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The Constitution's Text Established Judicial Review (Again) [Updated]
Michael Ramsey

I'll turn to the Supreme Court's opinions from last month shortly, but first a pet peeve...

In Politico, this essay by Joshua Zeitz [via How Appealing] begins: 

Last December, during oral arguments in Dobbs v. Jackson Women’s Health Organization, the case in which the Supreme Court overturned Roe v. Wade, Justice Sonia Sotomayor noted that “there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.”


In a decision penned by Marshall, who now served as chief justice, the court [in Marbury] held that Madison had violated the law by withholding the commissions but also declined to order him to do so. In the same breath, the court asserted the right to strike down federal or state laws that it deemed unconstitutional. And so the concept of judicial review came into being.

Critics are correct on one point: The Constitution is silent on judicial review. It says only that the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” ...

Wrong, wrong, wrong.  (As I've said a few times before.)  As law professors, one of the first lessons we give students in reading legal texts is: keep reading.  That is not all the Constitution says on the matter.  

Under Article III, Section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ...

Thus the Constitution defines the scope of the "judicial Power" to include cases arising under the Constitution -- which can only mean cases arguing that governmental action is unconstitutional.  (How else would a case arise under the Constitution?).

Article VI then confirms both the legal nature of the Constitution and its superiority as law to be applied by judges: 

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

So judges are bound (in their decisions) by the Constitution, which is supreme law (that is, superior over other law in case of conflict).  Necessarily, then, applying the Constitution is part of the "judicial Power."  And the Constitution's superiority over federal statutes is made express by the phrase "Laws of the United States which shall be made in Pursuance thereof."  Only laws made pursuant to the Constitution -- that is, laws not contrary to the Constitution -- are themselves part of supreme law.  In cases of conflict, judges apply the Constitution (superior law) and not the unconstitutional statute (which is not superior law).  That's all Marbury claimed, and it follows directly from the Constitution's text. 

The idea that judicial review was invented by Marshall is a nonoriginalist canard, designed to make originalism look internally incoherent.  Originalists should object at every opportunity.

To its credit, the essay goes on to say:

But many of the framers assumed that some form of review was a given.

Judicial review as a concept was well-established in 1787. English courts had long issued rulings upholding or striking down laws — rulings that, in aggregate, and alongside centuries of commentary, formed the basis of England’s unwritten Constitution [Ed., I have some serious doubt about this point, but what follows is surely right]. It was certainly well-established in the United States, even on the eve of Marshall’s decision. Between the Constitution’s ratification and 1803, federal and state judges struck down at least 31 statutes on the grounds that they violated either the federal or state constitutions. These rulings were generally received with silent acquiescence.

We also know that many of the Constitution’s framers and loudest proponents anticipated the Supreme Court’s role in adjudicating the constitutionality of laws and actions. In Federalist Paper 78, Alexander Hamilton said so explicitly, writing: “If it is said that the legislative body is themselves the constitutional judges of their own … it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. … It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” ... [further historical discussion omitted]

The men who gathered in Philadelphia largely agreed that courts would serve as arbiters of what was and was not constitutional. So did delegates to state-level conventions that ratified the new Constitution. Delegates in seven such meetings discussed the concept of judicial review no fewer than 25 times. In addition, at least 74 federalist pamphlets, published in 12 of the 13 states, affirmed the court’s prerogative to strike down unconstitutional laws.

It’s clear from the record that the men who wrote the Constitution intended the Supreme Court, and the lower federal courts, to enjoy a constitutional veto over acts of Congress and of the states.

Agreed! (And very well summarized.)  But this confirms that the text (the whole text, not just Article III, Section 1) meant what it appears to mean.  There's no tension between the text and the framers' expectations.  The text provides for constitutional judicial review, as the framers understood.

Finally, the essay gets to its main point:

No less than the executive and legislative branches, the judiciary — particularly, the Supreme Court — is limited in just how much power it can exert. But only if Congress and the president exercise their right to check its power.

In theory, Congress could very easily pass legislation denying the Supreme Court jurisdiction over a new voting rights act, a law codifying the right to privacy (including abortion rights), and other popular measures. If they so chose, Congress and the president could go further, reducing the court to a shell of its former self, leaving it to adjudicate minor matters of little significance. ...

Perhaps, but the issue is more complicated, as for example is suggested by the excellent (though complex, and not written by me) discussion in the report of the Presidential Commission on the Supreme Court.

UPDATE: After the Dobbs oral arguments, Josh Blackman criticized Justice Sotomayor's comments on Marbury:

Justice Sotomayor was trying to make the point that many of the Court's decisions are not premised on the written Constitution. ... Sotomayor identifies Marbury as an example of such a case.

JUSTICE SOTOMAYOR: Counsel, there's so much that's not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that's what was intended. 

Huh? Absolutely nothing in Marbury said that the Supreme Court has the "last word on what the Constitution means." Nothing. That bold assertion of judicial supremacy would not be raised until Cooper v. Aaron. Indeed, one of the irrepressible myths from Cooper was that Chief Justice Marshall asserted this principle in 1805. Balderdash.

And to continue the argument, Cooper was not premised on the "structure of the Constitution." The Court merely asserted the power to bind everyone, everywhere, as a matter of ipse dixit. Cooper was consistent with the mode of judicial creativity that would mark the Warren Court.

Agreed.  Cooper is different from Marbury.

UPDATE #2:  Seth Barrett Tillman notes:

See 1 Steven G. Calabresi, The History and Growth of Judicial Review 25-26 (OUP 2021) ("[I]n the United States, in particular, the written Constitution contains no written judicial review clause .... The power of judicial review in the United States is deduced in The Federalist No. 78 or in Marbury v. Madison ... from a structural inference ....").

It's true that Marshall in Marbury relies first on structural inferences arising from a written constitution, and only secondarily on textual provisions.  But I think the textual provisions are a stronger basis.  It's quite possible, contra Marshall, to have a written constitution without judicial review.