Schultz D. Encyclopedia of the United States Constitution

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long retirement at his 800-acre estate in West-

chester County, until his death on May 17, 1829.

For more information: Casto, William R. The

Supreme Court in the Early Republic: The Chief

Justiceships of John Jay and Oliver Ellsworth.

Columbia, S.C.: University of South Carolina

Press, 1995; Kelly, Alfred H., Winfred A. Harbi-

son, and Herman Belz. The American Constitu-

tion: Its Origins and Development. New York:

W.W. Norton & Company, 1991.

—Randy W. Hagedorn

J.E.B. v. Alabama 511 U.S. 127 (1994)

In J.E.B. v. Alabama, the U.S. Supreme Court

decided that peremptory challenges that

exclude jurors on the basis of sex violated the

equal protection clause of the Fourteenth

Amendment.

J.E.B. was the latest in a series of cases in which

the Court determined the limits on peremptory

challenges, a practice in which attorneys for either

side in civil or criminal cases may excuse poten-

tial jurors without providing an explanation. The

Court had held in B

ATSON V. KENTUCKY, 476 U.S.

79 (1986), that a prosecutor who uses peremptory

challenges in a criminal trial to eliminate jurors

based on their race violates the equal protection

clause. Therefore, the question the Court had to

answer in J.E.B. was whether to extend the prin-

ciple of Batson to sex-based peremptory strikes.

The defendant in J.E.B. was on trial for charges

related to his failure to pay child support for a

child purported to be his. Each side used peremp-

tory challenges to eliminate jurors on the basis

of sex whom they thought would be detrimental

to their side: the prosecutor used nine of his 10

peremptory challenges to strike potential male

jurors; similarly, J.E.B.’s attorney used almost

all his peremptory challenges to remove female

jurors. The resulting jury, consisting of all women,

found that he was the father of the child, and the

judge ordered him to pay child support.

The Alabama courts rejected J.E.B.’s claim

that the prosecutor’s use of sex-based peremptory

challenges violated the equal protection clause.

Speaking for a 6-3 majority, Justice Harry Black-

mun proclaimed that discrimination based on sex

violates the equal protection clause, especially in

situations in which the laws perpetuate stereotypi-

cal views of men’s and women’s abilities. Although

the state tried to justify its practices by distin-

guishing racial discrimination from sex discrimi-

nation in the jury selection procedure, the Court

refused to engage in a debate over whether women

or racial minorities suffered more discrimination

at the hands of the state. Blackmun reiterated that

the nation’s wide-ranging history of sex discrimi-

nation required the Court to consider the practice

of allowing prosecutors to base their peremptory

challenges on sex very carefully.

The Court sought to determine whether these

sex-based peremptory challenges were substan-

tially related to the state’s goal of ensuring a fair

trial and concluded they were not. In reaching this

conclusion, the Court rejected the state’s attempt

to rely on studies that showed that attitudes dif-

fered by sex, thereby justifying using sex as a proxy

to eliminate potential juror bias. Characterizing

the state’s evidence as largely gender stereotyping,

Blackmun noted that the equal protection clause

does not allow states to base laws on stereotypical

generalizations about the sexes even though there

might be some statistical evidence to support the

generalizations.

Chief Justice William Hubbs Rehnquist

dissented, arguing that the Court should main-

tain a distinction between the way it viewed racial

and sex-based classiﬁ cations. In his view, although

racially-based peremptory strikes were clearly

unconstitutional, the equal protection clause did

not prohibit states from excluding potential jurors

on the basis of sex.

For more information: Albright, Mary M.

“Equal Protection and Peremptory Challenges:

Reconciling the Irreconcilable.” Capital Univer-

sity Law Review 25 (1996): 425–452; Grice, O.

Drew, Jr. “Comment: J.E.B. v. Alabama: A Criti-

cal Analysis of the Supreme Court’s Latest Limi-

tation on Peremptory Challenges.” Cumberland

Law Review 25 (1995): 355–381.

—Susan Gluck Mezey

392 J.E.B. v. Alabama

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Jefferson, Thomas (1743–1826) second U.S.

vice president, third U.S. president

Thomas Jefferson, state legislator, governor,

Republican Party co-founder and leader, congress-

man, minister to France, secretary of state, vice

president, and third president of the United

States, was one of the most signiﬁ cant ﬁ gures in

American constitutional history.

Jefferson ﬁ rst burst into the consciousness of

American political leaders at large with the publi-

cation of his 1774 pamphlet A Summary View of

the Rights of British America. In that pamphlet,

Jefferson developed the view of the British Con-

stitution that would mark his thinking through

the balance of his life. Building on the views of

his mentor Richard Bland, Jefferson claimed that

every man had a natural right to emigrate, that

Virginia had been founded by émigrés through

their own efforts and with their own money, that

King George III served Virginia at Virginia’s plea-

sure, and that in case he should cease to fulfill

the role they had assigned him, Virginians could

rightfully replace George with someone else. In

short, Virginia stood on a par with Great Britain

itself in the international system.

