Bench Memos

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Still More Review


Matt and I disagree on so many issues in his last posts alone that time and space prohibit me from addressing them all here. I will therefore attempt only to hit a few major points in the hopes of providing some clarification.

Matt states that “In light of the absence of any plain textual authorization of all-purpose “judicial review” (as Mark Levin has pointed out), we should presume that no constitutional issue is the business of the Supreme Court unless it can be demonstrated to be so.” This is a novel theory, but let me be perfectly clear: it is most assuredly not the accepted originalist understanding, and, to the extent that it relies on the absence of the words “judicial review” in the Constitution, it is a parody of textualism.

The fact that the words “judicial review” do not appear in the Constitution does not mean that the Constitution does not grant the judiciary that power. Matt seems to admit this: after all, he would ration judicial review to individual rights cases (although he never quite explains how the Constitution grants the courts power in those cases, while reserving it from every other kind of case). Two phrases hold the key to judicial review: first, Art. I, s.1’s statement that “[t]he judicial Power of the United States, shall be vested in one supreme Court . . .,” and Art. III, s.2’s clarification that “[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . .” This more generalized statement of judicial power is not without limits—it is properly circumscribed by the understanding of judicial power at the time of the framing.

Judicial power was well understood by the framers to include the authority to review the constitutionality of legislative acts. The framers would have known that The Privy Council had struck down legislative enactments that violated colonial charters. Furthermore, in enacting the Constitution, the framers rejected a Council of Revision to review legislative enactments, because it was well understood that the Courts would have this general power. Thus, Rufus King stated at the Constitutional Convention that the Council on Revision was unnecessary “because the Judges will have the expounding of those Laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the constitution.” Elbridge Gerry offered similar sentiments, noting that the courts would have a check against the other branches “by their exposition of the laws, which involved a power of deciding their Constitutionality.” There are more statements from the Convention, indicating that even those like John Dickinson who disapproved of judicial review did not dispute its presence in the Constitution. (Those wishing to learn more would do well to read David P. Currie’s fine book, The Constitution in the Supreme Court: The First Hundred Years.)

And then there is Federalist 78, which shoots to the very heart of Matt’s presumption against judicial review of structural issues:

If it be said that the legislative body are themselves the constitutional judges of their own powers, . . . this cannot be the natural presumption, where it is not to be recollected from any particular provision in the Constitution. . . . It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order . . . to keep the latter within the limits assigned to their authority.

Finally, contrary to popular opinion, Marbury was not the first federal case involving judicial review. Federal courts had struck down federal law in Hayburn’s Case (1792), the Supreme Court had reviewed the constitutionality of a federal statuted, Hylton v. United States (1796), and the Supreme Court had applied judicial review to state laws in Cooper v. Telfair (1800) and Ware v. Hylton (1796). No one should therefore believe that judicial review sprang ex nihilo from Marbury.

Thus, judicial power was well understood by the framers to include the authority to review the constitutionality of statutes, and the express language of the Constitution extends the judicial power to “all Cases, in Law and Equity, arising under this Constitution.” Matt’s attempt to limit judicial review to some subset of cases is contrary to the plain language of art. III, as well as to the understanding of the framers.


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