judicial review

Making the Constitution a Legal Document

During the early years of the American republic, the Constitution existed simultaneously as a political and legal document to which all three branches of government — and, according to some, states — had the right to interpret, a far cry from today’s understanding of the Constitution as a solely legal document over which the legislative and executive branches may present arguments, but the judiciary held unilateral final interpretative power.

“Excesses of Democracy”

The American judiciary began as a weak institution during the Articles of Confederation.  Almost religious-like belief in the people to elect an enlightened and liberty-respecting legislature meant that no executive and no strong judiciary would be needed to protect the rights of citizens.  People, acting selflessly and dispassionately, would uphold a social contract between themselves and with the government.

That utopian vision failed as the Founders realized that the “excesses of democracy” brought factious interests to power and legislatures, empowered by the people, transgressed on rights (usually the property or rent rights of the landed American aristocracy, inasmuch as the early gentry could be considered “aristocratic”).  Coming to fear the people, the Founders drafted and ratified a powerful and expansive constitution that brought the national government and its coercive powers directly to the people of the arguably sovereign, yet united, states.



A New Regime

Even with faith in the people diminished, many Founders did not see a need to imbue the judiciary interpret the Constitution and strike downs laws contrary to its text.  Richard Dobbs Spaight, a North Carolina delegate to the Constitutional Convention, argued that allowing unelected judges to strike down laws made by a popularly elected legislature “absurd” and “operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.”

Even James Madison, an ardent nationalist, believed that such a judiciary would be “paramount in fact to the Legislature, which was never intended and can never be proper.

Despite misgivings of a powerful judiciary, the Founders and early executors of the government recognized that the judiciary could interpret laws under a quasi power of judicial review, but they balked at the judiciary having sole authority over constitutional interpretation.  All branches had a “concurrent right to expound the constitution,” Madison and Jefferson believed, and only “an appeal to the people themselves…can alone declare its true meaning, and enforce its observance.”



The American people, the ultimate sovereigns, determined the extent of the Constitution.  All legislatures had to abide by it, but the people would guarantee enforcement.  Judicial review and action would not necessarily delimit the powers of the various legislatures since judges arguably did not represent the people.

Some delegates wanted representatives of the people to revise laws along with the judiciary.  James Wilson, future Supreme Court justice, and George Mason urged creating a council of revision that included the president — representative of all people — and the judiciary.  Interpretation had to include popular elements.  Introducing overtly political figures in constitutional interpretation clearly that early theorists believed the Constitution to be a political document to which those whose power came directly from the people had a right to interpret.



Judicial Review and Supremacy

Chief Justice John Marshall disagreed with this idea.  He found the Constitution a strictly legal document, which naturally gave the judiciary power to review laws and the supremacy to unilaterally declare them unconstitutional.  Such actions would be legal in nature, not political, and not a rare occurrence to take place in only the gravest of circumstances (as many Founders believed early on; the first federal court to find a federal unconstitutional did so in an apologetic and conciliatory manner).

Marshall and other contemporaneous judges remade the Constitution as a legal document by interpreting it as they would a statute passed by a legislature.  This included applying a derivative of English common law to the document and reading the Constitution for intent, context, and reasonableness — just as they would a law.  Reading the Constitution as a type of super statute necessarily stripped it of any political interpretation and thus made obvious his argument in Marbury v. Madison  that it was “emphatically the province and duty of the judicial department to say what the law is” — to say what the Constitution is.

Judges as Representatives of the People

This shift came with a reframing of the judiciary’s connection with the people.  Alexander Hamilton first suggested that judges were in fact agents of the people to the same extent as were members of the legislature in Federalist 78writing that it is logical “to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned their authority.”



The people, who willfully entered into the constitutional arrangement and ceded various pwoers to the federal government, needed judicial agents to keep the legislatures in check.  “It only supposes that the power of the people is superior to both [the legislature and the judiciary]; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

Concurrently, and in response to shifting thoughts about the nature of the judiciary as representatives of the people, judges began to isolate themselves from political affairs and society began to embrace the idea of law as a science.  An independent and powerful judiciary mandated qualified individuals to serve the people admirably and dispassionately.  Though not an immediate transformation, changing legal theory in the 1790s and 1800s onward established the powerful judiciary we know today and enshrined the Constitution as the ultimate legal document; the supreme statute to which all individuals cede power and whose legitimacy arises only from the consent of those very people.


For more information on the early judiciary and history of the young republic, read Gordon S. Wood’s masterful “Empire of Liberty”and “Launching the ‘Extended Republic’: The Federalist Era” by Ronald Hoffman and Peter J. Albert.

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