When was the legal precedent for judicial review established?

Answer 1

The answer to that question is open to debate.

Judicial Review is not an American invention, but a standard feature of British common law that became part of the legal process in the United States.

Scholars typically cite Marbury v. Madison, 5 US 137 (1803) as the case that established a precedent for using judicial review, because Marbury was the first US Supreme Court decision that directly explicated the Court's power to declare an act of Congress unconstitutional (Judiciary Act of 1789, § 13). Marbury was not the first case in which the Court weighed the validity of a law against the Constitution, however, nor was it the first case challenging an law passed by Congress.

The first recorded use under the US Constitution was in 1792, when the circuit courts found an act of Congress related to military veterans unconstitutional. Congress rewrote the law -- without protest -- in 1793.

An earlier case, Hylton v. United States, 3 US 171 (1796), used judicial review to support challenged legislation, Act of June 5, 1794, (repealed in 1796), that imposed a tax "upon all carriages for the conveyance of persons, which shall be kept by or for any person, for his or her own use, or to be let out to hire, or for the conveying of passengers." In Hylton, the Court declared the carriage tax was not an unapportioned (direct) tax in violation of Article I, Section 9, of the Constitution, but rather a constitutionally allowable excise tax, as outlined in Article I, Section 8. Since Hyltonupheld an act of Congress, it is often overlooked as an example of judicial review.

Similarly, a second case that Term, Ware v. Hylton, 3 US 199 (1796), held that the Treaty of Paris (1783) superseded an otherwise valid Virginia statute and used the Supremacy Clause to nullify the law.

While Hylton v. United States, (1796), can be cited as the first instance of judicial review; Ware v. Hylton, (1796) is recognized as the first example of judicial nullification of a state law; and Marybury v. Madison, (1803), as the first example of nullification of a federal law.

AltLaw records six instances of modern cases (1950 or later) citing Hylton; approximately twenty-one cases citing Ware; and eighty-nine cases citing Marbury. These examples are probably not inclusive.