Two hundred years have passed since the Supreme Court's decision in Marbury v. Madison, yet debate continues over the origins and legitimacy of judicial review. Although modern commentators generally accept judicial review with little or no reservation, some remain skeptical. One of the strongest and most sustained challenges comes from Larry Kramer, who has recently argued that the Founders did not authorize judicial review of the scope of federal powers under the original Constitution. At the same time, Kramer maintains that the Founders expected judicial review both to prevent states from undermining federal supremacy and to enforce individual rights. Such attempts to divide judicial review, however, are inconsistent with the constitutional text and contradict key assumptions held by the Founders. The relevant materials suggest that judicial review is a unitary doctrine under the Supremacy Clause that requires courts to treat all parts of the Constitution as "the supreme Law of the Land" and to disregard both state and federal law to the contrary.
There are at least two difficulties with Professor Kramer's proposed dichotomy. First, Kramer's attempt to separate judicial review of state law from judicial review of federal statutes is inconsistent with the text of the Supremacy Clause. The Clause recognizes only three forms of federal law as "the supreme Law of the Land:" This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States." By its terms, therefore, the Clause requires courts to prefer federal statutes to contrary state law only if the federal statute is consistent with "this Constitution." In other words, courts have no warrant to enforce unconstitutional federal statutes over contrary state law. This is true whether the federal statute in question violates the Constitution's "provisions delegating powers" or its "rights-bearing provisions." Thus, in such cases, the Supremacy Clause explicitly conditions judicial review of state law on judicial review of federal statutes.
Second, Professor Kramer's further attempt to distinguish judicial review under "the rights-bearing provisions" of the Constitution from judicial review under the "provisions delegating powers" contradicts widespread assumptions at the Founding about the nature and source of individual rights vis-a-vis the federal government. Federalists and Antifederalists agreed that individual rights would be secured - at least in part - by the Constitution's limited delegation of powers to the federal government. Their disagreement was whether this feature alone would suffice to protect individual liberty.
The Antifederalists argued that a Bill of Rights was necessary to guarantee essential rights. The Federalists countered that a Bill of Rights was both unnecessary and dangerous. It was "unnecessary" because the federal government lacked power to interfere with the rights at issue. It was "dangerous" because it might erroneously imply that the federal government had power to invade other rights retained by the people. The Founders compromised by including the Ninth and Tenth Amendments in the Bill of Rights. As discussed below, these amendments negated any suggestion that the enumeration of rights implied the availability of federal power to invade other rights, and thus confirm that the Founders equated individual rights with the limited scope of federal powers. From this perspective, Professor Kramer's suggestion that courts enforce "the rights-bearing provisions" of the Constitution but not the "provisions delegating powers" is anachronistic because it ignores the common purpose of these provisions and would create the very danger that the Founders sought to avoid. The Founders' understanding that the Constitution secures individual rights by limiting federal power has important implications for judicial review. Courts cannot - as some commentators urge - simply enforce the Bill of Rights but decline to police the limits of federal power. Given the Founders' understanding of the source of individual rights vis-a-vis the federal government, courts should take a unitary approach to judicial review under the Supremacy Clause and enforce both the Bill of Rights and the limits of federal power. Only then could courts uphold all of the rights "retained by the people."
Bradford R. Clark, Unitary Judicial Review, 72 Geo. Wash. L. Rev. 319 (2004).