It started with Marbury v. Madison (1803) and the idea of judicial review, and expanded gradually over time. By the time we got to Roe v. Wade, the liberal wing of the court was entirely unconstrained from (and apparently unembarrassed by) substituting its policy preferences for interpretation of the law.
Would you stop that please?
Judicial review did NOT start with Marbury. The concept not only existed before the Constitution but was common between the ratification of the Constitution and Marbury.
Here are several cases involving judicial review that took place before Marbury but after the ratification of the Constitution:
- Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792), federal circuit courts held an act of Congress unconstitutional for the first time. Three federal circuit courts found that Congress had violated the Constitution by passing an act requiring circuit court judges to decide pension applications, subject to the review of the Secretary of War. These circuit courts found that this was not a proper judicial function under Article III. These three decisions were appealed to the Supreme Court, but the appeals became moot when Congress repealed the statute while the appeals were pending.
- United States v. Yale Todd,[36] the Supreme Court reversed a pension that was awarded under the same pension act that had been at issue in Hayburn's Case. The Court apparently decided that the act designating judges to decide pensions was not constitutional because this was not a proper judicial function. This apparently was the first Supreme Court case to find an act of Congress unconstitutional. However, there was not an official report of the case and it was not used as a precedent.
- Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), was the first case decided by the Supreme Court that involved a challenge to the constitutionality of an act of Congress. It was argued that a federal tax on carriages violated the constitutional provision regarding "direct" taxes. The Supreme Court upheld the tax, finding it was constitutional. Although the Supreme Court did not strike down the act in question, the Court engaged in the process of judicial review by considering the constitutionality of the tax. The case was widely publicized at the time, and observers understood that the Court was testing the constitutionality of an act of Congress.[37] Because it found the statute valid, the Court did not have to assert that it had the power to declare a statute unconstitutional.
- Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), the Supreme Court for the first time struck down a state statute. The Court reviewed a Virginia statute regarding pre-Revolutionary war debts and found that it was inconsistent with the peace treaty between the United States and Great Britain. Relying on the Supremacy Clause, the Court found the Virginia statute invalid.
- Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Court found that it did not have jurisdiction to hear the case because of the jurisdiction limitations of the Eleventh Amendment. This holding could be viewed as an implicit finding that the Judiciary Act of 1789, which would have allowed the Court jurisdiction, was unconstitutional in part. However, the Court did not provide any reasoning for its conclusion and did not say that it was finding the statute unconstitutional since the statute itself was not challenged.
In 1789 Kentucky and Virginia passed a series of resolutions asserting that States had the power to to determine whether Federal Laws (Acts of Congress) are unconstitutional, but in response, ten States passed their own resolutions disapproving the resolutions passed by Kentucky and Virginia, with six of those States took the position that the power to declare acts of Congress unconstitutional lies in the federal courts.
The majority of the States had cases involving judicial review between 1776 and 1787, and at least seven delegates to the Constitutional Convention had personal involvement with judicial review cases by being either lawyers or judges in one or more of such proceedings. Alexander Hamilton was one of them. Those pre-Constitution judicial review cases were referred to during the debates surrounding the crafting of the Constitution.
During those debates George Mason agreed that Federal judges "could declare an unconstitutional law void", but was careful to point out that "every law however unjust, oppressive or pernicious, which did not come plainly under this description" (unconstitutional) should be given "free course" by judges.
IOW, the Constitution itself establishes that it is "the Supreme Law of the Land", so Federal statutes are the law of the land only when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid only if they are consistent with the Constitution. Any law contrary to the Constitution is void. So no legislature, Federal or State, has the right to enact unconstitutional laws, and it falls on the Federal Judiciary to void those laws out because they are charged with making sure that the Constitution remains the "Supreme Law of the Land" and they have the Constitutional power to hear "all cases , in law and equity, arising under this Constitution". It is an ABSURD notion that the SCOTUS has the power to hear cases and simply say "Wow! You're right! That law is unconstitutional!" then do absolutely nothing about it, allowing unconstitutional laws to stand.
In fact, the people themselves do not have the right to demand that laws contrary to the Constitution be enacted, irrespective of them being a majority of the people. That is what makes us a Constitutional Republic... the idea that an omnipotent majority, whether of the people or the legislatures, cannot decide on whether or not a right or privilege, constitutionally protected or not, can be enjoyed by a minority, or even an individual.
Neither State legislatures or Congress have the right to be wrong.
I respect Scalia, but he was dead wrong on this.
