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30 June 2015


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Dave Schuler

Not only was the power of legal review not given to the Supreme Court, during the Federal period and somewhat beyond the power of review was one shared among the branches of government. See, for example, Jackson's proclamation during the Nullification Crisis of 1832.


Additionally, in the 18th century both in England and the colonies there had been a tradition of shared review, including interpretation by the people.

The court seized the power of legal review and it has been convenient for the executive and the Congress to allow it to retain it.


Dave Schuler

Review for constitutionality was not given to the federal courts in any text among the founding documents. pl

The Twisted Genius

The federal courts do not have the Constitutional right and power of judicial review, yet advocacy groups, states and damned near anyone who holds a strong opinion on anything turns to the federal courts for judicial review. How do we change this?

cville reader

Stewart's apparent indifference to persecution is far more alarming than his lack of knowledge about the Constitution.

Are we about to relive the last days of the Weimar Republic?

Is Stewart's performance a "Mack the Knife" moment?

nick  b


I watched 15 or so minutes and lost interest. Am I correct in assuming that this is the part of the show you are referring to? Beginning ~5:16 ending ~5:43 on the recording.

"So the founding fathers come up with this unbelievable idea for a country, awright? Then some jackass throws in something about co-equal branch of government - possesses judicial review over the constitutionality of legislation, and the founding fathers come in the next day and they're like 'who the **** put dis in here?! What is dis?! I told you we had article one, two and four! I don't know what three is! I don't know what that is! I didn't write that!'"

If I missed something from my truncated viewing please correct me.

While I agree with you that judicial review in never explicitly stated in the Constitution, it has been argued that it is implied in sections one and two of article three, and I can see merit in that argument. I feel confident you don't agree and I respect that. But I remain of the opinion that Jon Stewart can make a joke that includes an interpretation of the implied powers of the Supreme Court, and it can still be funny. Stewart has often warned about the dangers of viewing his show as an information source and not a comedy show. I take that at face value. I will miss him when he is gone.


nick B

Yes, you missed the fact that the framers did not in any way give the Article 3 courts the power of judicial review. John Marshall merely seized it. pl



Implied in Sections 1 and 3? How? pl

nick  b


Briefly, Section I establishes that the judicial power of the United States as being vested in the Supreme Court. I read that as establishing the Supreme Court as being the top judicial power in the land.

Section II says: 'The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States...." This clause can be interpreted to mean that the judicial power, ie: Supreme Court, is the last word and has the power to determine whether a law (our laws are made by legislation) are true to the Constitution, thereby providing an implied power of judicial review of those laws (legislation) as they come to the court, thereby protecting the Constitution.

As you know, the concept of judicial review was not unknown to the Framers, as it was a part of English common law. Further, judicial review was included in the Constitutions of some of the original 13 States prior to the drafting of the US Constitution.

I'm sure there are far more artfully worded versions of this interpretation made by others of greater skill and knowledge. I would also point out that it is as I said, an interpretation.


nick b

"the top judicial power in the land." IMO judicial review is political, not "judicial." pl

nick  b


Yes, that is what it has become.


Off topic, but things seeem to be about to hot up in Ukraine. Ukrainian drones have detected an advance base for Russian and/or separatist forces, in a location to threaten Mariupol, a crucial coastal city. The base has been erected within the past two weeks.


Nancy K

He is a comedian not a Constitutional lawyer and his show will be ending soon. I have to say though I really enjoy Jon Stewart, even if his knowledge of the US Constitution and judicial review is lacking. I wonder how OReily, or Hannity or Limbaugh would do on a quiz of the Constitution. for that matter I wonder how I would do.


nancy K

Jon Stewart is just a comedian? He is a philosophy graduate of William and Mary who has a staff of expensive NY writers. He has been playing a major political role ever since the "Crossfire' incident in which he deliberately destroyed a panel of Conservative players. If he does not know what the US Constitution says nor what judicial review is about he should shut his mouth rather than launch vicious attacks on people who DO know. pl

cville reader

Thoughtful conviction is passé. Snark is cool, and has the added benefit of flattering the audience, by making them feel smarter than the rubes who moral/religious issues seriously.

