John Marshall Did Not Invent Judicial Review

Who Decided Judges Could Invalidate Laws?

The judicial power, and duty, to invalidate unconstitutional laws wasn’t the work of one inventive judge. It grew out of a legal tradition that predates the United States and was adapted by American courts as they confronted written constitutions and contested statutes. That evolution is worth tracking because it shapes how courts weigh laws today.

English common law provided the backbone: judges long refused to apply statutes that clashed with fundamental principles or charters. Colonial jurists operated in that same intellectual world, treating higher law concepts as guiding limits on government acts. Those practices filtered into early American thinking about courts and constitutions.

After the Revolution, state constitutions put courts in the role of resolving disputes about legislative power and rights. In many states, judges exercised review of statutes when they were seen to violate constitutional provisions or entrenched rights. These episodes show judicial review as a practical answer to conflicts between written constitutions and enacted laws rather than a sudden invention.

At the federal level, Marbury v. Madison in 1803 gave the Supreme Court a clear, authoritative statement that the judiciary must say what the law is. John Marshall’s opinion articulated how a written constitution implies limits that courts can enforce when faced with concrete cases. Still, that landmark explained and consolidated an existing practice rather than presenting a lone, novel creation.

Judicial review rests on two basic ideas: a constitution is the supreme law, and courts are the institutions tasked with applying law to disputes. When a statute clashes with higher text, a court deciding an actual case may refuse to enforce the statute. That function protects legal expectations and individual rights that constitutions are meant to guarantee.

But judicial review has built-in constraints. Courts resolve real cases and controversies brought before them, which limits judges from striking down laws in the abstract. Remedies and doctrines—like standing, ripeness, and mootness—channel when and how review happens, keeping the power tethered to lived disputes.

The practice also invites debate about judicial posture. Critics warn that too eager a court risks substituting its policy preferences for legislative judgments. Defenders counter that courts constrain power and uphold bargained constitutional commitments that majorities or temporary political passions might override.

Practical approaches to review vary across time and chambers: some courts read constitutions strictly, leaning on text and original meaning, while others emphasize evolving standards and broader principles of justice. That diversity reflects different philosophies about the role of judges in a mixed government and the best way to preserve constitutional integrity. It also means the practice adapts to changing public expectations and legal problems.

History shows that judicial review emerged from precedent, debate, and institutional need rather than a single moment of invention. Understanding that lineage helps clarify why courts sometimes strike down statutes and why they often proceed cautiously. The balance between enforcing written limits and respecting democratic decision-making remains a live, contested feature of constitutional life.

Today, judges still face the same tension: enforce constitutional text and protect rights, but avoid stepping into policy-making better left to elected branches. That tension keeps the doctrine dynamic and forces judges to justify when they set aside a statute, using reasoned opinion and established legal tools. The result is a system where review is routine in principle but careful in practice.