His draft of the Declaration of American Inde-

pendence in 1776 amounted to a simple restate-

ment of that position—and one that Jefferson did

not consider particularly signiﬁ cant at the time. In

fact, in the weeks leading up to his appointment

to the congressional committee charged with pro-

ducing a declaration, Jefferson repeatedly asked to

be relieved of his congressional duties so that he

could participate in the key event of the Revolu-

tion: writing a constitution for the new Virginia

republic. To his chagrin, Jefferson’s imprecations

went unheeded, and he had to be satisﬁ ed with

crafting the ﬁ rst draft of the Declaration.

The Declaration’s chief claim was that in case

government’s performance failed to satisfy the

people, they were entitled to replace it with one

more to their liking. In the context of 1776, this

was a justiﬁ cation of secession—of Virginia’s deci-

sion, already implemented by July 4, to withdraw

from King George III’s empire. Jefferson would

remain committed to the notion that Virginia and

its fellow states formed the primary elements of

the North American political system to the day of

his death.

Jefferson was in France while the constitutional

reform movement of the 1780s crescendoed, and

he played no part in drafting the Constitution in

1787. He did, however, have thoughts about it late

in that year. Sent a copy by his friend James Mad-

ison, Jefferson said that he admired the compro-

mises between large and small states, between

producing and carrying states, and so on, but that

he had two powerful objections: ﬁ rst, he said, the

president should be subject to a term limit.

Otherwise, so august an ofﬁ cer likely would use

the appointment power to build up a signiﬁ cant

faction in each state, and thus to ensure himself

lifetime tenure.

Jefferson’s second objection was to the absence

of a bill of rights. Virginia in 1776, like England

in 1688, had preceded establishment of its new

regime by adoption of a declaration of rights,

and Jefferson thought the federal government

ought to be introduced similarly. When Madison

Thomas Jefferson. Painting by Thomas Sully

(National Archives)

Jefferson, Thomas 393

xviii+446_EofUSConsti-v1.indd 393 3/12/09 3:05:43 PM

responded with a series of objections to this idea,

Jefferson ﬁ nally cut him off with the assertion that

“A bill of rights is what the people are entitled to

against every government in the world.” Partly

because of Jefferson’s insistence, Madison ulti-

mately shepherded 12 proposed amendments—

11 of which ultimately became the ﬁ rst ten and

the 27th amendments—through the ﬁ rst federal

Congress.

Jefferson agreed to join George Washington’s

cabinet as secretary of state in 1789. He no doubt

expected to have the leading voice in the formula-

tion of executive policy, but things did not work

out that way. Instead, Washington proved sym-

pathetic to the incisive proposals and analyses,

both in regard to matters domestic and to foreign

policy, of Secretary of the Treasury Alexander

Hamilton.

Jefferson and Hamilton came into notable

conﬂ ict for the ﬁ rst time in 1791, when Congress

passed the bank bill Hamilton had proposed.

Washington, aware that Madison had criticized

the bill as unconstitutional in the House of

Representatives, requested that his cabinet

members provide written appraisals of the bill. In

response, Jefferson and Hamilton each produced

one of the most notable state papers in American

history.

Jefferson took as his jumping-off point the lan-

guage of the soon-to-be-ratified Tenth Amend-

ment, which said that all powers not delegated

to the federal government via the Constitution

or denied by it to the states were reserved to the

states or to the people. This, for Jefferson, was

the key assumption of American federalism:

that all powers lay in the states except those few

carefully and—to borrow a word used by Virginia

Federalists in the Virginia Ratiﬁ cation Conven-

tion of 1788—“expressly” delegated to the federal

government.

Jefferson’s reading of Article I, Section 8 of

the Constitution did not disclose authorization to

Congress to charter any corporation, much less

to charter a bank. Therefore, his fall-back prin-

ciple meant that that power lay solely where it had

before the Constitution’s ratiﬁ cation: in the state

governments. Here we have one of the two classic

positions on constitutional interpretation.

It is usually known as the “state’s rights” or “strict

construction” reading of the Constitution—but

one might as well call it the “respectful” reading.

Hamilton made a contrary argument to contrary

effect, and thus established the other classic posi-

tion on constitutional interpretation—the “lib-

eral” or “broad” position.

In 1793, Washington responded to the dan-

gerous international situation by issuing his

Neutrality Proclamation. From his—and Hamil-

ton’s—perspective, the proclamation amounted

simply to informing American citizens of the legal

jeopardy they faced in case they actively took sides

in the Wars of the French Revolution. Jefferson,

however, considered the proclamation to be a

usurpation of the power of Congress to set Ameri-

can foreign policy: if America was to move from

friend of France to neutral, it should be for the

legislature, not the chief executive, to make that

determination. Perhaps the king of England could

make foreign policy, but the federal Constitution,

Jefferson insisted, gave that power to Congress.

