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The term used to refer to Supreme Court review of the constitutionality of laws is Judicial Review. Although the Constitution does not specifically grant this power to the Court, it was found to exist in the landmark 1803 case of Marbury v. Madison. Chief Justice John Marshall wrote the Court's unanimous opinion.
. . . if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
In a speech delivered at Woodrow Wilson International Center for Scholars in Washington, D.C., in March of 2005, Chief Justice Scalia refers to this authority as Constitutional Interpretation. In his speech he defends Originalism (strict adherence to the Constitution) as the only way to preserve the Constitution, contending that Non-Originalism allows judges to impose their own subjective and elitist decisions. Originalism better respects the idea of the Constitution as a binding contract,he contends.
Non-Originalism, on the other hand, holds that the framers of the original Constitution did not want their specific intentions to control interpretation of the Constitution. For, no written constitution can anticipate all the means that government might use in the future to oppress people (e.g.Brown vs. Board of Education on "original grounds" was decided incorrectly).
There are 5 sources that have guided the interpretation of the Constitution:
- the text and structure of the Constitution
- intentions of those who drafed and voted to ratify the Constitution
- prior precedents (usually judical)
- the social, political, and economic consequences of alternative interpretation
- natural law
Article III of The United States Constitution does not delegate the power of interpretation to the court, instead The Supreme Court gained the power of 'judicial review',the power to interpret the Constituition with its decision in the Marbury v. Madison 1803 case. In essence the Supreme Court headed by Chief Justice John Marshall gave the power of judicial review to the court itself. The case involved The Judiciary Act of 1789, Congressional legislation that was in conflict with the U.S. Constitution. The Supreme Court led by Chief Justice John Marshall concluded that if the Constitution was the supreme law of the land (Article VI) Congressional legislation must adhere to this principle. As a result of this decision all Congressional legislation is subject to the 'review' of the Supreme Court if warranted. With this decision, Marshall strengthened the power of the new federal government, as well as cementing the purpose of The Supreme Court.
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