Did Judicial Review Come From an Originalist Interpretation?
By Rohan Jois By Rohan Jois (West Windsor-Plainsboro High School South)
Issue II: Federal Constitutional Structure
Judicial Review and Separation of Powers
When drafting the US Constitution, the Framers faced a dilemma: their experience with British tyranny taught of the dangers of an excessively powerful executive branch, but the failures of the Articles of Confederation indicated that an executive branch was absolutely necessary for a government to function properly. Therefore, the Framers had to create a government system with a regulated and checked executive branch. To accomplish this, the Founders implemented a system of separation of powers, initially developed by French philosopher Montesquieu. In book 11 of his work, The Spirit of Laws, Montesquieu states, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.” 
The division of the duties of government into separate branches to prevent any one branch from obtaining absolute power is most readily seen in the distinction between the Executive, Legislative, and Judicial branches. As is taught in the most fundamental lessons of civics and government, the Legislative branch creates laws, the Executive branch enforces laws, and the Judicial branch interprets laws. That said, the way these powers are viewed has changed since the ratification of the Constitution. Specifically, the Judicial branch recognized new power in the form of judicial review, a power which allows the Supreme Court to declare laws unconstitutional. The Supreme Court affirmed this power in the landmark decision Marbury v. Madison.  This article will survey whether the Supreme Court’s expansion of power through the decision in Marbury is consistent with an originalist interpretation of the Constitution.
Textual Silence on Judicial Review
Before addressing whether the implied power of judicial review is consistent with an originalist interpretation, the first step is determining powers the Supreme Court was expressly given under the Constitution. Beginning with the text, the vesting clause of Article III states that “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  Section III furthers that, “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 Regulations as the Congress shall make.”  While these sections of the Constitution give the Supreme Court powers over inferior courts, there is no express statement granting the Court authority to determine the constitutionality of laws. These powers certainly permit the Supreme Court to set precedent for lower courts and have complete authority over judicial decisions, but there remains an open question as to legal determinations pertaining to other branches’ actions.
Background of the Marbury Decision
With respect to judicial review, it is worth noting that the context of Marbury v. Madison does not necessarily pertain directly to the issue. Immediately before his term ended in 1801, President John Adams appointed via the Judiciary Act of 1801 a number of “midnight judges” expected to support the Federalist party’s positions, one of them being William Marbury. But although President John Adams had appointed William Marbury and issued him a commission, when President Thomas Jefferson took office, Secretary of State James Madison (whose responsibility it was to send the commission) refused to deliver it. Marbury therefore sued Madison for the commission, and the case was brought to the Supreme Court. The court was faced with a problem, because although Marbury had a solid claim, it was not certain whether Jefferson would listen to their decision and deliver the commission. But on the other hand, if the court sided with Madison, it would appear as though the court had caved to political pressure at a time when the court was still finding its role and authority in government. 
In this circumstance, the presidency had recently transferred power from the Federalist party to the Democratic-Republican party in the first peaceful transfer of power between rival parties in US history. Therefore, a decision by Marshall, a Federalist, in favor of the Democratic-Republican James Madison would convey that the Supreme Court would in the future simply follow the executive branch.
To address this issue, Chief Justice John Marshall argued in his majority opinion that the Supreme Court did not have the ability to hear Marbury’s case, which was made under the Judiciary Act of 1789. Chief Justice Marshall claimed that it is the duty of a judge to examine the Constitution, for “why does a Judge swear to discharge his duties agreeably the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?”  Chief Justice Marshall then established the principle of judicial review in declaring that, “a Law repugnant to the Constitution is void,” and therefore the Judiciary Act was unconstitutional.  Since the Act was unconstitutional, the Supreme Court could not hear Marbury's case even though the Act granted it jurisdiction. This ruling thus solidified the Supreme Court’s role of interpreting the constitutionality of laws, giving it a respected role within the government and furthermore solidifying the power of the Judicial Branch in the system of checks and balances as it could prevent the other branches from taking unconstitutional actions.
Looking to Founding-Era Commentaries
By looking only at the Constitution’s express text, it seems that the reasoning in Marbury v. Madison doesn’t correlate with an originalist interpretation. However, when analyzing the Constitution from an originalist perspective, one cannot stop at the literal text.  It is also necessary to understand the Framers’ reasoning behind including a divided government in the Constitution, as well as their view of the powers of each branch. Therefore, in order to determine whether Marbury v. Madison is consistent with an originalist interpretation, we must determine what the Framers thought of judicial review.