Through the rest of the 1790s, Jefferson and a

growing body of like-minded Republicans would

wage political warfare on Hamilton and his fellow

Federalists, chieﬂ y on the basis of their diverging

views concerning foreign policy and concerning

the Constitution. As Jefferson understood things,

Hamilton was a not-so-secret monarchist bent on

destroying the Constitution, which any republican

(read: patriotic American) would read Jefferson’s

way; Hamiltonians favored the president over

Congress within the federal government and the

federal government over the state governments,

while Republicans stood for the opposite priori-

ties. In 1798 and 1799, Jefferson authored two sets

of Kentucky Resolutions laying out his state’s-

rights position—and claiming the rights both of

nulliﬁ cation and of secession. This threat to resist

the federal government forcibly was never acted

upon in Jefferson’s lifetime, however, because his

party swept to victory in 1800.

Jefferson counseled in 1798 that his party

would win the next presidential election because

his opponents’ military program required so many

taxes. From the time of his victory, however,

394 Jefferson, Thomas

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which he called the “Revolution of 1800,” Jeffer-

son attributed Republican success to the people’s

sympathy for his state’s-rights constitutional views.

When, at his presidential inauguration in 1801, it

came time for him to address the party combat

of the 1790s, Jefferson said that he thought party

contention was past. It seemed to him that his

views were the self-evident views of the Revolu-

tion and that Hamilton had skillfully manipulated

Washington’s great popularity to near-disastrous

effect. Now, consensus had arrived.

Jefferson’s constitutional position entailed the

abrupt dismantlement of the army and navy, the

elimination of virtually all federal taxes, and a

paciﬁ st foreign policy. It meant the death of Ham-

ilton’s bank. Ultimately, it resulted in the nigh

disastrous War of 1812. Jefferson’s presidential

successor, James Madison, recanted much of the

Republican position—even going so far as to ask

Congress to charter a second Bank of the United

States and to declare war on Great Britain.

In retirement, Jefferson worked unsuccess-

fully to thwart that second bank bill. He also

maintained his commitment to state’s rights. For

example, Jefferson labored during the Missouri

Crisis of 1819–20 to thwart northerners’ efforts to

exclude slavery from Missouri. His constitutional

position was that new states must be admitted to

the Union on an equal footing with the old, and

that Missouri could not be equal to Massachusetts

and Virginia unless it, like them, got to decide on

its domestic institutions for itself. He went so far

as to counsel Missourians to declare their inde-

pendence in case Congress would not let them

join the Union with a pro-slavery constitution.

Jefferson also encouraged other Virginians in

their campaign against the nationalizing course

of the U.S. Supreme Court, headed by his cousin,

Chief Justice John Marshall. Jefferson and

Marshall developed a strong mutual loathing

because of their contrary constitutional views.

When Spencer Roane, chief judge of Virginia’s

highest court, wrote incisive newspaper columns

criticizing Marshall’s poorly reasoned opinion in

CCULLOCH V. MARYLAND (1819), Jefferson greeted

them with great enthusiasm. He grew increasingly

unhappy with the Court’s behavior of those years

and lamented that the Supreme Court constituted

a corps of sappers and miners working stealthily to

grind the states into one great, consolidated mass.

This vision, of course, stood directly at odds with

the vision Jefferson had ﬁ rst developed in A Sum-

mary View a half-century before.

For more information: Gutzman, Kevin R.

Constantine. “Jefferson’s Draft Declaration of

Independence, Richard Bland, and the Revo-

lutionary Legacy: Giving Credit Where Credit

Is Due.” The Journal of the Historical Society 1

(2001): 137–154; Gutzman, Kevin R. Constantine.

“The Virginia and Kentucky Resolutions Recon-

sidered: ‘An Appeal to the Real Laws of Our

Countr y.’ ” The Journal of Southern History 66

(2000): 473–496; Mayer, David N. The Constitu-

tional Thought of Thomas Jefferson. Charlottes-

ville: University Press of Virginia, 1994.

—Kevin R. C. Gutzman

Johnson v. Transportation Agency of Santa

Clara, California

480 U.S. 616 (1987)

In Johnson v. Transportation Agency of Santa

Clara, the Supreme Court clariﬁ ed the standard for

evaluating voluntary affirmative action plans

under Title VII of the Civil Rights Act of 1964,

clearly distinguishing it from the far stricter stan-

dard required for such plans to meet constitutional

muster under the equal protection clause.

