# Constitutional originalist's opinion of judicial review **URL:** \ **Category:** Factual Questions\ **Created:** [July 6, 2018, 8:37pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421 "2018-07-06T20:37:43Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Marvin\_the\_Martian](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/marvin_the_martian/32/2898_2.png) [@Marvin\_the\_Martian](https://boards.straightdope.com/u/Marvin_the_Martian)\ **Post date:** [July 6, 2018, 8:37pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/1 "2018-07-06T20:37:43Z")
Since the concept of _judicial review_ is not spelled out in the US constitution, but rather was established by [John Marshall](https://en.wikipedia.org/wiki/John_Marshall) in [Marbury v Madison](https://en.wikipedia.org/wiki/Marbury_v._Madison), would a strict originalist reject the concept as unconstitutional? Or is there a precedent for judicial review in Common Law? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [July 6, 2018, 9:29pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/2 "2018-07-06T21:29:52Z")
> [@Marvin\_the\_Martian](#): > > Since the concept of _judicial review_ is not spelled out in the US constitution, but rather was established by [John Marshall](https://en.wikipedia.org/wiki/John_Marshall) in [Marbury v Madison](https://en.wikipedia.org/wiki/Marbury_v._Madison), would a strict originalist reject the concept as unconstitutional? Or is there a precedent for judicial review in Common Law? Well, if you want the answer to this, you could start by reading John Marshall’s opinion in [_Marbury v. Madison_](https://supreme.justia.com/cases/federal/us/5/137/case.html), 5 U.S. 137 (1803). You can also start by reading what little Wiki has to say, and following links therefrom: [Judicial Review in the US before Marbury](https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States#Judicial_review_before_the_Constitution) ---
**Author:** ![Marvin\_the\_Martian](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/marvin_the_martian/32/2898_2.png) [@Marvin\_the\_Martian](https://boards.straightdope.com/u/Marvin_the_Martian)\ **Post date:** [July 6, 2018, 10:21pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/3 "2018-07-06T22:21:30Z")
I can rephrase my question: are there legal scholars/potential SCOTUS nominees (presumable in the extreme originalist camp) who view Marbury v. Madison, which established what we have come to expect as a primary function of the Supreme Court, as an overreach? Trying to get an idea of how extreme originalist thinking can get. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [July 6, 2018, 10:55pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/4 "2018-07-06T22:55:00Z")
> [@Marvin\_the\_Martian](#): > > I can rephrase my question: are there legal scholars/potential SCOTUS nominees (presumable in the extreme originalist camp) who view Marbury v. Madison, which established what we have come to expect as a primary function of the Supreme Court, as an overreach? Trying to get an idea of how extreme originalist thinking can get. I don’t have cites, but I clearly remember hearing people who believed that the Courts should not have the power to invalidate laws passed by Congress. Probably people in Congress. They thought that Congress should decide what the Constitution allows, and if they got it wrong, the President should veto it. So, are there people who believe that? Yes, absolutely. Are some of them “legal scholars?” Probably. Are some potential SCOTUS nominees? I doubt it. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 6, 2018, 10:55pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/5 "2018-07-06T22:55:36Z")
The GQ answer is no. Nobody who has attained the status that you describe does not believe in judicial review. Even Jefferson didn’t go that far. Jefferson believed that it was upon each man in power to deny the effect of an unconstitutional law. He just did not believe that the Supreme Court could tell HIM to deny the effect of the law. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [July 6, 2018, 10:58pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/6 "2018-07-06T22:58:21Z")
> [@](#): > > Liberals celebrated the Warren Court’s so-called “rights revolution,” but not everyone was jubilant. Conservative legal scholars such as Robert Bork and University of Texas Law School professor Lino Graglia were so dismayed by the Court’s decisions, particularly those based on the Fourteenth Amendment’s equal-protection and due-process clauses, that they argued for an end to judicial review altogether. From [this article.](https://www.nationalreview.com/2015/04/quandary-judicial-review/) ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [July 7, 2018, 8:20pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/7 "2018-07-07T20:20:10Z")