Stewart is simply mirroring the culture.

scott s.

The so-called Virginia Plan proposed:

Resd that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by of the members of each branch.

This proposal to involve the Judiciary in review of laws passed was voted down 4 separate times during the convention.

But I am also concerned about yesterday's opinion by Justice Ginsburg that in the election clause the term "legislature" actually means "legislature and anything else we 5 justices deem suitable".


The acceptance of the concept of judicial review was clearly one of the selling points for the adoption of the Constitution and was discussed at length in Alexander Hamilton's Federalist Paper Number 78.

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . .

[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental"

In Federalist Paper 80, Hamilton explained how the Supreme court would have the duty to declare unconstitutional any state law that violated the Constitution.

"The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State Legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the Convention, are prohibited from doing a variety of things; some of which are incompatible with the interests of the Union, and others with the principles of good Government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the Government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the Fœderal Courts to overrule such as might be in manifest contravention of the Articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the Convention preferable to the former, and, I presume, will be most agreeable to the States." https://en.wikisource.org/wiki/The_Federalist_(Dawson)/80

Federalist Paper 82 explains the supremacy of the United States Supreme Court on Constitutional issues, or as issues of "national concern"

"Here another question occurs: What relation would subsist between the National and State Courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of Fœderal cognizance, in which it is not to have an original one, without a single expression to confine its operation to the inferior Fœderal Courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local Courts must be excluded from a concurrent jurisdiction in matters of National concern, else the Judiciary authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed Government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the National and State systems are to be regarded as one whole. The Courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of National justice and the rules of National decisions. The evident aim of the plan of the Convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the Courts of the Union. To confine, therefore, the general expressions giving appellate jurisdiction to the Supreme Court, to appeals from the subordinate Fœderal Courts, instead of allowing their extension to the State Courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation."


The Federalist Papers were the way the Constitutional Convention explained the meaning of the Constitution during the ratification process and have often been considered to be expressions of the legislative intent of the Constitutional conventions.

It seems to me to be clear to me that the founders intended the Supreme Court to be the arbiter of the constitutional questions, by judicial review not only of federal statutes, but also state statutes and state judicial decisions as well to the extent that they were of "national concern" in the parlance of the time. The name "Supreme" was intended to mean top power to decide whether a federal or state act or judicial decision complied with the Constitution.

Whether we agree or disagree with the recent decisions, the process being followed by the Supreme Court s consistent with the intent of the Federalist founders of this nation.

This is exactly the basis for Marbury v. Madison.



Hamilton's argument is only that. It does not appear textually in the US Constitution or any amendment. Since Hamilton and John Marshall were both members of the Federalist Party who favored a strong central government Hamilton's partisan opinion should not be surprising. we should remember that Marbury was also a Federalist Party member. pl


If there were no judicial review, what would happen if the Congress were to pass a law that violated some part of the Constitution?



What violates the constitution is a matter of political opinion. Elections and impeachment would be the remedy for an unpopular outcome. Today we have nine un-elected lawyers to judge what is constitutional. What makes their opinions so special? pl


That is technically true, but the meaning of the words "judicial power" must be read within the context of the precedential understanding of those terms at the time. Likewise, the use of the word "supreme" really was meant to imply supremacy of the court to determine whether things comported with the Constitution or not.

Without effective judicial review, chaos would ensue as the Executive and Legislative branches struggle and the various states each vie for supremacy. Ever since Marbury v. Madison, the process has worked pretty well.

The idea of "judicial power" is like most other legal terms--loaded with meaning based upon precedential experience. The Constitution must be read within the context of the discussions at the time of its passage.

The phrase in Article III, "The judicial Power of the United States, shall be vested in one supreme Court." really says it all, just like transubstantiation covers the mystery in Catholic sacrament of Holy communion. It is not the simple words and their dictionary definitions that gives the power their power, it is the cultural context that make the meaning.