Paul Johnson was an employee with the Santa

Clara County Transportation Agency. In Decem-

ber 1979, the agency announced a vacancy for a

road dispatcher, and Johnson applied for the pro-

motion along with 11 other candidates, including

co-worker Diane Joyce. Both Johnson and Joyce

were deemed well qualiﬁ ed for the position, but

ultimately the agency director chose Joyce pur-

suant to an afﬁ rmative action plan (AAP) which

the agency had voluntarily adopted the year

before. Under the terms of the AAP, the agency

was authorized to consider the sex of a qualiﬁ ed

applicant as one factor when making promotions

to positions within a traditionally segregated job

classification in which women had been signifi-

cantly underrepresented. At the time of Joyce’s

Johnson v. Transportation Agency of Santa Clara, California 395

xviii+446_EofUSConsti-v1.indd 395 3/12/09 3:05:43 PM

selection, none of the 238 positions in the relevant

Skilled Craft Worker job classiﬁ cation, including

that of dispatcher, was occupied by a woman.

Johnson ﬁ led suit under Title VII in federal dis-

trict court; in spite of the fact that the defendant

was a public employer, no constitutional challenge

was raised. The district court found that Joyce’s

sex was a determining factor in her promotion and

that the AAP was invalid under the requirement

articulated in U

NITED STEELWORKERS V. WEBER, 443

U.S. 193 (1979), that the plan be temporary. The

Ninth Circuit reversed, holding, inter alia, that

the lack of a speciﬁ c end date in the AAP was not

dispositive in light of the express plan objective of

attaining, not maintaining, a labor force that mir-

rored the local work force. The Supreme Court

granted certiorari.

Justice William J. Brennan, Jr., writing

for the majority, afﬁ rmed the court of appeals’s

judgment and held that the agency appropriately

took Joyce’s sex into account as one factor in the

promotion decision. Compliance with an afﬁ rma-

tive action plan constitutes a nondiscriminatory

reason for a gender- or race-conscious promotion,

and the burden of proof rests with the challenger

to demonstrate that the plan is invalid and, thus,

a violation of Title VII. In contrast to the more

exacting constitutional standards for evaluating

AAP validity, a private employer need only show

“a conspicuous imbalance in traditionally segre-

gated job categories” in general, not its own prior

discriminatory practices. Thus, under Title VII,

employers may take proactive steps in eliminat-

ing societal discrimination, rather than merely

addressing their own history of job segregation.

The Court found that the county’s AAP took

into consideration a variety of factors and did not

require blind adherence to numerical standards.

The plan did not unnecessarily trammel the rights

of male employees nor did it constitute an absolute

bar to their career advancement. Rather, Johnson

had no entitlement to the dispatcher position since

the agency director was authorized to promote

any of the seven applicants deemed qualiﬁ ed. The

plan, although not expressly temporary, adopted

a “moderate, gradual approach” to elimination of

the work force imbalance, and the explicit goal of

attaining, rather than maintaining, balance dem-

onstrates that the plan is not intended to be of

indeﬁ nite duration. The Johnson decision is impor-

tant for distinguishing between Title VII’s goal of

eliminating the impact of societal discrimination

in employment versus constitutional require-

ments that suspect classiﬁ cations such as race or

national origin or suspicious classiﬁ cations such as

sex receive heightened judicial scrutiny, even if for

remedial purposes. Thus, private employers have

far more leeway to engage in voluntary afﬁ rmative

action efforts than governmental employers.

For more information: Anderson, Terry H.

The Pursuit of Fairness: A History of Afﬁ rmative

Action. New York: Oxford University Press, 2005;

Urofsky, Melvin. Affirmative Action on Trial.

Lawrence: University of Kansas Press, 1997.

—Virginia Mellema

judicial review

Judicial review is the power of the Supreme Court

of the United States and other federal courts to

refuse to enforce federal laws they ﬁ nd contrary

to the Constitution. The term is often used more

broadly to include the power of federal or state

courts to declare unconstitutional any decisions

taken by federal or state ofﬁ cials, whether in the

form of law or not. Laws or other actions declared

unconstitutional are unenforceable in the courts

and are generally regarded as void.

The justiﬁ cation for judicial review is usually

traced to Chief Justice John Marshall’s opinion

in M

ARBURY V. MADISON, which declared unconsti-

tutional a minor provision of federal law deﬁ ning

the jurisdiction of the Supreme Court. Marshall’s

most persuasive justiﬁ cations were based in Arti-

cle III of the U.S. Constitution, which pro-

vides that “the judicial power shall extend to all

cases . . . arising under the Constitution” and the

declaration in Article VI that the Constitution

“shall be the supreme law of the land.” Marshall

reasoned that “it is emphatically the province and

duty of the judicial department to say what the law

is,” and therefore if any action of the other branches

violates the Constitution, it is “the province and

396 judicial review

xviii+446_EofUSConsti-v1.indd 396 3/12/09 3:05:44 PM

duty” of the judges to uphold the “supreme law of

the land” by rejecting that action.

