James Madison and the Power of Judicial Review

This guest blog post was written by Dr. Jeffrey Broadwater, Professor of History at Barton College in Wilson, North Carolina.

We think of judicial review—the power of a court to set aside a law as unconstitutional– as the primary means of enforcing the United States Constitution.  At the same time, we remember James Madison as “the Father of the Constitution.”  It would be logical then to assume that judicial review must have been Madison’s brainchild, but the story of judicial review is a bit more complicated.

At the start of the Constitutional Convention in May 1787, Madison hoped to curb the power of the state assemblies, and although he wanted to strengthen Congress, he also wanted to put checks on the national legislature.  Madison seemed to assume the courts would refuse to enforce obviously unconstitutional legislation; he specifically mentioned ex post facto laws. Otherwise he said almost nothing about judicial review. Instead, Madison proposed that Congress be given the power to veto state laws—he called it “the congressional negative”– and that acts of Congress be subject to review by a “council of revision” consisting of the president and several federal judges.

The other delegates disagreed. In lieu of the congressional negative, they adopted the Supremacy Clause, which required state courts to abide by federal law, state law notwithstanding. Rather than creating a council of revision, the convention vested the veto power solely in the president.

During the ratification debate, Madison suggested the existence of a power of judicial review in his Federalist No. 39 and No. 44 essays, but he complained privately that judicial review improperly exalted judges over legislators, and he doubted a court could enforce an unpopular decision.

Why the reservations about judicial review?  Madison understood the idea, but in the 1780s, judicial review was little more than a theory. Few courts had actually exercised the power; even the popular notion of the separation of powers was a murky concept.  American courts performed a myriad of non-judicial functions from licensing taverns to poor relief. They did not always inspire great confidence. Colonial Americans had often viewed British judges as agents of the Crown. American judges were frequently untrained amateurs, and some of them were overtly partisan.  Madison had reasons to minimize the jurisdiction of the federal courts. Many voters in his native Virginia feared they might be too sympathetic to British creditors or other out-of-state litigants.

But politics, and a judicial revolution that accompanied the nation’s constitutional revolution, made an expanded role for the courts palatable to most of the Founders. After the Constitution was ratified, Madison introduced in Congress a package of constitutional amendments that became the Bill of Rights.  Skeptics dismissed a bill of rights as unenforceable.  Madison, who hoped amendments would placate moderate critics of the Constitution, responded with an argument Thomas Jefferson had suggested to him in a March 15, 1789 letter: the courts could enforce them.  Meanwhile, the courts began to change.  Lawyers replaced non-lawyers on the bench, judges tempered their partisanship, and courts confined their duties to litigation.  Judges grew in prestige, and judicial review, once almost a constitutional afterthought, became an accepted part of American law.

Jeff Broadwater

Barton College

July 18, 2012

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