s notes,
Mr. Gerry doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had set aside laws as being agst. the Constitution. This was done too with general approbation. It was quite foreign from the nature of [the] office to make them judges of the policy of public measures.
The convention followed Gerry’s advice and adopted the presidential veto instead of a council of revision.
“If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under [congressional] jurisdiction. They would declare it void.”
I think this one line shows why courts can strike down federal laws which is when they are outside the enumerated powers. Its another piece of ammo we can use against the left to prove that the federal government has limited powers strictly defined by the constitution.
My next question is why would they allow the federal government to establish and ordain lower courts and, at the same time, created appellete exceptions for the supreme court for them. This ability to create exceptions seems to cut off the supreme courts authority over some cases and is probably a check on their own power.
Honestly, I think nullification is a much better way to check the federal government’s power than judicial review. People must realize that the federal government isn’t important in our system. It is the states themselves and allowing any state to nullify a federal law maintains a proper federalist system.
@onetenther Enter America’s 19th century Civil War. Nullification appears more a tool of confederation. That said, if federal courts properly uphold the constitution’s separation of powers between the states and central government, then our founders’ federalism stands its best chance. Let’s “HOPE” the Obamas of this world don’t succeed in further dividing the nation with their socialist wannabe overreaching policies.
@West Texan Nullification is not seccession. No one is attempting to leave the union. It is merely an attempt to prohibit the enforcement of unconstitutional federal laws. It still allows the constitution’s authority over the states to exist which means states using nullification are still subject to the constitution’s authority. No one is attempting to void that.
@onetenther Your comment is appreciated. My question is who gets to decide if a state’s nullifying action is reasonable? If Article 6 holds all laws of the U.S. as supreme, who makes the final judgement on federal limits? The misnomered anti-federalist were on target as the ratified constitution offered no specific guarantees. My rationale for viewing the Bill of Rights as the critical keystone which supports and gives legitimacy to the rest of the founders’ constitution. Absent this structural element, the U.S. Constitution wouldn’t have been worth the paper it was written on. This reality has been well demonstrated by the socialist wannabes’ subversive tactics throughout the twentieth, and now the twenty-first centuries.
@West Texan @onetenther @Lex_Rex
We have a “nullification commission” proposal that would establish a kind of state grand jury to hear complaints of usurpation by federal actors. A finding that the action was unconstitutional triggers noncooperation by state actors. That would provide a process for organizing noncooperation. See http://nullifynow.net
@Jon_Roland @onetenther @Lex_Rex I like the compact idea. Thanks for sharing.
@West Texan Article 6 does NOT hold “all laws of the US as supreme” as you mentioned.
We have many articles on this subject – but here’s one for starters:
http://tenthamendmentcenter.com/2010/03/29/whos-supreme-the-supremacy-clause-smackdown/
@Michael Boldin Thanks for sharing Brion McClanahan’s well written and informative article. I especially enjoyed the quote by William Davie of North Carolina, ” … Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations.”.
Davie’s statement clearly answered my earlier question to Steve Palmer’s commentary “When are federal laws supreme?”.
@onetenther Your comment is appreciated. My question is who gets to decide if a state’s nullifying action is reasonable? If Article 6 holds all laws of the U.S. as supreme, who makes the final judgement on federal limits? The misnomered anti-federalist’s were absolutely correct that the ratified constitution offered no specific guarantees. The Bill of Rights is the crucial keystone that supports the rest of the founders’ constitutional by-laws. Absent this structural element, the U.S. Constitution wouldn’t have been worth the paper it was written on. This reality has been well demonstrated by the socialist wannabes’ subversive tactics throughout the twentieth, and now the twenty-first centuries.