Marshall’s justiﬁ cation of judicial review has

been strongly criticized throughout the nation’s

history. The “supreme law of the land” clause

refers to federal laws and treaties as well as the

Constitution, and it is followed by the phrase

that “the judges in every state shall be bound

thereby.” Critics of judicial review argue that the

supremacy clause was intended only to compel

states to follow all forms of federal law by requir-

ing state judges to enforce it, but not to authorize

any judges, state or federal, to say whether fed-

eral laws are unconstitutional. The framers, they

argue, would have explicitly stated a power for

appointed judges serving unlimited terms to undo

the work of the elected Congress and president if

they intended a power of judicial review. In fact,

the Constitutional Convention rejected

a proposal for a Council of Revision, including

judges, to disapprove laws that did not conform to

the Constitution.

Neither James Madison’s notes on the Consti-

tutional Convention, the most complete record of

those proceedings, nor the correspondence of any

of the framers during the Convention or imme-

diately afterward state that the courts shall have

authority to strike down federal laws. Later state-

ments by some framers are both for and against

judicial review, and many of those statements

appear to be dictated by the politics of later times.

During the state conventions to ratify the Consti-

tution, only ﬁ ve references to judicial review by

members of the Constitutional Convention can be

found, and two of them opposed ratiﬁ cation.

Judicial review, critics note, was unknown in

England, from which American law was largely

derived. Indeed, when the chancellor of England,

the highest judicial ofﬁ cial, attempted in 1603 in

Dr. Bonham’s Case to declare an act of Parliament

contrary to higher law, he was immediately over-

ruled and was soon replaced by the king. No other

case from English judges overrules a law adopted

by Parliament. The British Privy Council, a judicial

body, did review acts of the legislative assemblies

in the American colonies to determine whether

they conformed to English law and colonial char-

ters, and one scholar has said the Privy Council

vetoed about 5 percent of colonial laws. But those

vetoes were heatedly criticized by colonial politi-

cal leaders, newspapers, and the public, suggest-

ing that judicial review of legislative actions was

not widely accepted.

There is also little support for judicial review in

the period between the Revolution and the adop-

tion of the Constitution. The Articles of Confeder-

ation, which created the ﬁ rst national government,

had no judicial branch and therefore no judicial

review. Scholars have found only two instances

during this period where state supreme courts

attempted to strike down state laws, and both

cases were met with overwhelming opposition

from state legislatures, the press, and the public.

The most important statement in the constitu-

tional period supporting judicial review is found

in Federalist 78, written by Alexander Ham-

ilton, a member of the Convention, as part of

a series of editorials arguing for ratification

of the Constitution. Hamilton described the

“limited Constitution . . . which contains speciﬁ ed

exceptions to the legislative authority” that “can

be preserved . . . no other way than through the

medium of courts of justice, whose duty must be

to declare all acts contrary to the manifest tenor

of the Constitution void.” But Hamilton’s own plan

in the Constitutional Convention had no provision

for judicial review. And Hamilton himself played

little role in the Convention, although he was an

important ﬁ gure in the struggle for ratiﬁ cation.

President Thomas Jefferson and his Repub-

lican majorities were outraged by the decision in

Marbury. A year later, they attempted to impeach

Federalist Justice Samuel Chase, who narrowly

escaped removal by a close vote in the Senate.

John Marshall kept alive the concept of judicial

review only by striking down a series of state

laws, which could be justiﬁ ed under the Article

VI supremacy clause and which found defend-

ers in Congress and the presidency because they

enhanced the power of the national government.

The Supreme Court did not void another federal

law until 1857, in D

RED SCOTT V. SANDFORD, which

struck down the Missouri Compromise of 1820

that prohibited slavery in the Louisiana Purchase

judicial review 397

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territory north of Missouri. The hostile reaction

in the North was soon overshadowed by Abra-

ham Lincoln’s election in 1860 and the onset

of the Civil War, which overturned Dred Scott’s

approval of slavery.

Despite the disastrous decision in Dred Scott,

the Supreme Court’s judicial review has expanded,

with two short exceptions, throughout American

history. One study put the number of federal

laws struck down by the Supreme Court as 160

through June, 2005. By one scholar’s count, the

Court considered 116 constitutional challenges

to federal statutes from 1865 to 1900 (an aver-

age of 3.22 challenges per year) and struck down

21 laws (an annual average of .58). In the period

from Marbury until the end of the Civil War, the

Court had heard only 13 constitutional challenges

to federal law and had struck down only two. From

1901 to 1937, the Court reviewed numerous laws

regulating economic activities. The Court heard

347 challenges to federal law (9.38 per year) and

struck down 57 (1.54 per year). After Franklin

Roosevelt’s effort in 1937 to pack the Court with

new justices, eight justices retired in just four

years and were replaced by Roosevelt appointees.

