Judicial Review The most important American political institution is the U.S. Constitution. Of course, this is only a document, but it is also an institution in its own way, for it is the basis of all American political institutions and practices. It is like the DNA of our government: We would have no government without it, no road map to create our form of democracy. Unlike other democracies like Great Britain in which there is no single guiding document or voice, the U.S. government has a central core. This is, of course, sometimes problematic as when courts or other governmental institutions become so wrapped up in the problem of the "original intent" of the Framers of the Constitution - as if anyone could determine after over two centuries what such intent might be, assuming that the Framers themselves would want us necessarily to limit ourselves to their vision of the world. But it does provide an essential coherence to our American political world that is lacking in other countries.

Within the Constitution, the most important elements are the Bill of Rights, especially the First Amendment with its definition of our essential human and civil rights and the Tenth Amendment, with its reminder that not all the rights that an American has have to be defined by government to exist. However, equally as important an element of the Constitution is the way in which the separation of powers is specified so that the three branches of government - the judiciary, the executive branch and the legislative branch (as well as the federal, state and local levels of government) - must work in tandem with each other.

It is safe to say that a respect for the principle of separation of powers is deeply ingrained in every American. The nation subscribes to the original premise of the framers of the Constitution that the way to safeguard against tyranny is to separate the powers of government among three branches so that each branch checks the other two.

Definition of Judicial Review

The concept of judicial review, at least within American jurisprudence, is based in this broader concept of separation or balance of governmental powers. Judicial review is the balance of power that the judiciary has over the legislative branch (which may enact laws that the judiciary finds violate either existing case law or some element of the Constitution itself) as well as the executive branch, which may try to put into action either laws or executive orders that similarly violate either existing case law or some element of the Constitution itself. Without the power of judicial review, there is effectively no balance of power among the three branches of government. The following citation summarizes the centrality of this concept to the overall structure of governance in the United States.

Judicial review is a court's power to review, and possibly nullify, laws and governmental acts that violate the constitution and higher norms. It is a way to assure that governmental actors respect the constitution and do not use powers granted to them by the constitution to seize illegitimate power. Judicial review is generally the final word by a governmental institution on a law's validity.

While this basic concept of judicial review may seem to be relatively simple and straightforward, in practice it has often proved to be complex and ambiguous - which does not lessen its importance. The U.S. Supreme Court (which is the court that has the ultimate power of judicial review in the nation, although lower courts also exercise this right within their own jurisdictions) derives much of its importance as an institution from its ability to deny the validity of both legislation and executive actions if the court considers either legislation or executive action to conflict with any element of the Constitution. This ability to nullify the actions of both he legislative branch and the executive branch (or the actions of both, should legislation and executive action work together) is the power of judicial review.

Judicial review allows the courts, and specifically the Supreme Court, the ability to safeguard the rights of individual Americans. At the same time, it empowers the judiciary to create a "living Constitution" that can be - and is - adapted to changing historical, political, economic and cultural conditions and that allows a single, aging document to provide the basis for wise and just governance in a brave new world the specifics of which the Framers could scarcely have imagined.

Hamilton's Legacy

We have been discussing the concept of judicial review as it if arose from the Constitution, and...

However, for these Constitutional provisions to have arisen the idea of judicial review must have existed before the Constitution was itself written and ratified, and this is in fact the case, although the concept was not made explicitly a part of American polity until 1803 when it was invoked by Chief Justice John Marshall in Marbury v. Madison. While the idea is integral to the Constitutional separation of powers, it is important to note that the power of judicial review is not in fact anywhere explicitly described in the Constitution, although the practice of judicial review had been seen even before the ratification of the Constitution during the period of Confederacy that intervened between the Revolution and the ratification of the Constitution when federal courts used the power of judicial review to strike laws that had been permitted to stand by state courts.
Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.

It should perhaps also be noted that not all of the Framers of the Constitution favored the concept of judicial review; on this subject as on so many others Jefferson and Hamilton, at least, found themselves in disagreement. We can in fact see the basis for the implicit inclusion of judicial review in the Constitution in Hamilton's writings in the Federalist papers. However, while it is important to recognize Hamilton's particular contributions to the idea and practice of judicial review, it is also important to understand that the concept was not original to him but was an idea that had general currency (if not universal acceptance) at the end of the 18th century.

Judicial Review and the Federalist Papers

The Federalist Papers were a series of 85 essays on then-proposed Constitution as well as more generally on the nature of republican government. Published in 1787 and 1788 by Alexander Hamilton along with James Madison and John Jay, the intent of these papers was to persuade the voters of New York to support ratification of the Constitution. Long after that initial purpose became irrelevant, these essays remain read and studied for the crystalline quality of the arguments made within them about the importance of governmental separation of power and the specific ways in which a balance of power can be established and maintained both between the state and federal governments and among the three different elements of the federal government itself. The Federalist papers were meant to reassure the people of New York that a stronger federal system - both symbolized and enabled by the Constitution - would still allow individual citizens to maintain the fundamental rights that they had held under the Confederacy.

But more than this (and this point is perhaps less well remembered today), Hamilton, Madison and Jay argued that the rights of individuals may well be more imperiled by a weak central government than a strong one. That point is certainly a counter-intuitive one for many people, and it was therefore of central concern to the three authors of the Federalist papers. One of the provisions of the new Constitution that would guarantee those individual rights was the concept of judicial review.

Madison, in the 51st Federalist paper, emphasizes the importance of internal checks and balances on the newly proposed federal government. These internal firewalls are now so much a part of our everyday expectations of the ways in which our government works that it may be impossible for us to understand that the New Yorkers (and other Americans) to whom Hamilton, Madison and Jay were writing had no experience with such governmental balances and in many cases no belief that they would work. Madison tried to instill faith in the merits of such internal divisions with statements like this:

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several…