The Initiation of Judicial Review

[Robert Justin Lipkin]

       Sandy's post suggests a host of interesting issues that,  I suggest, if the members agree, should be examined under a different thread--called "The Initiation of Judicial Review."  First, for the sake of precision and I hope not be persnickety, my original post said "virtually initiated" acknowledging that judicial review was used before Marbury.  Second, although historical accuracy is valuable in itself, what is taken to be the (virtual) initiation of a social practice certainly plays a conspicuously important role in that practice, even if its purported role (or place) in the practice is inaccurate. This is especially true when the practice is two hundred years old and has critical significance in contemporary society.

       Second, if I understand Sandy and Jack's footnote correctly, it seems to contain (or at least imply) two sources of the practice of judicial review. The first is the Judiciary Act of 1789 and the second is the original understanding of Act III (that is, the federal judicial power as stated in the Constitution.) Yet, I find these two elements to be in possible conflict.  If the original understanding of Art. III included the power of judicial review, why was is it necessary to explicitly include judicial review in the Judiciary Act of 1789? Of course, there might have been perfectly good historical reasons for explicitly articulating what was already implicit in Art. III. But if so, what were they? Also, if the Judicial Act of 1789 was necessary to establish judicial review because the original understanding of Art. III did not include it, or because there existed a controversy over whether judicial review was included in Art. III, did anyone object to the Judiciary Act of 1789 on the ground that it unconstitutionally gave the Court a power not authorized by the Constitution? Without some conception of the original meaning of the judicial power, the Judicial Act of 1789 was arguably unconstitutional.

       My own view is that, in this case as in others, historical evidence is typically inconclusive.  But even if that is wrong, I'd be surprised if anyone in the generation ratifying the Constitution could have anticipated Marshall's revolutionary use of judicial review/supremacy throughout his tenure as Chief Justice. If that is right, then Marshall's use of judicial review initiated a revolutionary process of constitutional lawmaking. 

Bobby Lipkin
Widener University School of Law
Delaware