The impact of judicial review has been profound and often detrimental to the rule of law in America.  Judicial review is the power of the courts to void federal, state, and local laws and ordinances that they have determined to be incompatible with the U.S. Constitution.  Certainly, national and state legislatures have passed laws that have been unconstitutional.  Determining the constitutionality of a law has frequently been a tortured process, and it would be naive to imagine that courts generally, and the U.S. Supreme Court specifically, have responsibly exercised the power of judicial review.  The nomenclature of strict construction, loose construction, interpretivism, noninterpretivism, originalism, nonoriginalism, etc., makes it clear that there are a variety of ways to construe the Constitution.  Justices and judges not only must decide upon a jurisprudence but must contend with internal and external political circumstances, such as the ideological divisions within a court that is dealing with a particular case; ideological divisions between different courts (e.g., Justice Brown’s precedent regarding separate-but-equal, established in Plessy v. Ferguson (1896), was a serious problem for Chief Justice Warren in Brown v. Board of Education (1954)); and the way in which their decisions and actions will be received by other institutions of the government, academia, and the public.


The credibility of the Supreme Court as an impartial institution would be jeopardized if ideologically driven jurisprudence were in plain view.  Thus, justices obscure their ideologies by auspiciously grounding judicial review in the Constitution.  Nevertheless, when justices adamantly reject the reasoning of their brethren in a particular case, or when a later court rejects the precedent established by a previous court, one or the other must be more or less grounded in the Constitution.  Diametrically opposed positions cannot both be correct.  Moreover, the rationale that the Constitution is a living document that is capable of adapting to new circumstances is fallacious.  If that were so, the amendment process in Article V of the Constitution would be superfluous, and so-called fundamental rights, circumstantially tenuous.

No serious student of the Supreme Court, however, would deny that it has fundamentally transformed the Constitution and, specifically, American federalism.  On occasion, the courts have admirably exercised judicial review to limit the national government when its laws exceeded constitutional limits.  Nevertheless, the overall impact of judicial review has been nationalistic, legitimating the expansion of the national government when it should have restricted it and delegitimating state public-policy prerogatives when it should have legitimated them.  The corpus of U.S. Supreme Court case law makes this clear.

In Hammer v. Dagenhart (1918), the Court declared the Keating-Owen Child Labor Act (1916) unconstitutional.  The act, based on Article I, Section 8 (the Commerce Clause), prohibited the shipment of the products of child labor among states.  In the Court’s opinion, Justice William R. Day voided the statute on Article I, Section 8 and Tenth Amendment grounds.  He maintained:

In interpreting the Constitution it must never be forgotten that the nation is made up of States to which are entrusted the powers of local government.  And to them and to the people the powers not expressly delegated to the national government are reserved. . . . [I]f Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of government destroyed.

In contrast, United States v. Darby (1941) established a new precedent.  In deciding the constitutionality of the Fair Labor Standards Act (1938), Justice Harlan Fiske Stone ruled:

Hammer v. Dagenhart was a departure from the principles which have prevailed in the interpretation of the commerce clause. . . . It should be and is now overruled. . . . Congress, having by the present Act adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards, it may choose the means reasonably adapted to the attainment of the permitted end, even though they involve control of intrastate activities.

More recently, in United States v. Lopez (1995) the Court did declare unconstitutional the Gun-Free School Zones Act of 1990, in a 5-4 decision.  The dissenters, however, agreed with the Clinton administration that a gun in a school zone might result in violent crime that impacts the national economy in several ways: First, there is the cost of violent crime; second, guns in school zones make people unwilling to travel to such “unsafe” areas; third, an unsafe school area threatens the learning environment; and fourth, a diminished educational process results in a less-productive citizenry, which negatively impacts the “Nation’s economic well-being.”  And, even though dissenting Justice Breyer argued that the acceptance of the government’s argument would not authorize a general national police power, he was, according to Chief Justice Rehnquist, “unable to identify any activity that the States may regulate but Congress may not.”  In his dissent, Justice Souter argued that “a holding that the [Gun-Free School Zones Act] falls within the commerce power would not expand the scope of that clause.  Rather, it would simply apply pre-existing law to changing economic circumstances.”  In other words, the four dissenters were prepared to grant to the national government general police powers—i.e., the power to regulate the health, safety, and morals of the American people.