@onetenther Your comment is appreciated. My question is who gets to decide if a state’s nullifying action is reasonable? If Article 6 holds all laws of the U.S. as supreme, who makes the final judgement on federal limits? The misnomered anti-federalist’s were absolutely correct that the ratified constitution offered no specific guarantees. The Bill of Rights is the crucial keystone that supports the rest of the founders’ constitutional by-laws. Absent this structural element, the U.S. Constitution wouldn’t have been worth the paper it was written on. This reality has been well demonstrated by the socialist wannabes’ subversive tactics throughout the twentieth, and now the twenty-first centuries. (edited)
@onetenther (Earlier comment edited here) Your comment is appreciated. My question is who gets to decide if a state’s nullifying action is reasonable? If Article 6 holds all laws of the U.S. as supreme, who makes the final judgement on federal limits? The misnomered anti-federalist were absolutely correct that the ratified constitution offered no specific guarantees. The Bill of Rights is the crucial keystone that supports the rest of the founders’ constitutional by-laws. Absent this structural element, the U.S. Constitution wouldn’t have been worth the paper it was written on. This reality has been well demonstrated by the socialist wannabes’ subversive tactics throughout the twentieth, and now the twenty-first centuries.
@onetenther (Earlier comment edited here) Your comment is appreciated. My question is who gets to decide if a state’s nullifying action is reasonable? If Article 6 holds all laws of the U.S. as supreme, who makes the final judgement on federal limits? The misnomered anti-federalist were absolutely correct that the ratified constitution offered no specific guarantees. The Bill of Rights is the crucial keystone that supports the rest of the founders’ constitutional by-laws. Absent this structural element, the U.S. Constitution wouldn’t have been worth the paper it was written on. This reality has been well demonstrated by the socialist wannabes’ subversive tactics throughout the twentieth, and now the twenty-first centuries.
A Judge is only as good at the Constitution as they apply it to their personal life for no law is above LIFE.
My understanding of my constitutionality is my personal LIBERTY as LIFE to be FREE from any arbitrary laws made up by some congress. That these rules stated are to limit what congress may do, what a senate may do, what judges may do and what Presidents do. it applies to my life by allowing me to make my own ideas and decisions how to sustain my own community within a Republic with a very limited governing body of my peers (who are of my equal capacity) and not of some made up authority over LIFE.
Why are we so insistent on an interpretation of symbols over how it applies to each and every one of us? When do we view the damn mirror and realize I am the full authority over my ideas and my decisions. That no other in my community, in my county, state, country, government or in the whole world has any more authority and is equal in this capability.
The insistence I see is an idea I must be right and some other must be wrong in an argument of symbolism instead baring the soul as I sit here before you as LIFE. My Liberty is simply my allowance to LIVE this LIFE. These constitutional statements limit those in a public office from intruding on my LIFE.
The Constitution by REASON declares their restrictions not to determine if or if not, but to clearly analyze and understand how it applies to their personal Liberty (freedom from any such authority).
The fact that so many make it far more complicated than this are up to some agenda of alteration, interpretations to gain authority over which by acts opposes my constitutionality. Stop viewing it as battle of words and start LIVING it as a way of every day LIFE.
I declare to these Judges their Duty is to uphold their own limits, and to stop others from intruding into the lives in each community and allow these communities within these states to create their own local governing body of PEERs and lets us stop all this authority of he says and she says so. I the LIFE of this community declare I am to be free of any such authority over me and my constitution verifies this by your own LIMITS within it.
Now BE HONEST in this mirror as the LIFE you are.
“The powers not delegated to the United States by the Constitution, nor prohibited by it [the Constitution] to the States, are reserved to the States respectively, or to the people.”
Websters 1828 Dictionary ( http://1828.mshaffer.com/d/search/word,delegate )
DELEGATE, v.t. [L. To send.]
1. To send away; appropriately, to send on an embassy; to send with power to transact business, as a representative. The President delegated three commissioners to the court of St. Cloud.
2. To entrust; to commit; to deliver to anothers care and exercise; as, to delegate authority or power to an envoy, representative or judge.
(KEYWORD: “entrust”)
delegated
DELEGATED, pp. Deputed; sent with a trust or commission to act for another; appointed a judge; committed, as authority.
http://www.1215.org/lawnotes/lawnotes/pvcright.htm
http://www.1215.org/lawnotes/lawnotes/example/judnot.htm
The stinking “Federal” government has NO authority to re-write the Constitution of the United States of America. ALL ATTEMPTS TO DO SO (including ObamaDontCare), ARE TREASONOUS!