To analyze the Framers’ perspectives on judicial review in the Constitution, the information contained within the Federalist Papers provides strong evidence. Their commentaries on the government provide insight into the thoughts of the Framers, particularly as they were written by prominent founding fathers Alexander Hamilton, James Madison, and John Jayunder the pseudonym “Publius” in support of ratification of the Constitution. Although these papers took an opinionated slant in favor of ratification of the Constitution, they provide insight on how the Constitution was supposed to be interpreted. Therefore, they were and are still widely regarded as important sources in determining the original meaning of the Constitution, even by Chief Justice Marshall. As Judge Gregory Maggs of the Court of Appeals for the Armed Forces explained in his essay A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution:
“The Federalist Papers long have enjoyed a special reputation as an extremely important source of evidence of the original meaning of the Constitution. In 1821, in Cohens v. Virginia, Chief Justice John Marshall described the collection of essays in the following glowing terms: ‘It is a complete commentary on our constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors [i.e., Hamilton and Madison] performed in framing the constitution, put it very much in their power to explain the views with which it was framed.’ The serious attention given to the Federalist Papers has not waned, but instead has grown, since Chief Justice Marshall wrote these words. In the aggregate, academic writers and jurists have cited the Federalist Papers as evidence of the original meaning of the Constitution more than any other historical source except the text of the Constitution itself.” 
With respect to judicial review, Federalist 78 provides the greatest insight. Written by Alexander Hamilton, this essay clarifies that the founders were aware and intended to empower judicial review such that the Constitution would grant the courts power to serve as interpreters of the law. In the paper, Hamilton stated in particular that:
“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” 
Given that Hamilton, a staunch supporter of the Constitution during the adoption period, used judicial review as an argument for the Constitution’s ratification, it can be reasonably assumed that judicial review falls within the Framers’ intentions in the Constitution for the judicial branch.
One counter-argument which has been levied is that the concept of judicial review was not popular enough in 1787 to be a part of the Framers’ intentions for the Constitution. However, the number of lower court cases applying principles of judicial review before Marbury v. Madison increased in the years following the Constitution, allowing the inference that judicial review was well-established enough to be understood as a power of the courts.  This rising usage in the years following the Constitution’s adoption grants further weight to this idea that the Constitution was seen as granting the power of judicial review, despite the fact that this was not explicitly stated. This historical evidence, along with Federalist 78, provides a reasonable case that judicial review was a part of the founders’ intentions and is compatible with an originalist interpretation.
Since the decision in Marbury v. Madison corresponds with an originalist interpretation of the Constitution, this may suggest that Chief Justice Marshall was interpreting the Constitution as an originalist. However, this is not necessarily true because originalism was not completely formally established until the late 1900’s, many years after the decision in Marbury v. Madison. However, the conclusion that judicial review aligns with originalism still supports the validity of originalist interpretations today. Since the very concept of judicial review can be seen as originalist, the theory of applying originalism to assist in the task of judicial review makes good sense. If judicial review was not justifiable on originalist principles, then originalist interpretations would be almost hypocritical;their very purpose would be to assist the court with a function that spawns from a conflicting interpretation. But regardless of his reasoning, Chief Justice John Marshall’s decision in Marbury v. Madison ensures that an originalist interpretation of the Constitution can certainly be valid when used to exercise judicial review.
 Montesquieu, THE SPIRIT OF THE LAWS, XI:6. (1748).
 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
 U.S. CONST. ART. III, §1.
 Id., ART. III, §2.
 History.com, Marbury v. Madison - Definition, Summary & Significance, A&E Television Networks (Aug. 2021), https://www.history.com/topics/united-states-constitution/marbury-v-madison.
 Marbury, at 180.
 Steven Calabresi, On Originalism in Constitutional Interpretation, National Constitution Center, https://constitutioncenter.org/the-constitution/white-papers/on-originalism-in-constitutional-interpretation.
 Gregory Maggs, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 BOST. UNIV. L. REV. 801 (2007).
 The Federalist No. 78 (Alexander Hamilton).
 See Thomas Bettge, Marbury in the Vanishing Cabinet: Evaluating Originalism in the Light of Judicial Review’s Uncertain Origins, WILLAMETTE L. RE., Vol. 55, No. 1 (2018).