There is a hoary debate in American constitutional history about the origins of the doctrine of judicial review, which makes the Supreme Court the final arbiter in determining the meaning of the Constitution. Was it part of the original constitutional design, we wonder, or only a vague notion until Chief Justice John Marshall turned it into a breathing, functioning reality, most notably in his opinion in Marbury v. Madison (1803). Even if we recognize that the concept of judicial review had indeed gained acceptance well before that celebrated case, we might still be puzzled to decide what its essential purpose was meant to be. Did the framers and ratifiers of the Constitution expect that the Court’s power to test the constitutionality of official acts would be used primarily as a check against an overreaching Congress or an overzealous executive? Or was judicial review designed to answer other ends?

In fact, judicial review has always been much more concerned with policing the boundaries of federalism than with maintaining the balance of power within the national government itself. Most of the legislative acts that the Court overturns are the work of state and local legislatures, not Congress. And here lies a great irony. For judicial review entered American constitutional theory largely as a weak and doubtful solution to the problem of preserving the supremacy of the new national government over the expected rivalry and opposition of the states. Over time, however, it has evolved into a powerful engine not only for keeping the national and state governments within their allotted orbits, but also for imposing crucial national norms of civil rights and liberties upon recalcitrant states.

When the framers of the Constitution assembled at Philadelphia in May 1787, they were aware of a handful of cases in which state courts had already voided particular legislative acts on constitutional grounds. But the way in which the framers thought about the constitutional duties of the federal judiciary owed far more to two proposals to which James Madison was deeply committed. The first was to create a joint executive-judicial council of revision, armed with a limited veto over acts of Congress. The second was to give Congress a negative (or veto) on acts of the state legislatures.

In supporting the council of revision, Madison and his ally James Wilson argued that it was better to allow judges to contribute their legal expertise to the drafting of legislation than to wait to correct the problems created by imprudent, ill-conceived, potentially unconstitutional laws. But in rejecting this proposal, a majority of the framers apparently thought that if judges were involved in drafting legislation, they would be reluctant to exercise their true judgment when cases actually came before them. If judges were actually to measure doubtful statutes against a constitutional standard, they would act more decisively if they had not previously committed themselves one way or another to the statutes they would have to assess.

While Madison proposed the council of revision as a safeguard against faulty congressional legislation, he expected the negative on state laws to play a more vital role in preserving the stability of the American republic. Madison doubted that courts would have the will and resilience needed to interpose their judgment against those of elected legislatures, and he expected that states would frequently obstruct the execution of laws they did not like. By making Congress, in effect, a third branch of the state legislatures, Madison simply hoped to prevent unwise or unjust bills from being enacted.

The support that Madison’s proposal initially enjoyed collapsed after the crucial vote of 16 July, giving the small states an equal vote in the Senate. The negative had proved vulnerable to telling objections. How could Congress ever review the enormous body of legislation that would flow from the states? Moreover, small state delegates objected that the large states would band together to use the veto to their own ends. With the political advantage they gained after 16 July, the small states immediately succeeded in replacing Madison’s negative with a weak provision that had been part of the New Jersey Plan they had favored. Under its terms, the state judiciaries would be required to enforce national acts and treaties against the conflicting laws of the states, but nothing was said about enforcing the national Constitution itself against the conflicting authority of the state constitutions.

In August, however, the Convention quietly but decisively revised this early version of the Supremacy Clause to insure that the national Constitution itself would be the supreme law of the land. In doing so, the framers evidently agreed that maintaining the boundaries between the national and state governments would be essentially a judicial function. In theory, this task would fall to both the state and federal judiciaries. (It is indeed a little noticed aspect of the Supremacy Clause that it unilaterally made judicial review a legitimate duty of every state by explicitly requiring state courts to enforce the federal Constitution.)

But this consensus masked some powerful lingering doubts. Could state courts really be counted upon to rule in favor of national constitutional norms when the constitutions, laws, and political sentiments of their own communities militated against it? Or would the federal judiciary have the confidence and capacity to protect the Constitution against state infringements? How would a judgment in favor of the national government be executed against a politically hostile state? Madison, for one, left Philadelphia convinced that judicial enforcement would prove inadequate, and that his pet scheme for a negative on state laws remained a superior solution to the underlying problem of federalism.

Once the Constitution was published, some anti-federalists were quick to reach the opposite conclusion. The most brilliant discussion of the potential danger of judicial review during the entire ratification campaign of 1787-88 came from the anti-federalist writer known as “Brutus.” In his view, Article III of the Constitution invited the federal judiciary to exploit the ambiguous language of the Constitution in order to erode the residual powers and jurisdiction of the states. Not only would federal judges have an incentive to enlarge their own power by bringing more matters within the scope of federal jurisdiction, their decisions would actually point out to Congress areas in which it could expand its own legislative authority. In the supple hands of the judges, “Brutus” warned, the Constitution would become a charter for the consolidation of national power at the expense of the states. For when Congress overstepped its powers, the real victims would not be the weaker branches of the national government—presidency and the courts—but the states.

