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.
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.
Originally published at the Independence Institute and reposted here with permission.
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