JUDICIAL REVIEW
A court’s authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles.
The power of courts of law to review the
actions of the executive and legislative branches
is called judicial review. Though judicial review
is usually associated with the U.S. Supreme
Court, which has ultimate judicial authority, it is
a power possessed by most federal and state
courts of law in the United States. The concept is
an American invention. Prior to the early 1800s,
no country in the world gave its judicial branch
such authority.
In the United States, the supremacy of
national law is established by Article VI,
Clause 2, of the U.S. Constitution. Called the
SUPREMACY CLAUSE, it states that “This Consti-
tution, and the laws of the United States which
shall be made in pursuance thereof . . . shall be
the supreme law of the land.” It goes on to say
that, “judges in every state shall be bound
thereby.”This means that state laws may not vio-
late the U.S. constitution and that all state courts
must uphold the national law. State courts
uphold the national law through judicial review.
Through judicial review, state courts deter-
mine whether or not state executive acts or state
statutes are valid. They base such rulings on the
principle that a state law that violates the U.S.
constitution is invalid. They also decide the con-
stitutionality of state laws under state constitu-
tions. If, however, state constitutions contradict
the U.S. Constitution, or any other national
statute, the state constitution must yield. The
highest state court to decide such issues is the
state supreme court.
While judicial review of state laws is clearly
outlined in the supremacy clause, the Framers of
the U.S. Constitution did not resolve the ques-
tion of whether the federal courts should have
this power over congressional and executive
acts. During the early years of the Republic, the
Supreme Court upheld congressional acts,
which implied the power of judicial review. But
the key question was whether the Court had the
power to strike down an act of Congress.
In 1803, the issue was settled in MARBURY V.
MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60,
when the Supreme Court, for the first time,
ruled an act of Congress unconstitutional. In
Marbury, Chief Justice JOHN MARSHALL rea-
soned that since it is the duty of a court in a law-
suit to declare the law, and since the
Constitution is the supreme law of the land,
where a rule of statutory law conflicts with a rule
of the Constitution, then the law of the Consti-
tution must prevail. Marshall asserted that it is
“emphatically the province and duty of the judi-
cial department, to say what the law is.”
Having established the power of judicial
review, the Supreme Court applied it only once
prior to the Civil War, in 1857, ruling the MIS-
SOURI COMPROMISE OF 1820 unconstitutional in
DRED SCOTT V. SANDFORD, 60 U.S. (19 How.)
393, 15 L. Ed. 691. During the same period, the
Court invalidated several state laws that came in
conflict with the Constitution. In M’CULLOCH V.
MARYLAND, 17 U.S. 316, 4 L. Ed. 579 (1819), the
Court invalidated a state’s attempt to tax a
branch of the BANK OF THE UNITED STATES.In
GIBBONS V. OGDEN, 22 U.S. 1, 6 L. Ed. 23 (1824),
the Court struck down a New York law granting
a MONOPOLY to a steamboat company, saying
that the state law conflicted with a federal law
granting a license to another company.
In addition to invalidating state laws, the
Marshall Court established the authority to
overrule decisions of the highest state courts. In
MARTIN V. HUNTER’S LESSEE, 14 U.S. 304, 4 L.
Ed. 97 (1816), the Court referred to the
supremacy clause to assert that its appellate
power extended to state courts.
Following the Civil War, the Supreme Court
grew concerned that the recently-passed FOUR-
TEENTH AMENDMENT would give the federal
government too much power over state govern-
ments and individual rights. Therefore, it used
the power of judicial review to strike down fed-
eral CIVIL RIGHTS laws that sought to address
RACIAL DISCRIMINATION in the former Confed-
erate states. Beginning in 1890, the Court
became embroiled in political controversy when
it exercised its power of judicial review to limit
government regulation of business. In Chicago,
Milwaukee, & St. Paul Railroad Co. v.Minnesota,
134 U.S. 418, 10 S. Ct. 462, 33 L. Ed. 970 (1890),
the Court struck down a state law establishing a
commission to set railroad rates. This case was
the first of many where the Court applied the
doctrine of SUBSTANTIVE DUE PROCESS to inval-
idate state and federal legislation that regulated
business. Substantive due process was a vague
concept that required legislation to be fair, rea-
sonable, and just in its content.
Through the early 1900s, the Court came
under attack from Populists and Progressives for
its desire to insulate capitalism from government
intervention. Unmoved by its critics, the Court
proceeded to invalidate a federal INCOME TAX
(POLLOCK V. FARMERS’ LOAN & TRUST CO., 157
U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759 [1895]), limit
the scope of the SHERMAN ANTI-TRUST ACT
(United States v. E. C. Knight Co., 156 U.S. 1, 15 S.
Ct. 249, 39 L. Ed. 325 [1895]), and forbid states to
regulate working hours (LOCHNER V. NEW YORK,
198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]).
The Supreme Court’s use of substantive due