I don’t really understand the issue. Are we supposing then, that the constitution is not a law? If it is a law, then it is entitled to be considered along with all other laws involved in any case. Are we supposing it does not have precedence? If so, then what is the point? If you are constitutionally guaranteed a right, does that mean “except when congress passes a law conflicting with that right”? If we suppose “but the court cannot declare a law unconstitutional” then the result is “We can’t do anything about that law, but any time a future case comes to court regarding that, the precedent ruling will dictate that the constitutional right will override it and the government will lose”… which is the long version of “this law is unconstitutional”. Which particular piece of the chain would someone argue for to pre-empt judicial review? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 7, 2018, 8:37pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/8 "2018-07-07T20:37:22Z")
> [@md2000](#): > > I don’t really understand the issue. Are we supposing then, that the constitution is not a law? If it is a law, then it is entitled to be considered along with all other laws involved in any case. Are we supposing it does not have precedence? If so, then what is the point? If you are constitutionally guaranteed a right, does that mean “except when congress passes a law conflicting with that right”? If we suppose “but the court cannot declare a law unconstitutional” then the result is “We can’t do anything about that law, but any time a future case comes to court regarding that, the precedent ruling will dictate that the constitutional right will override it and the government will lose”… which is the long version of “this law is unconstitutional”. Which particular piece of the chain would someone argue for to pre-empt judicial review? The argument would be that the Constitution is the supreme law of the land, but it’s up to the elected Congress and president to determine whether any particular law is in violation of it. This view, it seems to me, is fairly well represented by Anthony Kennedy’s separate concurring opinion in _Trump v. Hawaii_, the travel ban case — [https://www.supremecourt.gov/opinions/17pdf/17-965\_h315.pdf](https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf) — > [@Anthony Kennedy](#): > > There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise. It’s a baffling viewpoint from my perspective. If X limits the powers of the president or Congress, then the Supreme Court (or _somebody_) must have the independent authority to determine when the president or Congress has crossed the line of their limits, or else it’s not a limit at all, really. ---
**Author:** ![Marvin\_the\_Martian](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/marvin_the_martian/32/2898_2.png) [@Marvin\_the\_Martian](https://boards.straightdope.com/u/Marvin_the_Martian)\ **Post date:** [July 8, 2018, 12:54am UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/9 "2018-07-08T00:54:06Z")
> [@Acsenray](#): > > It’s a baffling viewpoint from my perspective. If X limits the powers of the president or Congress, then the Supreme Court (or _somebody_) must have the independent authority to determine when the president or Congress has crossed the line of their limits, or else it’s not a limit at all, really. That authority is not explicitly granted to the Supreme Court in the Constitution. Chief Justice John Marshall basically took that power for the SC in _Marbury v. Madison_ - giving the Supreme Court the power of reviewing the constitutionality of an act of congress or the executive _as part of a Supreme Court decision_. My question was whether the constitutional originalists (i.e., those of the Scalia/Thomas ilk) would deep down like to roll things back to the exact wording (or lack thereof) regarding judicial review in the Constitution. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [July 8, 2018, 1:32am UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/10 "2018-07-08T01:32:55Z")
> [@Marvin\_the\_Martian](#): > > That authority is not explicitly granted to the Supreme Court in the Constitution. Chief Justice John Marshall basically took that power for the SC in _Marbury v. Madison_ - giving the Supreme Court the power of reviewing the constitutionality of an act of congress or the executive _as part of a Supreme Court decision_. My question was whether the constitutional originalists (i.e., those of the Scalia/Thomas ilk) would deep down like to roll things back to the exact wording (or lack thereof) regarding judicial review in the Constitution. The lack of a statement that the Court has a power is not a statement that the Court doesn’t not have the power. This is especially true in common law courts, where many of the things the Court does/can do are established not by some written authority, but rather by the common usage of the judiciary over time. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [July 8, 2018, 3:03am UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/11 "2018-07-08T03:03:53Z")
