To begin with, while the power to review and strike down laws is within the purview of the federal judiciary, to say that this is its “primary function” is probably too simplistic. To look at Article III of the Constitution, judicial review (the power in question here) is not explicitly given, but the judicial power does “extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”

Hence the Supreme Court’s function—and really, the function of the federal judiciary—is as an appeals court of last resort, as a judge of controversies over federal law, and as an arbiter of disputes between individuals under separate States. It is important to note here that one section here was revised by the 11th Amendment, which I will get to shortly.

But before we go any further, I need to take a moment to soapbox a bit, because I think the Marbury case is taught incredibly poorly in schools, and even college textbooks often repeat what I think are pretty serious myths about the origins of judicial review. The popular story seems to go that judicial review was this very nebulous and unclear power that was pulled from the constitutional vapors by John Marshall, and that it was a fairly novel concept. This is, I think, a profoundly poor reading of history. For one thing, observers at the time did not think Marshall’s ruling particularly controversial or earth-shaking. Even Jefferson, hardly a Marshall stalwart, apparently did not think Marshall had exceeded his authority, and indeed the Marbury case actually seemed to circumscribe the court’s reach, which didn’t bother Republicans [1]. For another, the idea of judicial review had been explicitly discussed at the constitutional convention, and had been practiced several times in both state and federal courts, before the Marbury ruling [2]. Marbury simply represents the first time an Act of Congress was struck down by the Court, and indeed it would not do so again until 1857 in the notorious Dred Scott decision.

Judicial review had already been operating in the States in the 1770s and especially in the 1780s, at the State level. In Virginia, George Wythe declared, “If the whole legislature, an event to be deprecated, should attempt to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, here is the limit of your authority; and, hither, shall you go, but no further,” clarifying that courts were indeed arbiters of constitutional law [3]. If written constitutions were indeed supreme laws, not merely statements of principles, it naturally followed that courts were arbiters in determining the scope of constitutional authority as it extended to laws under that constitution’s jurisdiction (see also Article VI of the Constitution, which in concert with Article III is the basis for judicial review).

When the constitutional convention was convened, judicial review and the settling of constitutionality of statutes was discussed numerous times. Madison’s original plan called for a “council of revision,” similar to New York’s, that would allow a joint commission of the executive and judicial branches to review acts of law passed by the legislature to evaluate them against the constitution. This formulation was rejected in part because other delegates believed that courts already had the power of judicial review, but that reviewing and judging the laws ex ante would interfere with their ability to rule on them ex post [4]. Indeed, at ratifying conventions, delegates also seemed to agree that the federal judiciary had the power of judicial review, though a number of Anti-Federalists like Robert Yates were skeptical of such power—not because they believed it legally questionable, but because they doubted the ability of the Court to remain above the political fray and to rule narrowly. Hamilton even mentions the idea in Federalist 78, though he does not use the phrase “judicial review” [5].

A number of important cases came before the Court in the 1790s before the Marbury case. Significantly, in the Chisholm v. Georgia case, Federalist judges who were keen to solidify the power and majesty of the national government ruled that states did not enjoy sovereign immunity protecting them from suits raised by citizens of other states. The pushback to this decision resulted in the 11th Amendment that I alluded to earlier. Three other cases should be of significant note as well. In Hayburn’s Case, the year before Chisholm, a federal court (though not the Supreme Court) held an Act of Congress unconstitutional for the first time (11 years before Marbury). They did so apologetically, but it did not arouse particular controversy because like Marbury it dealt with separation of powers and seemed to actually limit the judiciary’s authority. In another case, Hylton v. United States, the constitutionality of an Act of Congress was brought before the Supreme Court, but the law (a tax) was upheld rather than struck down; this is still an act of judicial review, however. Finally, in Ware v. Hylton, the Court struck down a state law in Virginia that interfered with a peace treaty clause dealing with Revolutionary War debts. This also is an example of judicial review, though not of a federal law [6].

So, long story short, to answer the question, the Court was indeed addressing questions of constitutionality well before Marbury. They simply did not strike down Acts of Congress up to that point (though an inferior court already had). This was hardly the end of controversies over the scope of the Court’s authority or the question of whether the Court had sole authority of constitutional interpretation, but those are issues for another time.

[1] Gordon Wood, Empire of Liberty, Ch. 12

[2] Records of the Federal Convention of 1787

[3] See Commonwealth v. Catton

[4] See Wood, above; see also Jack Rakove, “The Origins of Judicial Review”

[5] Federalist #78: “[A]ccordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former… [T]he courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.”

[6] William Treanor, “Judicial Review Before Marbury”

This is a fantastic answer. Thank you. I had no idea that a lesser court had already done it first before the Marbury case.

The real answer is always so much more nuanced than I anticipate.