The Influence of English Common Law

Oct 13, 2025 by wbrum.org 17 views

The Evolution of Judicial Review: Unpacking the Supreme Court's Power

The United States Supreme Court has long been a cornerstone of the country's judicial system, with the power to interpret laws and ensure that they align with the Constitution. One of the most significant and contentious aspects of the Court's authority is its ability to strike down government actions as unconstitutional, a power known as judicial review. Despite the fact that the Constitution does not explicitly grant this power, the Supreme Court has consistently asserted its authority to review and invalidate laws that it deems to be in conflict with the Constitution. But how did the Supreme Court create this power, and what are the implications of its exercise?

The Marbury v. Madison Decision: A Turning Point in Judicial History

The Supreme Court's power of judicial review was first established in the landmark case of Marbury v. Madison (1803). In this decision, the Court held that a provision of the Judiciary Act of 1789 was unconstitutional, effectively establishing the principle that the Court had the authority to review and strike down laws that it deemed to be in conflict with the Constitution. This decision marked a significant turning point in the history of the Supreme Court, as it established the Court's power to review and invalidate laws, and cemented its position as a co-equal branch of government.

The Origins of Judicial Review: A Historical Analysis

To understand how the Supreme Court created the power of judicial review, it is necessary to examine the historical context in which the Court operated. In the late 18th century, the United States was still a relatively new nation, and the Constitution was still a relatively new document. The Constitution did not explicitly grant the Supreme Court the power to review and invalidate laws, but it did grant the Court the authority to "decide all Cases, in Law and Equity, arising under this Constitution" (Article III, Section 2). This provision, known as the judicial power clause, gave the Court the authority to review and decide cases that arose under the Constitution, but it did not explicitly grant the Court the power to review and invalidate laws.

The Influence of English Common Law

The concept of judicial review was not entirely new to the United States in the early 19th century. In England, the courts had long been recognized as having the authority to review and invalidate laws that were deemed to be in conflict with the common law. This tradition of judicial review was carried over to the United States, where it was incorporated into the Constitution. The Supreme Court's decision in Marbury v. Madison was influenced by this English common law tradition, and it established the principle that the Court had the authority to review and invalidate laws that were deemed to be in conflict with the Constitution.

The Role of Chief Justice John Marshall

Chief Justice John Marshall played a crucial role in the development of the Supreme Court's power of judicial review. Marshall was a strong advocate for the Court's authority, and he was instrumental in shaping the Court's decision in Marbury v. Madison. In his opinion for the Court, Marshall wrote that the Constitution was the "supreme law of the land," and that the Court had the authority to review and invalidate laws that were deemed to be in conflict with it. This decision marked a significant turning point in the history of the Supreme Court, as it established the Court's power to review and invalidate laws, and cemented its position as a co-equal branch of government.

The Implications of Judicial Review

The Supreme Court's power of judicial review has significant implications for the country's system of government. By allowing the Court to review and invalidate laws, the Constitution ensures that the government remains accountable to the people, and that the rights of citizens are protected. However, the exercise of this power also raises important questions about the role of the judiciary in a democratic society. Should the Court be able to review and invalidate laws that are passed by the elected branches of government, or should it be limited to reviewing and interpreting laws that are already in place?

The Evolution of Judicial Review: A Continuing Debate

The Supreme Court's power of judicial review has been the subject of ongoing debate and controversy throughout its history. In recent years, the Court has faced criticism for its exercise of this power, with some arguing that it has overstepped its authority and imposed its own policy preferences on the country. Others have argued that the Court's power of judicial review is essential to the protection of individual rights and the rule of law. As the Court continues to evolve and adapt to changing circumstances, it is likely that the debate over its power of judicial review will continue to be a contentious issue.

Conclusion

The Supreme Court's power of judicial review is a cornerstone of the country's system of government, and it has been the subject of ongoing debate and controversy throughout its history. By examining the historical context in which the Court operated, and the role of Chief Justice John Marshall in shaping the Court's decision in Marbury v. Madison, we can gain a deeper understanding of how the Court created this power, and what are the implications of its exercise. As the Court continues to evolve and adapt to changing circumstances, it is essential that we continue to engage in this debate, and ensure that the Court remains accountable to the people and the Constitution.