“Brutus” would never have been satisfied by the ways in which Madison sought to rebut this charge in The Federalist. Madison addressed the subject obliquely in Federalist 39, when he blandly conceded that “the tribunal” (the Supreme Court) which would “ultimately” resolve “controversies relating to the boundary between the two jurisdictions” would draw its authority from the nation, not the states. But, Madison reassured his readers, “the decision is to be impartially made, according to the rules of the Constitution.” The decision, in other words, would not be a heavy-handed assertion of political will but a neutral application of legal rules. Whether any court could ever live up to that ideal, or do so for prolonged periods, is an open question.

In fact, there is no easy or simple way to categorize the role that the Supreme Court has played in maintaining the boundaries of federalism in the two centuries since the Constitution was ratified. As perhaps Madison best understood, American federalism has always been an inherently messy and untidy proposition. It authorizes two levels of government (national and state) to rule over one people, often in overlapping ways, and it encourages its citizens to turn to whichever level of government or institution seems most likely to serve their immediate and particular interests. In such a system, it is unrealistic to expect any neat or distinct doctrine of judicial federalism to prevail. Rather, we need a calculus to measure the way in which courts have worked to maintain a rough equilibrium between national and state power, sometimes expanding one while the other contracts, but sometimes doubling back to correct manifest imbalances in the federal system.

At a fairly broad level of generalization, however, we can identify several major phases in the long sweep of judicial federalism, culminating in the controversies that have swirled around the Court in recent decades. These phases, it must be noted, are no more than crude approximations of a messy reality, and different scholars might well divide the same history in different ways. But certain central tendencies in the history of judicial federalism can still be identified.

The first phase is the one we associate with the long reign (if that is the right term) of Chief Justice John Marshall (1801-35). The conventional story about the Marshall Court emphasizes those decisions which confirmed that the Supreme Court would indeed act as a final arbiter of the meaning of the Constitution in all those areas where questions of federalism came before it. Section 25 of the Judiciary Act of 1789 had authorized the Court to take appeals from state courts in cases in which state legislation seemed to violate the Federal Constitution and national acts. That provision was vigorously challenged, however, by the states’-rights-minded jurists who dominated the Virginia bench. In several crucial decisions—Fairfax’s Devisee v. Hunter’s Lessee (1813); Martin v. Hunter’s Lessee (1816); and Cohens v. Virginia (1821)—the Court vigorously affirmed its power under Section 25. Moreover, other decisions from the same period worked to the same end. In Fletcher v. Peck (1810), the Court held that the Georgia legislature’s effort to repeal the corrupt Yazoo land deal was invalid under the Contract Clause of the Constitution, and in 1819 it voided New Hampshire’s alteration of the charter of Dartmouth College on similar grounds. The same year the Marshall Court delivered perhaps its most important ruling in McCulloch v. Maryland. Here the Court confirmed that Congress indeed possessed the power to charter a national bank while overturning the state’s effort to levy a tax on its operations.

There can be little doubt, then, that the Marshall Court acted vigorously to confirm the core principle of American judicial federalism. Yet it would be a mistake to treat these celebrated decisions as evidence that the Court was supporting just the sort of nationalist consolidation that anti-federalists had professed to dread. For in practice, most governance in America took place at the state and local level, and national judicial interventions had little effect on the actions and decisions that mattered most in daily life. Moreover, by the 1830s, the Court was already moving toward a more moderate position. In Barron v. Baltimore (1833), the Court closed a possible avenue for broad federal supervision of state legislation by unanimously holding that the protections of the Bill of Rights were restrictions only on the federal government, not the states.

Under Marshall’s successor, Chief Justice Roger Taney, the Court showed less inclination to act as a censor on state legislation. An early decision, the well-known Charles River Bridge case (1837), stepped back from the Marshall Court’s use of the Contract Clause. In the developing economies of the mid-nineteenth century, state legislatures were left relatively free to act as they saw fit.

The Civil War, and especially the adoption of the Fourteenth Amendment, created a potential foundation for the expansion of federal judicial authority. Federal courts played a significant role in enforcing the Reconstruction of the South in the decade after Appomattox, and Congress enacted a number of statutes that promised to enhance judicial authority further. But as early as 1873, in the Slaughterhouse cases, the Court narrowed the force of the Fourteenth Amendment to protect the legislative authority of the states, and subsequent decisions in other cases tended toward the same end. In an 1883 decision overturning the congressional Civil Rights Act of 1875, the Court foreshadowed the tolerance of racial segregation it accepted in Plessy v. Ferguson (1896). In practice, the Court proved willing to countenance the substantial curtailment of civil rights that enabled the South to turn Jim Crow segregation into the basis of an entire way of life.

