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The Origins of Judicial Review

John Yoo

University of California at Berkeley School of Law; American Enterprise Institute

Saikrishna Prakash

University of Virginia School of Law

University of Chicago Law Review, Vol. 69, Summer 2003

This year marks the 200th anniversary of Marbury v. Madison, the case which is often taught in law schools as establishing judicial review. Despite the absence of any broader political controversy over the role of the Supreme Court, akin to that which existed during the Civil War or the New Deal periods, academics from both ends of the political spectrum have attacked the legitimacy of judicial review. Recent critics have even argued that the Constitution, as originally understood, did not authorize courts to refuse to enforce unconstitutional legislation.

In this paper, we discuss the textual, structural, and historical roots of judicial review. First, we show that the constitutional text permits judicial review and we describe the severe difficulties associated with the claim that the Constitution is not law to be applied in the courts. Second, we explain that the constitutional structure requires the judiciary refuse to enforce laws that violate the Constitution due to its status as a coordinate branch of government. Simply put, the text and structure demand that the judiciary interpret and give effect to the Constitution in the course of performing its function of deciding Article III cases or controversies. Third, we refute the notion that the Founders did not understand the Constitution to establish judicial review. We trace how historical developments leading up to the ratification had made judicial review a familiar institution to the Founders, and we demonstrate that all those who discussed judicial review during ratification (there were dozens) agreed that the Constitution authorized judicial review. We conclude that those who argue that the Founders originally understood the Constitution to preclude judicial review have misread the historical record.

Number of Pages in PDF File: 90

Keywords: constitutional law, judicial review, separation of powers, federal courts, legal history

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Date posted: August 11, 2003  

Suggested Citation

Yoo, John and Prakash, Saikrishna, The Origins of Judicial Review. University of Chicago Law Review, Vol. 69, Summer 2003. Available at SSRN: https://ssrn.com/abstract=426860 or http://dx.doi.org/10.2139/ssrn.426860

Contact Information

John Choon Yoo (Contact Author)
University of California at Berkeley School of Law ( email )
Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-5089 (Phone)
510-643-2673 (Fax)

American Enterprise Institute ( email )
1150 17th Street, N.W.
Washington, DC 20036
United States
Saikrishna Prakash
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States

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