No, SCOTUS Did Not ‘Invent’ Judicial Review in Marbury v. Madison

You may have heard that the U.S. Supreme Court “invented” the power of judicial review in a case called Marbury v. Madison (1803).

If you’re on the political left, you may have heard it from someone like New York Times columnist Jamelle Bouie, who once argued that judicial review “wasn’t enumerated in the Constitution and isn’t inherent in the [Supreme Court] as an institution.” For Bouie, that meant the idea of abolishing judicial review was a no-brainer in the fight against “judges nominated by [President Donald] Trump.”

If you’re on the political right, you may have heard it from someone like the conservative influencer Mike Cernovich, who recently argued that judicial review “isn’t anywhere in the Constitution” and “Marbury vs Madison was made up.” For Cernovich, that meant “judges do not have any supervisory power over Trump.”

Bouie and Cernovich undoubtedly disagree about a great many political matters. Yet their comments about judicial review and the Constitution are practically identical. They also happen to be equally wrong.

Under Article III of the Constitution, “the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” That phrase—”the judicial Power”—was understood by both the framers and ratifiers of the Constitution to include the authority of the federal courts to nullify those legislative and executive actions that violated the Constitution, which is the same power that we now call judicial review.

During the Connecticut Ratification Convention in 1788, for example, Oliver Ellsworth, who had recently helped to draft the document at the 1787 Constitutional Convention in Philadelphia, explained that, “if the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, 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.” That’s judicial review.

Alexander Hamilton made the same point in one of his most famous contributions to the Federalist Papers, the influential series of essays (written by himself, James Madison, and John Jay between October 1787 and May 1788) that both explained the meaning of the new Constitution and championed its ratification. The “duty” of the federal judiciary, Hamilton observed in Federalist No. 78, “must be to declare all acts contrary to the manifest tenor of the constitution void.”

Even Thomas Jefferson, who would later decry the Federalist Party’s influence over the federal judiciary, agreed at the time of the Constitution’s adoption that judicial review was inherent in the document. In a 1789 letter to Madison, for instance, Jefferson argued that one of the benefits of adding a Bill of Rights to the new Constitution would be “the legal check which it puts into the hands of the judiciary.” In other words, Jefferson expected the federal courts to wield the proposed Bill of Rights as a check against the legislative and executive branches via the judiciary’s existing power of judicial review.

Speaking of Madison, he memorably described the proper role of the federal courts under the Constitution as being “an impenetrable bulwark against every assumption of power in the legislative or executive.” That’s also what we now call judicial review.

So, instead of listening to the erroneous musings of a Bouie or a Cernovich, why not just take it straight from the source and listen to Ellsworth, Hamilton, Jefferson, and Madison, all of whom agreed that the power of judicial review is right there in the Constitution.