Last month, I wrote about the facts of the highly controversial G.G. v. Gloucester case which is scheduled to be heard by the Supreme Court in the near future. On March 6, the Supreme Court sent the case back down to the Fourth Circuit in light of President Trump’s recent actions regarding transgender bathroom policy. Had the Court heard the case, a majority of Justices, not legislators or executive agents, would have set a major precedent on the topic of transgender bathroom usage.


Judicial Review: Perennial Controversy

The topic of judicial review, the ability for the Court to invalidate legislative and executive actions that a majority of Justices believe to be in contradiction with their interpretation of the Constitution, is a controversial topic to say the least. What makes the topic so interesting is that the term judicial review was used often during the era of the Constitution’s debate, and it is stated often in Supreme Court cases throughout history; however, the term judicial review is nowhere to be found in Article III of the Constitution itself, the section of the document which outlines the judicial branch’s structure and duties.


How can the Supreme Court’s most powerful tool not even be constitutionally granted? Does this mean the Court should not have the power to invalidate legislative and executive actions? Is everything a lie?


A quick “no” will suffice to answer the last question, however a detailed analysis of the era of the Constitution’s debate, a look at the pivotal Marbury v. Madison decision of 1803, and contemporary Court decisions will be required to answer the above two questions. Let us begin our exploration into the controversy of judicial review by analyzing the argument between Alexander Hamilton and Robert Yates.


Brutus vs Hamilton

In the late 18th century, intense debate was going on over the oncoming state decisions regarding the ratification of the Constitution. Two factions formed at this time: Federalists, those who wanted the Constitution to be ratified, and Anti-Federalists, those who did not support the passage of the Constitution. Chief among the concerns addressed by these two groups was the structure and duties assigned to the Supreme Court. In 1788, two men, Alexander Hamilton writing as a Federalist and Robert Yates writing as an Anti-Federalist under the pseudonym of Brutus, published opposing works on the subject. What was their main point of contention? Judicial review.


Brutus’s Argument:

Brutus was highly concerned with the way in which the Court would use the power of judicial review if it was granted. Brutus wrote that the Supreme Court would be provided with the right “to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away.” He feared that the Court would become “superior” to its fellow branches if given the power of judicial review, as that power would enable the Court to subjectively apply “the spirit and intention” of the law as opposed to the objective “natural and ob[vious] meaning” of the law’s words.


In Brutus’ opinion, the Court’s superiority would take control of the Constitution out of its originators hands – the people and their representatives – and into the authority of independent and unaccountable judges.


Hamilton’s Argument:

On the other hand, Hamilton strongly supported the Court’s use of judicial review. He wrote that it is the Court’s duty “to declare all acts contrary to the manifest tenor of the constitution void,” and without judicial review, “all the reservations of particular rights or privileges would amount to nothing.” 


He directly rejected the notion that judicial review gave the Supreme Court “the power of construing the laws according to the spirit of constitution,” and in so doing “enable that court to mould them into whatever shape it may think proper.” He referred to this fear as “false reasoning upon misconceived fact.” However, other than pointing to the high intelligence of the Justices and trusting the States’ models of an independent judiciary – courts that are separate and distinct bodies from the legislative and executive bodies – as historical precedent, Hamilton provides few other justifications for his conclusion that the Supreme Court’s power of judicial review is entirely harmless.


In short, Brutus concluded that it was necessary to have the Constitution regulated by Congress and the American people, while Hamilton concluded that it was necessary to allow the Supreme Court to regulate the Constitution for the American people.


While Hamilton’s beliefs may have been codified with the ratification of the Constitution in 1788, the passage of time, as will be shown through the future articles in this judicial review series, has not eliminated the merits of Brutus’ well-argued worries.