Judicial review ebbed for two decades: from 1937

to 1957, the Court heard only 148 cases challeng-

ing federal laws (6.73 per year) and struck down

only ﬁ ve (.03 per year). However, from 1957 to

2001, the Court returned to an active role, strik-

ing down 74 federal laws (1.68 per year, its high-

est annual rate in history) in 299 (6.8 per year)

challenges.

Judicial review has been controversial through-

out American history for two distinct reasons.

First, the specific policies struck down reflect

majority views as expressed by Congress and the

president. Second, judicial review itself is counter-

majoritarian: it substitutes the will of judges who

are not elected and who serve indefinite terms

for the will of recently elected ofﬁ cials who must

regularly stand for reelection. Attorney General

Robert H. Jackson, who later served on the Court,

characterized judicial review as “the check of a

preceding generation on the present one; . . . and

nearly always the check of a rejected regime on

the one in being.”

While defenders of judicial review characterize

it as only carrying out the words of the Consti-

tution, its critics point out that the justices often

strike down laws under broad constitutional lan-

guage that does not have clear meaning. Such

phrases as “due process of law,” “equal pro-

tection of the laws,” “commerce . . . among the

several states,” or “all laws which shall be neces-

sary and proper for carrying into execution” the

other provisions of the Constitution allow justices

broad latitude to read their own views into the

Constitution. Even provisions that appear to be

speciﬁ c leave wide room for interpretation because

of changing times and conditions: protections of

free speech and press, for example, were writ-

ten when electronic media and the Internet were

unimagined, and prohibitions against “unreason-

able searches” did not anticipate interception of

electronic communications or technology allowing

detection of objects or persons from outside the

walls of buildings.

Judicial review is defended as a protection of

individual rights. However, by one count, only

about a third of the cases striking down federal

laws related to due process for individuals, First

Amendment freedoms, privacy, or criminal

defendants’ rights. About 50 percent struck down

federal laws defining relations with the states,

regulating the economy, or taxation. About 5 per-

cent involved the separation of powers, and 8 per-

cent involved judicial power, issues relating to the

respective authority of the branches of the federal

government. Another 18 percent may have dimin-

ished individual rights by striking down federal

laws related to civil rights. While these catego-

ries are not sharply deﬁ ned, it appears that protec-

tion of civil rights and liberties were protected by

substantially fewer than half the Supreme Court

decisions striking down federal laws.

The countermajoritarian character of judicial

review is heightened because Congress and the

president have few tools to overturn Court deci-

sions. Constitutional amendments require approval

of extraordinary majorities in Congress and

among the states: only four have been approved to

directly overturn decisions of the Supreme Court.

The justices serve indeﬁ nite terms, and on aver-

398 judicial review

xviii+446_EofUSConsti-v1.indd 398 3/12/09 3:05:44 PM

age only one vacancy occurs every two years, so

that it may take many years to appoint enough new

justices to bring the Court into line with the pub-

lic will. Some presidents have had few opportuni-

ties to appoint justices: President Jimmy Carter,

for example, appointed none during his four-year

term, and President Bill Clinton appointed only

two in eight years. Moreover, after appointment,

justices’ decisions are often at odds with the presi-

dents who appointed them.

Congress can change the size of the Court; and

it has done so at least six times for political or pol-

icy reasons. But the last change, to nine members,

was made in 1869, and that number has appar-

ently become settled in the public mind. After his

landslide reelection in 1936, President Franklin

Roosevelt sought to reverse the Court’s decisions

striking down much of his economic program by

adding new justices, but that was overwhelmingly

opposed by the public and in Congress. Occasional

efforts by Congress to prevent judicial review of

speciﬁ c issues by limiting the Court’s jurisdiction

have been accepted by the justices, but in each

case they have warned that they still have jurisdic-

tion under other provisions of law. In short, there

are few means to curb the Court, and efforts to do

so rarely succeed.

Judicial review is therefore a broad power of

appointed judges serving indeﬁ nite terms to over-

turn as unconstitutional decisions of the elected

president and Congress. It contradicts the demo-

cratic ideal that the public controls the decisions

of government through the election of its ofﬁ cials.

But judicial review has become an accepted fea-

ture of American constitutionalism, because for

more than two centuries the people and Congress

have acquiesced by not amending the Consti-

tution to curb it.

For more information: Bickel, Alexander. The

Least Dangerous Branch. Indianapolis, Ind.:

Bobbs-Merrill, 1962; Bishin, William. “Judi-

cial Review in Democratic Theory.” Southern

California Law Review 50 (1977): 1,099–1,156;

Choper, Jesse. Judicial Review and the National

Political Process. Chicago: University of Chicago

Press, 1980; Dahl, Robert H. “Decision-Making

in a Democracy: The Supreme Court as a National

Policy-Maker.” Journal of Public Law 6 (1958):

279–295; Keith, Linda Camp. “The United States

Supreme Court and Judicial Review of Congress,

1803–2001.” Judicature 90 (2007): 166–176; Levy,

Leonard W. Judicial Review and the Supreme

Court: Selected Essays. New York: Harper &

Row, 1967.

