Two landmark decisions of the U.S. Supreme Court have served to uphold the constitutional power derived from judicial review in the United States. In 1796, Hylton v. United States was the first case decided by the Supreme Court to directly challenge the constitutionality of a congressional bill, the Carriage Act of 1794, which introduced a transportation tax.  The Court conducted a judicial review of the applicant`s allegation that the transportation tax was unconstitutional. After review, the Supreme Court ruled that the Promotion Act was constitutional. In 1803, Marbury v. Madison was the first Supreme Court case in which the court affirmed its power to strike down a law as unconstitutional. At the end of his statement in that decision, Chief Justice John Marshall stated that the Supreme Court`s responsibility to repeal unconstitutional laws was a necessary consequence of its oath of perjury to uphold the Constitution under section six of the Constitution. It is difficult to overestimate the impact that Marbury and his descendants had on the American legal system.
A full list of important cases that have overturned federal or state laws would easily reach four digits. However, a summary of some of the most important landmark court decisions should serve to show the impact of judicial review. A total of fifteen delegates from nine states commented on the power of federal courts to review the constitutionality of laws. All but two supported the idea that federal courts should have the power to review them.  Some delegates to the Constitutional Convention did not discuss judicial review during the Convention, but spoke about it before or after the Convention. Including these additional comments from Convention delegates, the researchers found that twenty-five or twenty-six of Convention delegates made comments in favour of judicial review, while three to six delegates opposed judicial review.  A review of the Convention`s debates and votes counted up to forty delegates in favour of judicial review, four or five against.  The U.S. Supreme Court ruled that the Hazelwood School District did not violate students` First Amendment rights. The court ruled that school officials must not tolerate statements that are incompatible with the school`s core educational mission.
The court distinguished this case from the Tinker decision (school officials could not punish students for wearing armbands in protest against the Vietnam War “students do not lose their constitutional rights at the school gate”) because the Tinker case concerned a student`s personal expression. Rather, it was a school newspaper and, as such, could reasonably be perceived as an “imprimatur” of the school. They justified this by saying that the Spectrum publication was part of the curriculum, i.e. it was included in the curriculum guide as part of the journalism course, that it was taught by a faculty member during class hours, that students received academic grades and credits, that the academic advisor had control over the publication and that the director should review it. The school`s policy did not reflect the intention to expand students` rights by turning a program newspaper into a public forum. The court added that the principal`s fears were well-founded: he feared that the identity of the students could not be assured, that the privacy interests of friends and relatives would not be adequately protected, and that the parents named in the divorce section would not have the opportunity to defend themselves. In a two-part decision, the court ordered Bakke`s admission to medical school. The court ruled that Bakke had indeed been discriminated against. However, the court upheld the legality of the funding programs.
The court cited Harvard University`s affirmative action program, which created admission guidelines instead of strict quotas. Despite Hamilton`s support for the concept, the power of judicial review was not included in the U.S. Constitution. Article III of the Constitution, by conferring powers on the judiciary, extends judicial power to various types of cases (e.g., those arising from federal law), but does not pronounce on whether a legislative or executive measure may be repealed. Instead, the U.S. precedent for judicial review comes from the Supreme Court itself, in the landmark Marbury v. Madison, 5 U.S. 137 (1803).
The jurisdiction of the United States shall be transferred to such Supreme Court and such subsidiary courts as Congress may order and establish from time to time. Jurisdiction extends to all matters arising out of this Constitution, the laws of the United States, and treaties entered into or to be concluded under its authority. In all cases involving ambassadors, other public ministers and consuls in which a State is to be a party, the Supreme Court has jurisdiction in the first instance. In all the other cases mentioned above, the Supreme Court has jurisdiction to hear appeals in law and in fact, except and in accordance with the rules adopted by Congress. The court`s decision, written by current Judge Louis D. Brandeis, ruled in Katz`s favor, stating that the Fourth Amendment allows a person, not just their property, to be protected from unlawful searches. What a citizen “wishes to preserve as private, even in a place accessible to the public, may be protected by the Constitution.” Several other cases involving questions of judicial review reached the Supreme Court before the case was finally decided in Marbury in 1803. Some historians argue that Dr. Bonham`s case had an impact on the development of judicial review in the United States. Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), was the first case decided by the Supreme Court to challenge the constitutionality of a congressional bill. It has been argued that a federal promotion tax violates the constitutional “direct” tax provision. The Supreme Court upheld the tax and ruled it constitutional. Although the Supreme Court did not repeal the law in question, it commenced judicial review by reviewing the constitutionality of the tax. The case was widely publicized at the time, and observers understood that the court was reviewing the constitutionality of a congressional bill.  Since the Court found the law valid, it did not have to claim that it had the power to declare a law unconstitutional.  In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court struck down state laws making abortion illegal. Although Roe and many subsequent cases have taken a narrow line in determining exactly how far the right to choose an abortion extends, the fundamental idea that the right to choose an abortion is protected as part of the right to privacy is still considered the law of the land. Marbury has long been regarded as the seminal case concerning the doctrine of judicial review. Some scholars have suggested that Marshall`s opinion in Marbury essentially created judicial review. In his book The Least Dangerous Branch, Professor Alexander Bickel wrote: This conclusion in no way presupposes the superiority of the judiciary over the legislative branch. It only presupposes that the power of the people is superior to both; and that if the will of the legislature, declared in its statutes, is contrary to the will of the people proclaimed in the Constitution, judges should be governed by the Constitution and not by the former. They should regulate their decisions by basic laws and not by non-fundamental ones. The Constitution assigns all judicial authority of the United States to a Supreme Court and such lower courts as Congress may order and establish from time to time.
This power is expressly extended to all cases arising under the laws of the United States; and can therefore be exercised in any way in the present case; because the claimed right is given by a law of the United States. It is expressly the task and duty of the judicial authority to say what the law is. Those who apply the rule to certain cases must necessarily explain and interpret this rule. When two laws conflict, the courts must rule on the application of each of them. The U.S. District Court dismissed Ms. Harper`s request in favor of the election committee. She then asked the U.S. Supreme Court to review the case.
Since Marbury, the Supreme Court has significantly expanded its power of judicial review. In Martin v. Hunter`s Lessee, 14 U.S. 304 (1816), the Court held that it may hear civil cases in state courts if they arise under federal or constitutional law. A few years later, he did the same for criminal cases in state courts. Cohens v. Virginia, 19 U.S. 264 (1821).
In 1958, the Supreme Court expanded judicial review to include the Supreme Court with the power to strike down any state law, whether executive, judicial, or legislative, if it found it unconstitutional. Cooper v. Aaron, 358 U.S. 1 (1958). Today, there is no serious opposition to the principle that all courts, not just the Supreme Court (and not just federal courts) have the power to sweep away laws or executive actions that are inconsistent with federal or state constitutions. Marshall then discussed the role of the courts, which is at the heart of the doctrine of judicial review. It would be “absurd,” Marshall said, to require the courts to enforce a void law. Rather, it is the inherent duty of the courts to interpret and apply the Constitution and to determine whether there is a conflict between a law and the Constitution: this case did not go to the Supreme Court of the United States like most issues. Most cases are brought before the Supreme Court as a court of last resort, when judges are asked to review a decision of a lower court. In this case, William Marbury filed a petition in the United States.