In matters of economic regulation, however, the Court proved more willing to restrict the state legislatures while permitting the moderate expansion of national power under the authority of the Commerce Clause. Pursuing the doctrine of substantive due process, the Court overturned numerous state laws that sought to regulate business activity or to promote the welfare of workers. The best known of these cases was Lochner v. New York (1905), in which a law regulating the working hours of bakers was struck down as an unconstitutional violation of the right of workers to enter into contracts on the terms they chose.

The two great departures that gave twentieth-century judicial federalism its distinctive character unfolded in the two decades after World War I. Beginning in the 1920s, the Court began to use the Fourteenth Amendment to “incorporate” specific protections of the Bill of Rights against the legislative power of the states. One crucial case here was Gitlow v. New York (1925), in which the Court affirmed the conviction of a socialist agitator but in doing so indicated that freedom of speech was one of the rights that the Fourteenth Amendment protected against the states. Six years later, in Stromberg v. California and Near v. Minnesota, the Court overturned state laws violating the freedom of speech and press clauses of the First Amendment.

The second great developmen affecting judicial federalism involved the capacity of the federal government to regulate an increasingly national and industrial economy. Here the crucial events occurred during the great constitutional crisis of the mid-1930s. While the Court had previously accepted a significant expansion in the federal regulation of commerce, it found the New Deal’s efforts to impose significant regulation as a means of dealing with the Great Depression unacceptable. In a series of decisions (of which the best known is Schechtet v. U.S., the so-called “sick chicken” case), the Court gutted much of Franklin Roosevelt’s New Deal. In response, Roosevelt, once reelected, launched his “court-packing” scheme to enlarge the Court (and thereby change its political balance) by appointing one new member for each justice who turned seventy years of age. This scheme was a political error of the first magnitude, but in the spring of 1937, the Court abruptly reversed course and signaled its willingness to accept much of the New Deal impetus for national economic regulation. In comparison to other industrial democracies, the United States remained (and still remains) a relatively decentralized state; but the Court’s “switch-in-time-that-saved-nine” legitimated a major redistribution of power within the American federal system.

Exactly a century and a half had passed since the delegates to the Federal Convention had begun their journeys to Philadelphia. Strong pressures for the centralization of authority had occasionally been felt in the United States before the New Deal—notably during the Civil War and the First World War—but these had never severely disrupted the strong bias in favor of the autonomy of the states that had always characterized American federalism. The New Deal, and the World War which followed, finally reversed that bias, confirming some of the anti-federalists’ deepest fears (though at a much later date than “Brutus” and his collaborators had expected).

In accepting the newly centralized state that the New Deal established, the Court clearly indicated that, in matters of economic policy, it would avoid substituting its judgment for those of democratically elected legislatures. But at the same time, the Court also signaled a new willingness to make the protection of the civil rights of individuals and minorities its distinctive concern. In a famous footnote to its decision in U.S. v. Carolene Products (1938), the Court noted that it would carefully scrutinize laws infringing the constitutionally defined rights protected in the first ten amendments to the Constitution and the Fourteenth Amendment—especially as those infringements affected “discrete and insular minorities.” No American minority better fit that categorization than the descendants of the enslaved African Americans whom the Civil War had liberated but whose oppression by state-based legislation the Supreme Court had previously accepted.

Responding to this signal, attorneys for the National Association for the Advancement of Colored People (including Thurgood Marshall), fashioned a legal strategy to challenge the edifice of legally enforced racial segregation that had evolved since the collapse of Reconstruction. Their campaign culminated in the landmark decision in Brown v. Board of Education of Topeka (1954). Under the leadership of Chief Justice Earl Warren, the Court laid a constitutional foundation for a wholesale assault on segregation. And because segregation was essentially a matter of state law, this assault also brought a major shift in the character of American federalism. In the 1960s and 1970s, the Supreme Court subjected state legislation to massive review and revision, not only in the area of race relations, but also on issues of freedom of expression, criminal procedure, and even family relations (all matters previously regarded as the preserve of the states).

In pursuing this course, the Court also brought American constitutionalism closer than many commentators have realized to the concerns of its principal original theorist, James Madison. At the heart of Madison’s concern with the protection of rights lay the conviction that the real dangers to rights would arise most frequently, not at the national level of government, but within the individual states. That was why he wanted his veto on state laws to operate “in all cases whatsoever.” Madison was skeptical that courts would actually have the nerve to act as vigorously or confidently as federal courts in the modern era have done. But there is good reason to think he would be sympathetic with the results.

Bibliography

Cortner, Richard. The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison: University of Wisconsin Press, 1981.

Curtis, Michael Kent. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham: Duke University Press, 1986.

McCloskey, Robert G. The American Supreme Court. 2nd ed. Rev. by Sanford Levinson. Chicago: University of Chicago Press, 1994.

Rakove, Jack N. “The Origins of Judicial Review: A Plea for New Contexts.” Stanford Law Review 49 (1996-97): 1031-64.

Jack N. Rakove is the Coe Professor of History and American Studies at Stanford University and author of The Beginnings of National Politics (1979) and Original Meanings: Politics and Ideas in the Making of the Constitution (1996), for which he won the Pulitzer Prize.