Who Has the Last Word? Three Theories of Judicial Review

Abstract

Judicial supremacy — the doctrine that the Supreme Court’s interpretation of the Constitution is binding on Congress and the Executive — is now embraced by the Court, supported by most lawyers, and generally accepted by the public as conventional wisdom. Yet the theory has not only been rejected by some of our greatest Presidents but its legitimacy continues to be challenged by many of our most prominent constitutional scholars on both the right and the left. While it may be cogently argued as a matter of public policy that the judiciary ought to have “the last word”, the validity of the theory largely rests on a twentieth-century reconstruction of constitutional history.

In particular, the issue of the judiciary’s power to refuse enforcement of an Act of Congress is generally viewed as requiring a stark choice between two polar alternatives — either acceptance of judicial supremacy or no judicial review at all. But among the Founders (including Thomas Jefferson) there was also strong support for an intermediate “departmentalism” theory.

This broader debate among the three competing theories is an indispensable part of the context of the much-celebrated (and commonly misread) 1803 decision in Marbury v. Madison, which rejected the theory of legislative supremacy (the British system) and upheld the Court’s authority to consider the validity of an Act of Congress. But — contrary to a revisionist interpretation — Marbury did not establish judicial supremacy and instead is demonstrably consistent with the far less sweeping departmentalism rationale.

I. Introduction II. A Semantic Minefield III. Legislative Supremacy IV. Departmentalism versus Legislative Supremacy V. The Assault on the Judiciary VI. The Marbury Case VII. Just What Did Marbury Decide? VIII. The Aftermath of Marbury IX. The Court Asserts Its Supremacy X. Challenging Judicial Supremacy

Keywords: Judicial Supremacy, Judicial Review, Constitutional History, Marbury v. Madison, Legislative Supremacy, Departmentalism