No, the Supreme Court did not invent judicial review just last week when it heard arguments on Obamacare. On Monday, President Obama said: “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
Judicial review is not mentioned in the Constitution, but it was anticipated by the Founders. In 1788, Alexander Hamilton explained in Federalist 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.
In 1796, the Supreme Court first exercised judicial review of a federal law when it upheld a carriage tax against the claim that it violated the Constitution’s provisions on direct taxation (Hylton v. United States).
In 1803, the Supreme Court ruled that Section 13 of the Judiciary Act of 1789 was unconstitutional because it redefined the original jurisdiction of the Supreme Court, which is set out in Article III of the Constitution. The case, Marbury v. Madison, was the first time the Court ruled a federal law unconstitutional.
To date, the Supreme Court has ruled 165 acts of Congress unconstitutional. (For a list, see page 2119 of the U.S. Senate Publication, “The Constitution of the