By Douglas V. Gibbs
Judicial Review is a doctrine the Constitution never named, that arrived by statute, and that has been legitimate ever since only because it kept happening.
There is an argument that says judicial review is a legitimate, even necessary, feature of the American system. It is implied by the structure, assumed by the Framers, and confirmed by long usage. There is a counter-argument, and it is the stronger one, that says judicial review is a power the Constitution never explicitly granted, which seized its authority and then ratified itself by nothing more than its own continued exercise.
It is the cleanest case in the whole constitutional story, and cleaner than any man, because there is no childhood to explain it away. A doctrine has no biography, no ambition, no party, no flaw of character. It is either in the text or it is not. And it is not.
What the doctrine is, in its plainest form, is this: five or nine unelected lawyers in black robes tell the elected branches, and the states, and the people what they think the Constitution means, with no appeal. That is not a small thing. That is the final word on the law of a republic, held by the branch the Constitution gives the least instruction about.
Let me be precise about the record, because the popular myth is that the Framers invented judicial review and handed it down like a birthright.
At Philadelphia, the closest the Convention ever came to judicial review was a proposal called the Council of Revision. Madison and Wilson wanted a joint executive-judicial body that would sit alongside the legislature with a veto over its bills; judges and the president together, reviewing the laws before they took effect. It was a serious idea, advanced by serious men.
And it was beaten. Repeatedly. The Convention took it up on June 4, 1787, and rejected it. It came back on July 21 and was rejected again. It returned on August 15, with compromise variants, and lost once more. The delegates kept reaching for a judicial check on lawmaking and kept declining to put it in the document.
What they ratified instead was Article III. And Article III does something remarkable: it gives federal judges tenure during good behavior and protection from salary cuts, and then it says almost nothing about what those judges may do to a law they believe is unconstitutional. Read Article III for yourself. There is no clause that says the Supreme Court may strike down an act of Congress. There is no clause that says it may strike down a state law. The power is simply assumed into existence by silence.
The men we call Anti-Federalists are treated as the losers of 1787, the sore losers of 1788. But they saw the machine better than the men who built it.
Robert Yates, writing as Brutus, published his fifteenth paper in March 1788, and in it he did not merely oppose the new court, he described the future. He warned that a court with final authority to interpret the Constitution would construe the text in the direction of federal power, would “mould” the Constitution to its own purposes, and would absorb the states in the process. He was far from guessing. He was reading the structure and predicting where it led.
More than two centuries later, the prediction is not a prediction. It is the evening news. The Court that Yates feared is the Court we have, and the states he worried would be absorbed have been absorbed. He was right on the mechanism, right on the direction, and right on the outcome. And almost nobody reads him.
If the Anti-Federalists supplied the warning, Hamilton supplied the sales pitch, and it is one of the most quietly dishonest pieces of writing in the Federalist Essays.
Federalist #78 is where Hamilton argues that the judiciary is the “least dangerous” branch, because it holds neither the purse nor the sword. No money. No army. No enforcement arm. A branch that can neither spend nor fight, he says, cannot threaten anyone. It will have “neither FORCE nor WILL, but merely judgment.”
Read that as reassurance if you like. But notice what Hamilton is doing in the same essay: he is handing that supposedly powerless branch the power to void the acts of the two branches that do hold the purse and the sword. The least dangerous branch, in Hamilton’s own framing, gets to overrule the most dangerous ones. He describes a servant and quietly installs a referee with veto power over the whole game.
This is the same Hamilton who spent ratification pretending to be a friend of the Constitution as written, and then spent the rest of his life working to consolidate it into something else. Federalist #78 is that Hamilton in miniature: the man who tells you the thing is harmless while he slides it the knife.
Here is the detail that settles the argument. Judicial review did not come through the amendment process. It began as ordinary legislation, and was codified by the court’s self-administration.
The Judiciary Act of 1789 passed in the very first session of the first Congress, before the ink on the parchment of The Constitution was dry. It created the federal court structure, and in its twenty-fifth section, it gave the Supreme Court appellate reach over the decisions of state courts when a federal question was involved. That section is the real engine of consolidation. It is how the federal judiciary got its hands on state law, and through it, on the states themselves. An event that began the attack on the states that culminated largely with the ratification of the Seventeenth Amendment in 1913.
The power of Judicial Review began operating before it was ever announced. In Hylton v. United States (1796), the Court reviewed the constitutionality of a federal tax. In Calder v. Bull (1798), it reviewed a state law. In both cases the Court upheld what it examined, so nobody noticed the magnitude of what was happening. The power was quietly running for years before Marbury v. Madison (1803) finally stood up and declared it aloud.
By the time Marshall said the words in Marbury, the thing was already alive. He did not invent it. He named it.
Which brings us to the man who tells us the truth about judicial review without meaning to: John Jay, the first Chief Justice.
Jay resigned the Chief Justiceship in 1795 to become Governor of New York. In 1800, as his governorship wound down, John Adams nominated him to the Court a second time. The Senate confirmed him. And Jay turned it down.
His reason, in his letter to Adams dated January 2, 1801, is the tell. He wrote that he had “left the Bench perfectly convinced that under a System so defective” the Court “would not obtain the energy, weight, and dignity which are essential to its affording due support to the national government.”
Notice what he is not saying. He is not complaining that the Court has too much power. He is complaining that it has too little. The Court, as built, was beneath him. It was not weighty enough. Not powerful enough. Not consequential enough to be worth his time. He would rather govern a state.
So here is the honest witness: the first Chief Justice of the United States, a man who understood exactly what the Court could become, saw that it wasn’t there yet, judged it beneath his ambition, and went to get real power elsewhere. Judicial review is not complicated. It is about power. And Jay tells us so in a resignation letter.
Put it together and judicial review stands as its own character in the constitutional drama. It is not the product of a lone villain, but an idea that won by accretion. It was a power reached for at the Convention in 1787 and refused. It was warned against by men who saw it clearly. It was sold to the public as a harmless servant. It was delivered quietly by statute. It was practiced in the shadows for years. It was announced aloud only after it was already alive. And it was defended, in the end, by the simple fact that it had been done and nobody was able to stop it – and trust me, Thomas Jefferson tried.
It is the deepest strain on constitutional originalism precisely because it is self-ratifying. A person can be measured against the text and found wanting. But judicial review is the thing that decides what the text means, and it decided, in its own case, that it belongs. That is a power telling you it has the power. And we have believed it for two hundred years.
The Convention refused to put it there, and the men who saw it coming were the ones history forgot. The very first law of the new government opened the door. Before the ink was dry.
One of the more revealing moments in my years behind a microphone came when Dr. Larry P. Arnn, the president of Hillsdale College, joined me on my terrestrial radio program. We were talking about the Constitution, and the subject of judicial review came up, and to my genuine surprise, a man of his learning and standing defended it. So I asked him two questions, not as a trap, but because the logic had never sat right with me, and the answers he gave led him to a conclusion even he seemed not to have expected. The exchange is worth retelling, because it exposes in two questions what volumes of scholarship have managed to obscure.
I asked him if the Constitution establishes a limited government. He said, “Yes.”
I asked him, “If the federal government can use its own federal court system to determine the constitutionality of its own laws, is that not the government deciding for itself its own authorities? And if so, how is that limited government?”
Silence followed.
He had no answer because the very basic foundation of our constitutional republic is that the federal sovereign has no authority to judge its own reach.
— Political Pistachio Conservative News and Commentary
