The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. By the early seventeenth century, English law subjected the by-laws of corporations to the requirement that they not be repugnant to the laws of the nation. The early English settlements in Virginia and Massachusetts were originally corporations and so these settlements were bound by the principle that colonial legislation could not be repugnant to the laws of England. Under this standard, colonial lawyers appealed approximately 250 cases from colonial courts to the English Privy Council, and the Crown reviewed over 8500 colonial acts.
After the American Revolution, this practice continued. State court judges voided state legislation inconsistent with their respective state constitutions. The Framers of the Constitution similarly presumed that judges would void legislation repugnant to the United States Constitution. Although a few Framers worried about the power, they expected it would exist. As James Madison stated, “A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.”
In fact, the word “Constitution” in the Supremacy Clause and the clause describing the Supreme Court’s jurisdiction appeared to give textual authorization for judicial enforcement of constitutional constraints on state and federal legislation. Indeed, before
Marbury, Justice Chase observed that although the Court had never adjudicated whether the judiciary had the authority to declare laws contrary to the Constitution void, this authority was acknowledged by general opinion, the entire Supreme Court bar, and some of the Supreme Court Justices.
By 1803, as Chief Justice Marshall acknowledged in Marbury, “long and well established” principles answered “the question, whether an act, repugnant to the constitution, can become the law of the land.” Marshall concluded that “a law repugnant to the constitution is void; and that courts . . . are bound by that instrument.”
As such, contrary to the traditional account of Marbury, MarshallÂ’s decision did not conjure judicial review out of thin air, but rather affirmed the well-established and long-practiced idea of limited legislative authority in the new context of the federal republic of the United States. In doing so, Marshall recommitted American constitutional law to a practice over four centuries old.
The Yale Law Journal Online - Why We Have Judicial Review