—David Adamany

Judiciary Act of 1789

The Judiciary Act of 1789 established the struc-

ture of federal courts in the United States. Judi-

cial power was vested in one Supreme Court (with

a chief justice and ﬁ ve associate justices) and 13

district courts. The act stemmed from Article

III of the U.S. Constitution, which vested

judicial power in “one Supreme Court, and in

such inferior courts as Congress may from time

to time ordain and establish.” Unlike Article I,

which clearly delineates Congress’s power, Article

III is vague on exactly what judicial power entails,

hence the need for further articulation.

The Judiciary Act was at the center of a num-

ber of controversies between the states and the

federal government in the pre–Civil War era.

At issue were the 13th and 25th Sections of the

Judiciary Act, both of which provided for federal

review of state actions. Article III, Section 2 of

the Constitution provides that the judicial power

extends to all cases under the Constitution and

to “controversies between a state and citizens of

another state.” Section 13 gave the Supreme Court

“exclusive jurisdiction” of all cases of a civil nature,

but in cases between a state and citizens of other

states, the Supreme Court had original, but not

exclusive jurisdiction. The Supreme Court’s deci-

sion in C

HISHOLM V. GEORGIA, 2 U.S. 419 (1793),

reafﬁ rmed the Court’s jurisdiction over disputes

between a state and a citizen of another state, irre-

spective of whether the state was a plaintiff or a

defendant in the suit.

Section 13 was also at issue in M

ARBURY V.

ADISON, 5 U.S. 137 (1803), a case famous for the

establishment of judicial review (and veto)

over federal legislation. At issue was whether

Judiciary Act of 1789 399

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William Marbury was entitled to his commission

as a justice of the peace. And if so, was the Court

obligated under Section 13 to issue a writ of man-

damus ordering the delivery of the commission?

Chief Justice John Marshall answered the ﬁ rst

question in the afﬁ rmative but ruled the Court

could not afford Marbury a remedy, since Section

13 was an unconstitutional interference with the

Court’s original jurisdiction set forth in the

Constitution.

One of the most controversial sections of the

Judiciary Act was Section 25, which provided for

review of state supreme court decisions by the U.S.

Supreme Court in cases where a federal law or the

Constitution was involved. In M

ARTIN V. HUNTER’S

LESSEE, 1 Wheaton U.S. 304 (1816) and COHENS V.

VIRGINIA, 6 Wheaton U.S. 264 (1821), the Mar-

shall Court tried to resolve these questions in

favor of the federal courts—both decisions resting

on the authority of the Court to hear appeals from

state courts—but to no avail.

Section 25 was at the center of a number of

divisive battles between the Supreme Court and

various state supreme courts. States argued that

Article III allowed for federal appellate review of

only inferior federal courts, not state courts. The

Ohio Supreme Court repeatedly clashed with the

Supreme Court on whether state taxation of state-

chartered banks violated the contract clause

of the Constitution. Ohio argued that the Supreme

Court had no jurisdiction over the state courts and

therefore, any state court decision on the validity

of the bank tax should be ﬁ nal. In response, the

U.S. Supreme Court not only afﬁ rmed the sanctity

of the contract clause, but in doing so, afﬁ rmed its

authority under Section 25 to hear appeals from

and reverse the decision of state courts.

In Craig v. Missouri, 29 U.S. 410 (1830), the

Court invoked its jurisdiction under Section 25 to

strike down a Missouri law it felt interfered with

the constitutional ban on bills of credit. Section

25 came under immediate attack, as Congress

was determined to repeal it and do away once and

for all with the Court’s jurisdiction over the state

courts. This movement to repeal Section 25 also

came on the heels of two other federal-state con-

troversies—the Nullification Controversy,

in which South Carolina claimed it had the right

to nullify federal laws, and the Cherokee Indian

affair, where the Court clashed with Georgia’s

claim that it had the right to legislate over the

Cherokee Indians. Section 25 was spared, thanks

in part to Pennsylvania Representative (and later

President of the United States) James Buchanan,

who defended Section 25 as essential to the sur-

vival of the Union. In Worcester v. Georgia, 31

U.S. 515 (1832), John Marshall reasserted the

Court’s power to review state court decisions

under Section 25 and, in doing so, voided all laws

passed by Georgia concerning the Cherokee Indi-

ans. This, however, did not stop the states from

continuing to defy federal judicial authority.

For more information: Marcus, Maeva, ed.

Origins of the Federal Judiciary: Essays on the

Judiciary Act of 1789. New York: Oxford Univer-

sity Press, 1992; Warren, Charles. “Legislative

and Judicial Attacks on the Supreme Court of

the United States: A History of the Twenty-Fifth

Section of the Judiciary Act.” The American Law

Review 47 (1913): 1–47 and 161–189.

