Legal Education and the Concept of Judicial Review

Courts in the U.S. exercise a unique power, called "judicial review," meaning that judges may declare invalid and set aside, laws passed by the legislatures or executive acts that the courts interpret as violating the Constitution. The power is not mentioned in the U.S. or state constitutions. But over time it has come to be accepted as a legitimate power, and is regularly exercised by judges in both state and federal (national) courts.

The concept of judicial review was explained in Marbury v. Madison (1803), one of the Supreme Court's earliest and most celebrated cases. The outgoing president, John Adams, had appointed William Marbury a justice of the peace. The incoming president, Thomas Jefferson, who was hostile to Adams' party and its judges, never delivered Marbury his commission. Marbury, relying on an act of Congress, petitioned the Supreme Court for a writ of mandamus, an order commanding the government to deliver his commission as judge.

In the unanimous decision by the Supreme Court, Chief Justice John Marshall laid the groundwork for the future authority of the Court by stating that the Constitution did not allow Congress to empower the Court to issue mandamus writs, and that the act of Congress was therefore void. The Constitution, said Marshall, was not simply a plan of government, but the supreme law, superior even to laws enacted by legislatures. Since "it is emphatically the province and duty of the judicial department to say what the law is," it follows that courts must have the power to strike down and refuse to enforce unconstitutional laws.

In the decades that followed Marbury, many state courts used the power of judicial review to strike down statutes they considered contrary to constitutional law. Between 1880 and 1937, the U.S. Supreme Court frequently struck down acts of Congress and of the states that they thought went beyond constitutional limits on the power of government to regulate business. After 1950 the courts used the power most often to protect civil rights and civil liberties of individuals against repressive state action, such as criminal prosecutions of political dissenters and unpopular religious groups. In the famous case of Brown v. Board of Education (1954), the Supreme Court invalidated all segregation laws pertaining to public education, on the grounds that such laws violated the Constitution's command that everyone have the "equal protection of the laws."

The fact that courts have the final word on the constitutionality of legislation means that in the United States, great political questions such as racial segregation often end up being debated and decided as legal questions in the courts. As a result, the work of ordinary lawyers is connected to fundamental issues of statecraft and policy. So from the earliest years of the American republic, legal education has been concerned with teaching lawyers about the basic design and purposes of governmental structures and actions.

Return to LEGAL EDUCATION IN THE UNITED STATES