Is Judicial Review Constitutional?

[Napoleon XIV]

It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

What provision of the Constitution authorizes judicial review?

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Even if one takes the opinion that there is not an absolute grant of the power of judicial review to the Supreme Court under Article III Section 1 within what is understood to be "the judicial Power of the United States", Congress has from the very inception of the federal Judiciary given the Courts the authority to "carry into Execution" Article VI Clause 2.

The concept of judicial review was established by the court itself selectively interpreting the Judiciary Act to support something that wasn't originally intended. The idea was rightfully opposed by President Thomas Jefferson, who clearly did not believe it was Constitutional, as well as by James Madison.


"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."
--Thomas Jefferson

“Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”

If Mr. Madison had doubts post hoc, he certainly did not write them into the Constitution.  Nor did Jefferson, seeing as how he was in Paris at the time of drafting.

With or without the Judiciary Act, the power was there.  Now, we can disagree as to the scope or what should be done with it (or whether Congress should restrict it, as they can), but it's rather silly to argue it doesn't exist.  It's there either by design or mistake, but it is there.