> [@Acsenray](#): > > It’s a baffling viewpoint from my perspective. If X limits the powers of the president or Congress, then the Supreme Court (or _somebody_) must have the independent authority to determine when the president or Congress has crossed the line of their limits, or else it’s not a limit at all, really. Not so baffling. In any case, you always have someone, or a group of people who makes this determination without recourse. Because you could as well say that someone must have the independent authority to determine when the Supreme Court has crossed the line. In theory, what happens if you end up with a politicized and activist court that finds unconstitutional every piece of legislation and every action of the executive they happen not to like, and constitutional everything they happen to support? Regardless how blatantly biased, unsupported by the constitution and self-serving these decisions may be, you’ve no recourse. Mandating a payment of $ 10 millions for the Supreme Court to find in your favour? That’s constitutional. A judge orders the unlimited detention of a journalist who criticized the judiciary? That’s constitutional too. The president signs an executive order before his oath of fealty to the Supreme Court? That’s unconstitutional. Congress voting on a law that doesn’t start by “In the year 25 of the reign of their benevolent majesties the hereditary Supreme Justices”? Unconstitutional. So, you always have someone who is the ultimate arbiter, whose decisions are final, and whose actions can’t be reviewed by anybody else. Thinking that this ultimate arbiter should at least be elected by the people is a perfectly valid point of view. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 8, 2018, 5:13am UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/12 "2018-07-08T05:13:23Z")
> [@clairobscur](#): > > So, you always have someone who is the ultimate arbiter, whose decisions are final, and whose actions can’t be reviewed by anybody else. Thinking that this ultimate arbiter should at least be elected by the people is a perfectly valid point of view. But then again, if this ultimate arbiter is supposed to be to protect a minority right against the will of a majority (say a law against free speech) then it does little good for that final arbiter to be elected. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [July 8, 2018, 5:20am UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/13 "2018-07-08T05:20:25Z")
> [@DSYoungEsq](#): > > The lack of a statement that the Court has a power is not a statement that the Court doesn’t not have the power. This is especially true in common law courts, where many of the things the Court does/can do are established not by some written authority, but rather by the common usage of the judiciary over time. I think that’s right, but that would be an ironic basis on which to justify the Court’s specific ruling in Marbury, however. The very point of that case was to limit the Court’s jurisdiction to that which was expressly stated in the Constitution. Marshall’s opinion seems clear to me. He finds the power of judicial review in the Constitution’s textual grant of jurisdiction to the federal judiciary to hear cases arising under the Constitution. I think there are contrary arguments that could have been made at the time, although at this point the power is too embedded in the system to change. The Bickel/Bork line of modern scholarship attacking the constitutional basis for judicial review was more aimed at establishing a norm of judicial restraint rather than overturning the long-held precedent, I think (working the refs rather than changing the rules, as it were). ---
**Author:** ![Spoons](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spoons/32/3141_2.png) [@Spoons](https://boards.straightdope.com/u/Spoons)\ **Post date:** [July 8, 2018, 8:24am UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/14 "2018-07-08T08:24:29Z")
> [@DSYoungEsq](#): > > This is especially true in common law courts, where many of the things the Court does/can do are established not by some written authority, but rather by the common usage of the judiciary over time. This is what puzzles me, and perhaps the American legal Dopers can put some perspective on it. The United States is a common-law country–that means a court uses case precedents from the past to decide what is before it today. But from what I see, from Trump supporters especially, is the belief that by stacking the SCOTUS with “conservative constitutional originalists,” they can ignore (and perhaps erase) 200+ years of SCOTUS common law, and make decisions based on “what the Framers intended.” Or perhaps, “what we believe the Framers intended.” Either way, I’m familiar with Scalia’s “Four Corners” doctrine. No thought is given to the Constitution as a “living tree,” which it must necessarily be, as time goes by. In the end, it seems to me that “conservative constitutional originalists” really want a European-style civil code, where precedent plays no role. Further, they expect Supreme Court judges to outvote their fellow judges based on personal politics instead of precedent. We don’t find this “politics trump precedent” in other common-law countries. I don’t get it. How can the legal system of a common-law country ignore centuries of precedent? ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [July 8, 2018, 8:32am UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/15 "2018-07-08T08:32:08Z")
> [@Tom\_Tildrum](#): > > Marshall’s opinion seems clear to me. He finds the power of judicial review in the Constitution’s textual grant of jurisdiction to the federal judiciary to hear cases arising under the Constitution. And he didn’t exactly invent that idea all by himself. The Virginia and Kentucky resolutions (on nullification) were five years before that, and the response from several other states was that only the federal courts could resolve disputes over constitutionality. For example, [New Hampshire](https://en.wikisource.org/wiki/Virginia_Resolutions_of_1798/New_Hampshire) said in 1799 that “the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government; that the duty of such decision is properly and exclusively confided to the judicial department.” ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [July 8, 2018, 11:17am UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/16 "2018-07-08T11:17:33Z")
