Did the Framers of the Constitution intend the Supreme Court to have the power of judicial review as part of the system of checks and balances?

Answer 1

Ever since the court's ruling in Marbury V. Madison in 1803, judicial review has been an essential feature of the federal government's system of checks and balances. Judicial review gives the judicial branch a way to check the actions of both the legislative and the judicial branch.

Answer 2

This has long been a matter of debate between constitutional originalists and proponents of judicial review. Originalists believe the Constitution only intends government to exercise expressed powers, not implied powers. Others believe judicial review was already an accepted practice in American jurisprudence, and point out the Constitution is silent on most aspects of how the courts should operate. As the third branch of government, it seems likely the Judicial Branch is intended to have some authority to act under the system of checks and balances. Judicial review is really the only power they have over the other two branches, but is an important power than helps ensure Congress doesn't violate its constitutional authority.

While the power of judicial review isn't explicitly stated in the Constitution, the authority is implied in Article III, and in general by virtue of the Supreme Court's role as head of the Judicial branch of government.

Article III, Section 1 begins:

"The judicial power of the United States, shall be vested in one Supreme Court..."

Article III, Section 2 of the Constitution states:

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority..." [emphasis mine]

This clause can be interpreted to mean the Judicial branch has the implied power to determine whether legislation is constitutionally sound, as part of its responsibility to uphold the Constitution. If the Legislative or Executive branches are allowed to act unilaterally, without any form of oversight, then there is no means of protecting the integrity of the Constitution. This responsibility would logically fall to those with an understanding of law, the judiciary, or more specifically, the Supreme Court.

The Constitution limits the action of all branches of government, not just the judiciary. The lack of specific instruction for which cases fall under the Court's appellate jurisdiction, as opposed to the specificity of which cases are under its original jurisdiction, tends to suggest the Founding Fathers intended to provide the Court an expanded scope of responsibility with regard to safeguarding the Constitution, not a more limited one.

The power of judicial review is also a byproduct of US Supreme Court case law, which is considered an "informal amendment process." Informal amendment simply refers to a standard and excepted constitutional interpretation in use under the American common law system. Despite the term, the informal amendment process isn't typically permanent and doesn't really change the constitution, only the meaning given to various clauses. This understanding changes over time.

Marbury v. Madison, 5 US 137 (1803) is considered the first case to fully explicate the right of judicial review. That power has been recognized (to varying degrees) by all three branches of the US government for more than 200 years.

Answer 3

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