Judicial Review and Non-Enforcement at the Founding

90 Pages Posted: 4 Mar 2014 Last revised: 20 Nov 2014

See all articles by Matthew J. Steilen

Matthew J. Steilen

State University of New York (SUNY) at Buffalo, Law School

Date Written: March 24, 2014


This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this same period the historical record contains hundreds of discussions of judicial review. The Article then advances an explanation of why there was considerable support for judicial review but none for non-enforcement. Judicial review followed from what that generation called “expounding” the law, which meant explaining it. A court was supposed to explain the law in the course of deciding a case. Explaining the law involved examining all potentially relevant legal rules and showing how they fit together to deductively justify the judgment reached. In that context, if a statute could not be reconciled with the constitution, it would not be given effect. Since the president neither decided cases nor expounded the law, he did not enjoy a power of non-enforcement parallel to the power of judicial review.

Keywords: judicial review, non-enforcement, expounding, expound, exposition, case or controversy, Jefferson, Madison, Kamper v. Hawkins

Suggested Citation

Steilen, Matthew J., Judicial Review and Non-Enforcement at the Founding (March 24, 2014). University of Pennsylvania Journal of Constitutional Law, vol. 17, p. 479, November 2014, SUNY Buffalo Legal Studies Research Paper No. 2014-020, Available at SSRN: https://ssrn.com/abstract=2403956 or http://dx.doi.org/10.2139/ssrn.2403956

Matthew J. Steilen (Contact Author)

State University of New York (SUNY) at Buffalo, Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States

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