The magnitude of this power is the very reason it is not to be found in the U.S. Constitution.  The Framers would never have conferred on lifetime-tenured justices and judges the power to trump state-based popular control in the pursuit of national policy objectives.  The overwhelming majority of the Framers loathed the sort of centralized unaccountable power that Supreme Court judicial review has become.  This tremendous public-policy power places a chill over just about every conceivable public-policy issue.  The argument that the chill emanates from the U.S. Constitution itself is only half correct.  In Marbury v. Madison, Chief Justice John Marshall articulates the correct half when he argues that the written U.S. Constitution is designed to control “any legislative act repugnant to it.”  But by what constitutional authority is it, in Marshall’s words, “emphatically, the province and duty of the judicial department, to say what the law is”?  To answer that, we must consider the fundamental foundation upon which legitimate judicial review was supposed to be placed: the consensual union of the states.

When Chief Justice Marshall wrote the opinion for Marbury v. Madison in 1803, he provoked a Jeffersonian political backlash against the Federalist-dominated Court that resulted in acrimonious criticisms of the institution, the justices, and even impeachment proceedings against Justice Samuel Chase (a first strike against the Chief Justice).  Nevertheless, the precedent was set, and Marshall placed in the Court’s arsenal a highly effective weapon against popular control or, more specifically, states’ rights.  That states’ rights was the real focus of Marshall’s jurisprudence is made clear by the quantity and thrust of his opinions attacking state laws.  Nevertheless, when Marbury was decided, other strong bulwarks against centralization were still in place, so the states were still relatively secure.  They still had nullification, interposition, and secession as options.  National judicial supremacy over state courts was not decided in civil cases until 1819 (Martin v. Hunter) and in criminal cases until 1821 (Cohens v. Virginia).  Selective incorporation of the Bill of Rights was, for the most part, rejected until 1925 (Gitlow v. New York).

Once states’ bulwarks were dismantled by the Court, exercising a general national police power became much more probable.  However, at the hands of conservative chief justices—Melville Fuller (1888-1910), Edward White (1910-21), and William Howard Taft (1921-30)—constitutional construction was utilized to obstruct progressive responses to pressing economic and social problems.  By the 1920’s, a significant academic consensus held that the Court’s role needed to be reformulated.  Instead of asking what was constitutionally permissible, much of the scholarship stressed what was considered to be socially and politically imperative and asked how judicial review could be utilized to address what were believed to be pressing public-policy challenges.

There was mounting pressure for change.  In 1908, Louis Brandeis called for a “judicial awakening to the facts of life.”  He bemoaned the fact that “In the course of a relatively few years hundreds of statutes which embodied attempts (often crude) to adjust legal rights to the demands of social justice were nullified by the courts, on grounds that the statutes violated the constitutional guaranties of liberty and property.”

Roscoe Pound, for example, called for a “new judicial creed,” in which the U.S. and state constitutions were to be functional instruments in the hands of judges.  He advocated an “engineering interpretation” of law and categorized jurisprudence into three schools: the historical, analytical, and philosophical.  The philosophical school held the keys to a brighter future: “Today we are seeing the beginning of a reaction from the juristic pessimism of the historical school and the juristic inertia of the later generations of the analytical school.  The pressure of new and unsecured interests, of new and insistent human claims, is compelling us to revise our juristic creeds.”  Pound encouraged the courts generally, and the U.S. Supreme Court specifically, to assume a pivotal role in the “machinery of social control or social engineering . . . consciously and avowedly as befits the science of today.”

In a 1932 address before the New York State Bar Association, Justice Benjamin N. Cardozo acknowledged the debt owed to Chief Justice Marshall’s early precedent-setting cases.  He told his audience,

The emergent evolution of a formula into a precept is determined by its dimensions, spatial and temporal. . . . Considerations of space and time affect the capacity of the formula to shape the law thereafter. . . . We misread history in a most unrealistic fashion if we say that the seeds of generations of later judgments were not in Gibbons v. Ogden (1824) and McCulloch v. Maryland (1819).

Both of those landmark cases laid the groundwork for extensive expansion of congressional commerce powers.  However, Justice Cardozo misread history in a most unrealistic fashion if he failed to see the seeds of McCulloch v. Maryland, Gibbons v. Ogden, and every subsequent case in Marbury v. Madison.

On the bicentennial of this landmark decision, it is important for us to ponder the extent to which judicial review has impacted the rule of law.  In light of the flip-flops and fluidity of U.S. Supreme Court case law, the rule of law has been converted to the rule of the men and women who dominate the national government.  Without a viable American federalism, there can be no rule of law.  Such is the legacy of Marbury v. Madison.