Judicial review is the power of a court to assess the constitutionality of legislation, and to hold null and void any legislation it finds to contravene the Constitution. Although not mentioned anywhere in the US Constitution, the power was exercised by both state and federal courts from the nation’s inception, most prominently by the US Supreme Court in Marbury v. Madison (1803). In Marbury, borrowing from arguments advanced earlier by Alexander Hamilton in Federalist #78, and more general common law and colonial understandings, Chief Justice John Marshall set out a theoretical justification for the practice anchored in a court’s duty to decide cases according to law. In so doing, where a court finds a conflict between the fundamental law of the Constitution (adopted by “We the People,” acting in their sovereign capacity), and ordinary law (passed by legislatures), the court is obliged to give precedence to the former over the latter. Although this has been widely accepted as a legitimate practice arising out of a judge’s broader duty to decide cases according to law, there were always those who objected to judicial review as implicitly instituting “judicial supremacy,” where, by virtue of the exercise of the judicial review power, a judge’s interpretation of the Constitution was held to take precedence over that of any other. But why should the judge’s interpretation be understood as supreme, when elected members of Congress and the president—like judges—also takes oaths to uphold the Constitution and may have their own, perhaps more sensible, interpretation? Debates over these matters recur throughout American history, particularly in periods when, on matters of unusual political salience, the court’s interpretation of the Constitution is consistently at odds with that of other elected officials, or of the people (what, in recent years, has come to be called “extra-judicial constitutional interpretation”). For over a century now—beginning with the contestation in the late 19th and early 20th centuries between traditionalist judges wielding their judicial review powers versus the progressive innovations of the newly emerging American regulatory and social welfare state—the nature, theory, and practice of judicial review have been at the center of academic and popular discussion of US constitutional law. The subject has thus been approached from many angles, by scholars from different academic disciplines, with a diversity of questions in mind. Those researching judicial review will usually have in mind a particular angle rather than the whole subject.
We the People: A Progressive Reading of the Constitution for the Twenty-First Century