Constitution 101: The Judiciary and Judicial Review

The Tenth Amendment Center, February 16,2018

supreme-court-1200[1].jpgThe federal judiciary has arguably become the most powerful branch of the general government. Opinions issued by nine politically connected lawyers have redefined marriage throughout the entire United States, authorized the internment of American citizens and dictated what kinds of decorations cities can display in their parks.

Federal courts were never intended to wield this kind of power and control. In Federalist #78, Alexander Hamilton argued that judiciary would operate as the weakest branch of the federal government.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.”

The judiciary has a very specific role – to judge cases – sometimes referred as “controversies.” The two words were used interchangeably in the founding era.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.)

This power was further limited by the 11th Amendment.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

If an issue isn’t a proper judicial “case,” the federal judiciary does not have any jurisdiction. It has no authority to issue advisory opinions, or make judgments outside the narrow scope of a given case. During the Philadelphia Convention, Charles Pinckney of South Carolina submitted a proposal to require the Supreme Court to issue advisory opinions at the request of the president or Congress. The convention rejected this proposal.

Technically, a ruling only binds the parties to the case, and it can only be applied within contexts identical to the facts of the controversy. One can certainly draw broader conclusions from a ruling, but it doesn’t automatically apply to all people at all times. But courts tend to follow precedent, and future judges won’t generally overturn “settled law,” even when the precedent strays significantly from the Constitution as ratified.

Congress wields a great deal of power over the federal courts. The Constitution only directly establishes a Supreme Court. Congress has the authority to “ordain and establish” inferior courts. In fact, Congress could do away with the entire existing district and appellate court system. It also has the authority to determine the number of justices on the Supreme Court.

Additionally, Congress has the power to limit the federal courts’ jurisdiction. The Constitution delegates “appellate jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make.”

For instance, Congress could pass a law prohibiting the Supreme Court from hearing cases related to abortion.

Roger Sherman of Connecticut was a delegate at the Philadelphia Convention and a supporter of ratification. During the ratification debates, he summarized the limitation of federal judicial power.

It was thought necessary in order to carry into effect the laws of the Union, and to preserve justice and harmony among the States, to extend the judicial powers of the confederacy; they cannot be extended beyond enumerated cases, but may be limited by Congress, and doubtless will be restricted to such cases of importance and magnitude as cannot safely be trusted to the final decision of the court of the particular states.”


The Supreme Court has expanded its power primarily through judicial review – the authority to test legislative acts against the Constitution.

Most people in the founding era seemed to assume judicial review was legitimate. In fact, courts exercised this power during the colonial era. The Privy Council reviewed colonial legislation and ruled on its validity under colonial charters. There were also several instances when state courts invalidated state legislation, finding it inconsistent with state constitutions.

Alexander Hamilton hinted at judicial review in Federalist #78, arguing that it would serve to keep the other branches of the general government in check.

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. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

A number of prominent supporters of the Constitution affirmed the power of judicial review and argued that it would help keep the federal government in check. For instance, during the Connecticut ratifying convention, Oliver Ellsworth said, “If the United State go beyond their powers, if they make a law which the constitution does not authorise, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void.”

James Wilson made the same assertion during the Pennsylvania ratifying convention

If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void. For the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto will not have the force of law.”

And John Marshall, who would later famously pen the opinion in Marbury v. Madison, also argued that judicial review would serve as an important check on federal power. He said if the government of the United States “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 their jurisdiction. They would declare it void.”

Legal scholars today trace judicial review back to Marshall’s opinion in Marbury. From this case, they argue the Supreme Court has the sole authority to determine the constitutionality of a federal act. They claim Marshall established this authority when he wrote; “It is emphatically the province and duty of the judicial department to say what the law is.”

Most lawyers and legal experts, rip this one sentence out of context from Marshall’s opinion and find in it the authority for the Supreme Court to stand as the exclusive and final judge on the extent of federal power. But even if you accept the bizarre notion that a political body can vest power in itself on its own whim, this was not Marshall’s intent. He merely affirmed the power of judicial review. His reasoning was completely consistent with what he said during the Virginia ratifying convention.

Marshall was answering a specific question: does the Court have the authority to consider the constitutionality of an act when ruling on a case. At issue was a provision of the Judiciary Act of 1789 and whether the Court had original jurisdiction to decide if a writ of mandamus could be issued to force Madison to hand over Marbury’s commission. Some argued the court should just consider the law – the Judiciary Act itself – and not the Constitution. Marshall defended his decision to rule based on the Constitution.

The judicial power of the United States is extended to all cases arising under the Constitution.

“Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

“This is too extravagant to be maintained.”

Clearly, the courts possess the authority to judge the constitutionality of an act. Few people dispute that. Judicial review was widely accepted during the ratification debates and was even held up as in important check on the legislative and executive branches.

But notice an important point: nowhere does Marshall, nor any supporter of the Constitution during the ratification process, assert that the Court stands as the sole and final judge of constitutionality. In fact, in Marbury, Marshall maintains that the Constitution also binds the Court itself.

The particular phraseology of the Constitution…confirms and strengthens the principle…that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”

In an 1815 letter to W.H. Torrance, Thomas Jefferson forcefully asserted that the courts do not have exclusive power to determine constitutionality.

The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”

Jefferson warned against allowing federal courts to become the final arbiter of the Constitution. He contended that every branch was independent, and has a responsibility to judge the constitutionality of an action for itself. In a letter to Abigail Adams, Jefferson argued the courts had every right to declare the Sedition Act of 1798 constitutional and meet out punishment under the law, but he contended that the court’s decision did not bind the executive branch.

You seem to think it devolved on the judges to decide on the validity of the sedition law. but nothing in the constitution has given them a right to decide for the executive, more than to the Executive to decide for them. both magistracies are equally independant in the sphere of action assigned to them. the judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the constitution. but the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. that instrument meant that it’s co-ordinate branches should be checks on each other. but the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature & executive also in their spheres, would make the judiciary a despotic branch.”

Jefferson’s arguments make sense within the context of the Constitution. If the judiciary maintains the sole authority to determine the powers of the federal government, the federal government becomes effectively unlimited. After all, the Supreme Court makes up part of the federal government. Jefferson forcefully made this case in the Kentucky Resolutions of 1798.

The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

So, if the judicial branch doesn’t have the final say on constitutionality, who does? I cover that in the Constitution 101 article, Who Decides Constitutionality.

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