Yes, Congress should only pass laws that are constitutional and the Supreme Court should strike down unconstitutional laws and unconstitutional procedures that deliver iinjustice. Sorry to be a little off subject but justice as often delivered in lower courts to defendants is so lacking in honesty that bigger problems with the Supreme Court seem not to matter when local injustice in the courtroom is the elephant in their house. My main point: why are not all juries required to be handed the written words of the Law that the defendant has been charged with violating which would keep the prosecutot and/or judge from rewording the law to make the law as presented to the jury to fit the agreed on or alleged actions of the defendant? Also which state(s) have the best procedures for allowing a defendant to effectively represent himself in lower/magistrate/summary court cases? “Been there, received that (recently)” colemanwh@gmail.com
One portion of an Act may be unconstitutional, but that does not necessarily mean the entire Act is unconstitutional if it contains a severance clause. For instance, the portion of the various states Dental Practice Act is unconstitutional where it declares that only licensed dentists may provide full and/or partial denture services to the public. That particular portion of the Act is unconstitutional for the simple reason there is no proof that anyone has ever been harmed by a denturist or their occupation of denturitry. Therefore, since there is no proven potential for harm to anyone, denturists, nationwide, have the constitutional authority to practice their craft on whomever wants to contract with them.
@Keith Allison Once again, “Obamacare” is not about healthcare nor dentistry. It’s about federal overreach into states’ domestic affairs. The entire law is unconstitutional, not to mention completely useless without its individual mandate. Justice Kennedy verbalized well the Supreme Court’s position in deciding the case.
The people have all the power.
I guess all those hippies shouting “Power to the people” were on to something
The Supreme Court yes, the lower courts no i believe.
They should NOT have to, but this MORON in Chef is try ing to bend them and HOPE no one catches him ASSHAT
Yes, it is what I talked about. More need to become aware.
The real issue is that our politicains at all levels should know not to cross those lines and they anyhow and then it gets thrown into the courts.
The three branches of the federal government have been infiltrated by two factions of the same criminal organization and have thus created the 3 branches of the Republi-Crat Party. Party line is all we have to hope.
Criminals watching criminals watching criminals.
“Judicial review” is only constitutional review done by judges, a duty we all have to help enforce the law and to decide which law is superior when they are in conflict in a legal situation in which we may become involved. Nullification arises from enough people performing that duty and refusing to go along with some unconstitutional action of an official. That’s all a judge does — refuse to go along. Finding a statute to be unconstitutional does not remove it from the statute books. It is only the judges saying they will not enforce it. We must all do that. Judges just get cases at a later stage than do most of the rest of us. Noncooperation with an unconstitutional official act by enough people can be effective in getting officials to abandon their attempts to do it, but such acts do not always need our cooperation, and enough officials of the same branch and level of government committing the usurpation may not join in noncooperation. Violent resistance, including passing state statutes to set up a violent confrontation with federal agents, is a last resort and likely not to be an effective one. Ultimately, for nullification efforts to prevail they have to win the hearts and minds of enough voters to affect the outcomes of elections, and that means they need to arouse more sympathy and outrage against the usurpers than for the usurpers.
However, everyone should refrain from calling things “laws” that are unconstitutional. An unconstitutional statute is not a law, although it may have the color of law. It is null and void from inception (ab initio), not just from when found to be by a judge, and we should not concede legitimacy to a non-law by calling it one.
@Lex_Rex
The doctrine of judicial supremacy says that the judiciary is the final arbiter of laws. But this is certainly questionable. The courts can render their opinions, but opinions obnoxious to the Constitution are no more binding than laws that are obnoxious. Why should the usurpation of judges stand absolute, but the usurpation of the legislative and execute branch be stricken down? What makes the lawless acts of judges (of which there are so very many abortion being the most egregious) inviolate? Why should a majority of nine non-elected judges be able to dictate the laws and morals of a whole country? There is much to commend England’s system whereby the House of Lord is the court of last resort, thereby reserving to the people’s elected representatives the final say, rather than non-elected judges.