The Federalists got their Constitution ratified. The fact that they won the argument for the day has consequences and makes their ideas operative by the consent of the governed to this day.

The opponents of judicial review were on the scene too, but their objections did not prevail.

Robert Yates from New York wrote under the pan name of "Brutus" and opposed the concept of judicial review, arguing that the judicial branch proposed in the Constitution would go beyond the "words" and expand its power without limitation. "The supreme court under this constitution would be exalted above all other power in the government, and subject to no control. The business of this paper will be to illustrate this, and to show the danger that will result from it. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible." http://www.thefederalistpapers.org/antifederalist-paper-78-79

Echoes of Yates argument ring from the dissents in the Gay Marriage and Obamacare dissents.

We Americans keep fighting the same old battles. It is one of our strengths that we can contend to find currently applicable and workable solutions.

As my wife who is also a lawyer often says, We hire judge to make rulings because having them rule whether we like the decisions or not is better than resolving our differences in a shoot-out in the parking lot."


Col: Judicial review survives because it suits enough people for it to survive. Without judicial review, we would still have McCain/Feingold on campaign finances. And without judicial review, we would still have a multitude of differing abortion laws. Without judicial review, the EPA would be issuing stronger anti-pollution rules. Etc, etc. Name the issue. There is always someone who wants an outcome they cannot get from the democratic process.

Judicial review (Marbury v. Madison) was a judicial usurpation, but it survives because high priests of law (judges and lawyers) benefit--and have always benefitted--from this usurpation.



This is a special pleading from the legal trade. Government is not about lawyers and law schools. pl


The Supreme Court is about politics. Ultimately, Law is politics expressed in words and procedures. No law get passed unless it is supported with a political consensus. Law and politics cannot be separated because they are one and the same, sort of like the Holy Trinity is all about a single God.

The problem is that at some point political decisions must be arbitrated to avoid dysfunction, gridlock and chaos. Our tripartite government carries within it the reality that a mechanism is necessary to preserve the peace where politics conflict. That is why a Supreme Court is necessary to have a civil society.

There is no question but that the Supreme Court acts as arbiter of political opinions. Some time the Court gets it badly wrong politically as the example of Roger B. Taney attests. https://en.wikipedia.org/wiki/Roger_B._Taney

One thing that seems certain is that the Supreme Court protects its political credibility and we have seen it swing its decisions to conform to the political winds. The Court moved from Plessey v. Ferguson to Brown v. Board of Education and wised up on the New Deal when FDR tried to stack the Court to enable a national political consensus of government intervention into economic affairs.

On Obamacare, Roberts preserved the court's authority though he may have stretched statutory construction. The Court knew that killing Obamacare would have been the greater harm. It was a political decision.

What makes their opinions special is that these nine lawyers are elected, just not by the individuals. They are elected by the President and the Senate who are elected by US. They are vetted by public opinion and national consensus as Robert Bork well knows.

These nine people know they are politicians and usually they play their role as a group quite well even though terrible mistakes can happen. If the people really hate their decisions, they can amend the constitution as is shown by the fact that I can now legally drink alcohol if I so choose.

Everything about governing is politics and to a large degree, the Constitution is what we presently believe it to says. It meaning does change over time. The fact it can change is why we still allow it to have power over US.

What makes the nine Justices special is that they are our Priests of Politics and the Law. We, the People, have made them special by our consensus to be governed by them and the other two branches.

If the Court loses the support of the political consensus, the government will fail. Let's hope the Nine make wise decisions most of us can support. Else, chaos.



More lawyerly BS. pl


The fact that their appointment was subject to the advice and consent of the Senate of the United States of America? That seems to be a process whereby otherwise ordinary people's opinions become extraordinary privileged as they're put in charge of various parts of the federal government.

Interesting idea actually: What would happen if the Senate refused to fill a vacancy on the court's bench, leaving only 8 justices? Conceivably, the Senate could vote to impeach all the Justices and refuse to appoint more. I think I'm well into the realm of fantasy there though.

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