I’m curious about one thing. Several state constitutions have been adopted since _Marbury v. Madison_. Do any of them explicitly enshrine the doctrine of judicial review as it pertains to the constitutionality of laws passed within that state? ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [July 9, 2018, 12:37am UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/17 "2018-07-09T00:37:53Z")
You should all work out the meaning of the phrase “pursuant thereto” and then discuss the question. To me it seems clear that the court cannot enforce a law that it decides does not follow the constitution. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [July 9, 2018, 12:49pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/18 "2018-07-09T12:49:09Z")
But whether a law is deemed “unconstitutional” is irrelevant. If the constitution is the supreme law of the land, and has force, then if a case comes before the court with a situation where the judge(s) feel the law is in conflict with the constitution, then the case arguing the law against the constitution - loses. Whether the court declares the law unconstitutional or not, is irrelevant. That’s just shorthand for “here’s the precedent on this law - it cannot be enforced”. The prosecutors can bring all the cases they want on the law, they will be tossed out by precedent. I.e. if the government tries to prosecute a reporter under the espionage act and the supreme court upholds the freedom of the press as an overriding point of law, then the government can prosecute as many reporters as it wants, but each case is going to get dismissed on that precedent and each reporter is then going to sue for false arrest because the government knew better … If the constitution does not have force as supreme law, then it’s a bunch of guidelines with no force and no real meaning, to be chipped away every time there’s a patriot-act-generating event in history, or every time a nutbar gets elected. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [July 9, 2018, 2:49pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/19 "2018-07-09T14:49:15Z")
One alternative, however, would be a system of legislative supremacy, where the legislature determines what is constitutional. Marshall could have found that a law properly passed by Congress in the exercise of its independent constitutional duty is presumed to be in accordance with the constitution, regardless of the Court’s views on the question, and directed anyone who thinks otherwise to seek a remedy from Congress. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 9, 2018, 3:27pm UTC](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421/20 "2018-07-09T15:27:57Z")
One of the best recent reviews of the historical record is [Treanor’s article, “Judicial Review Before Marbury”, in the Stanford Law Review](http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/04/treanor.pdf). It’s not behind a paywall. It’s about 100 pages, but it’s a detailed review of the cases he found before Marbury, where both state courts and federal courts held that laws were invalid for conflicting with the Constitution. It’s well worth the read, but if you don’t have time, here’s the summary: > [@Stanford Law Review Summary](#): > > While scholars have long probed the original understanding of judicial review and the early judicial review case law, this Article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), this Article shows that it was far more common than previously recognized: there are more than six times as many cases from the early Republic as the leading historical account found. This Article further shows that all the cases in which statutes were invalidated fell into one of three categories: courts invalidated statutes affecting the powers of courts or juries, even when the legislation could plausibly be squared with constitutional text and prior practice; state courts invalidated state statutes for inconsistency with the Federal Constitution; and federal courts invalidated state statutes—again, even when they could plausibly be defended as constitutional. Scholars have missed this structural pattern, and the dominant view has been that only clearly unconstitutional statutes were invalidated. This Article shows, instead, that the early case law reflects a structural approach to judicial review in which the level of scrutiny was closely linked to the nature of the challenged statute, and that courts aggressively protected their power, the power of juries, and the power of the national government. The article is strong evidence that Marshall did not invent judicial review, but rather it was well-known at the time. The significance of Marbury, by this reading of the historical record, is that Marshal and the Court confirmed that it was part of the courts’ jurisdiction. [Next page](https://boards.straightdope.com/t/constitutional-originalists-opinion-of-judicial-review/817421.md?page=2)