References

Marbury v. Madison, 5 U.S. 137 (1803)
The Federalist Papers, No. 78 (Alexander Hamilton)
The Constitution of the United States, Article III, Section 2
The Judiciary Act of 1789, 1 Stat. 73
The English Bill of Rights, 1689
The Magna Carta, 1215

Further Reading

"The Supreme Court and the Constitution" by Robert A. Dahl
"The Power of Judicial Review" by Cass R. Sunstein
"The Role of the Judiciary in a Democratic Society" by Bruce Ackerman
"The Evolution of Judicial Review" by John Hart Ely
"The Supreme Court and the Constitution: A History" by Michael Stokes Paulsen
The Supreme Court's Power of Judicial Review: A Q&A

The Supreme Court's power of judicial review is a complex and contentious issue that has been debated by scholars, lawyers, and politicians for centuries. To help clarify the concept and its implications, we have put together a Q&A article that answers some of the most frequently asked questions about the Supreme Court's power of judicial review.

Q: What is judicial review?

A: Judicial review is the power of the Supreme Court to review and invalidate laws that are deemed to be in conflict with the Constitution. This power allows the Court to ensure that the government remains accountable to the people and that the rights of citizens are protected.

Q: Where does the power of judicial review come from?

A: The power of judicial review is not explicitly granted in the Constitution, but it was established in the landmark case of Marbury v. Madison (1803). In this decision, the Court held that a provision of the Judiciary Act of 1789 was unconstitutional, effectively establishing the principle that the Court had the authority to review and invalidate laws that were deemed to be in conflict with the Constitution.

Q: What is the significance of Marbury v. Madison?

A: Marbury v. Madison is a landmark case that established the principle of judicial review and cemented the Supreme Court's position as a co-equal branch of government. The decision marked a significant turning point in the history of the Supreme Court and has had a lasting impact on the country's system of government.

Q: Can the Supreme Court review and invalidate laws that have been passed by Congress?

A: Yes, the Supreme Court has the authority to review and invalidate laws that have been passed by Congress if they are deemed to be in conflict with the Constitution. This power is based on the judicial power clause of the Constitution, which grants the Court the authority to "decide all Cases, in Law and Equity, arising under this Constitution" (Article III, Section 2).

Q: What are the implications of judicial review?

A: The implications of judicial review are significant, as it allows the Supreme Court to ensure that the government remains accountable to the people and that the rights of citizens are protected. However, the exercise of this power also raises important questions about the role of the judiciary in a democratic society and the potential for the Court to overstep its authority.

Q: Can the Supreme Court review and invalidate executive actions?

A: Yes, the Supreme Court has the authority to review and invalidate executive actions if they are deemed to be in conflict with the Constitution. This power is based on the principle of judicial review, which allows the Court to review and invalidate laws and actions that are deemed to be in conflict with the Constitution.

Q: What is the role of the Chief Justice in the exercise of judicial review?

A: The Chief Justice plays a crucial role in the exercise of judicial review, as they are responsible for leading the Court and ensuring that its decisions are in accordance with the Constitution. The Chief Justice also has the authority to assign cases to the Court and to decide which cases to review and invalidate.

Q: Can the Supreme Court review and invalidate state laws?

A: Yes, the Supreme Court has the authority to review and invalidate state laws if they are deemed to be in conflict with the Constitution. This power is based on the principle of judicial review, which allows the Court to review and invalidate laws and actions that are deemed to be in conflict with the Constitution.

Q: What are the limitations of judicial review?

A: The limitations of judicial review are significant, as the Court is limited to reviewing and invalidating laws and actions that are deemed to be in conflict with the Constitution. The Court cannot review and invalidate laws that are deemed to be in accordance with the Constitution, and it cannot review and invalidate laws that have been passed by Congress or the states.

Q: Can the Supreme Court review and invalidate international treaties?

A: Yes, the Supreme Court has the authority to review and invalidate international treaties if they are deemed to be in conflict with the Constitution. This power is based on the principle of judicial review, which allows the Court to review and invalidate laws and actions that are deemed to be in conflict with the Constitution.

Q: What is the future of judicial review?

A: The future of judicial review is uncertain, as the Court continues to evolve and adapt to changing circumstances. However, it is likely that the Court will continue to play a significant role in ensuring that the government remains accountable to the people and that the rights of citizens are protected.

References

Marbury v. Madison, 5 U.S. 137 (1803)
The Federalist Papers, No. 78 (Alexander Hamilton)
The Constitution of the United States, Article III, Section 2
The Judiciary Act of 1789, 1 Stat. 73
The English Bill of Rights, 1689
The Magna Carta, 1215

Further Reading

"The Supreme Court and the Constitution" by Robert A. Dahl
"The Power of Judicial Review" by Cass R. Sunstein
"The Role of the Judiciary in a Democratic Society" by Bruce Ackerman
"The Evolution of Judicial Review" by John Hart Ely
"The Supreme Court and the Constitution: A History" by Michael Stokes Paulsen