—Randa Issa

jurisdiction, power of Congress to control

The U.S. Constitution provides Congress with the

power to determine jurisdiction of federal courts

that are not provided for constitutionally. It pro-

vides original and appellate jurisdictional rules

under Article III, and Congress has several

important jurisdictional powers.

In Article III, Section 1, the Constitution

states: “In all Cases affecting Ambassadors, other

public Ministers and Consuls, and those in which

a State shall be Party, the supreme Court shall

have original jurisdiction. In all the other

Cases before mentioned, the Supreme Court shall

have appellate Jurisdiction, both as to Law and

Fact, with such Exceptions, and under such Regu-

lations as the Congress shall make.” Under this

ordain and establish clause, jurisdictional author-

ity for appellate cases not excepted by Congress

are determined as under the regulations provided

by Congress.

400 jurisdiction, power of Congress to control

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While the Constitution provides some guaran-

teed jurisdiction for federal courts under Article

III, the federal courts are subject to Congress

for the scope of all other jurisdiction. This raises

important questions regarding the extent to which

Congress can restrict the jurisdiction of federal

courts. The Constitution gives Congress some

power regarding creating and presumably abol-

ishing federal courts. M

ARBURY V. MADISON, on

the other hand, clearly states that the structural

principle of the rule of law requires that there be

judicial remedies for violation of rights. “The Con-

stitution . . . provides for only the barest minimum

of the American judicial system, with all else left

for Congress to determine,” as noted by constitu-

tional commentator James Burnham.

The ordain and establish clause of Article III,

Section 1 also provides Congress with the power

for deciding whether to create lower federal courts

and the power to determine their jurisdiction.

While there are cases that provide relatively broad

power for Congress, there are others which show

that congressional power is not unlimited.

The Judiciary Act of 1789 was the ﬁ rst step

which Congress took to ordain the lower courts

which were prescribed by the Constitution. It was

also the basis of the landmark case Marbury v.

Madison, in which the Supreme Court established

the principle of judicial review, making the

Court the constitutional authority and arbiter in

the nation. This case also decided against the pro-

vision in the Judiciary Act of 1789 that enlarged

the original jurisdiction of the Supreme Court.

Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850)

dealt with the power of Congress to decide the

jurisdiction of lower courts, speciﬁ cally the circuit

courts. The 11th section of the Judiciary Act kept

circuit courts from taking a case “to recover the

contents of any promissory note of other chose of

action, in favor of an assignee, unless a suit might

have been prosecuted in such court to recover the

contents, if no assignment had been made, except

in cases of foreign bills of exchange.” The court

found that the Constitution ordained that there

be lower courts and deﬁ ned the Supreme Court’s

speciﬁ c jurisdiction while addressing the jurisdic-

tion of the judicial branch as a whole. Thus the

Constitution does not specify the jurisdiction of

the lower courts, leaving it to Congress to decide.

Similarly, the Court decided in E

X PARTE MCCA-

RDLE, 74 U.S. (7 Wall.) 506 (1868), that it was well

within the power of Congress to direct jurisdic-

tion, where allowed by the Constitution. The

Court’s appellate jurisdiction in regard to

habeas corpus was repealed, and the Congress

had the power to do so because of their Constitu-

tional authority to grant jurisdiction.

In the ruling in United States v. Klein, 80 U.S.

(13 Wall.) 128 (1871), the U.S. Supreme Court

allowed that Congress’s ability to constitutionally

govern the judicial branch is limited. After the Civil

War, presidential pardons were given to Southern-

ers who took an oath of allegiance. One V. F. Wil-

son did so, and upon his death, the administrator

of his estate, Klein, applied to have the proceeds

from the sale of Wilson’s effects given back to the

estate. Congress then passed a law denying such

proceeds to be given to those who had accepted

the presidential pardon, the acceptance being an

admission of guilt. The Court found that Con-

gress had overstepped its bounds in the area of

judicial independence and in the executive’s abil-

ity to grant pardons. Congress could not give and

remove power in the courts to affect the outcome

that it would see as best for the government. Like-

wise, the Congress has no power to stipulate the

effect of the presidential pardon, which is under

the purview of the executive branch. The presi-

dential pardon is both a pardon and amnesty, and

to assign an admission of guilt to the acceptance of

such a pardon shrinks the power of the executive

branch given in the Constitution.

Though Congress possesses constitutional

powers with regard to jurisdictional determina-

tion and regulation, the U.S. common law tradi-

tion and judicial precedents have provided federal

courts delimitation in the scope of congressional

jurisdictional prerogatives.

For more information: Bloom, Allan, ed. Con-

fronting the Constitution. Washington, D.C.: AEI

Press, 1990; Burnham, James. Congress and the

American Tradition. Washington, D.C.: Regnery

Publishing, 1996; Marbach, Joseph R., Ellis Katz,

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