Judicial review is the principle that the courts have the power to rule on the constitutionality of legislation. The first instance of judicial review resulting in a law being declared unconstitutional took place in North Carolina in 1787. In the case of Bayard v. Singleton, a North Carolina court ruled that every citizen had the right to a jury trial where property rights were involved, and that a North Carolina law allowing certain suits to be dismissed violated the North Carolina constitution. In Madison v. Marbury in 1803, Chief Justice John Marshall established the principle that the United States Supreme Court would be the final arbiter of constitutionality. This what Thomas Jefferson had wanted at first, but when the Supreme Court under the Federalist Marshall frustrated many of his administration`s objectives, he reversed course, and by 1815 was advocating that each of the three branches of the federal government should be its own final judge. What had come to pass was what some opponents of the constitution had argued during the ratification process, but by 1815 it was too late. Although accepted in practice throughout the country, the principle of judicial review was controversial for many years. As late as 1825, John Bannister Gibson, a justice on the Pennsylvania Supreme Court, wrote in a dissenting opinion on Eakin v. Raub that judicial review should be limited. In Adkins v. Children`s Hospital in 1923, Justice Sutherland, writing the majority opinion, gave a review of the principle of judicial review:
The judicial duty of passing upon the constitutionality of an act of Congress is one of great gravity and delicacy. The statute here in question has successfully borne the scrutiny of the legislative branch of the government, which, by enacting it, has affirmed its validity; and that determination must be given great weight. This Court, by an unbroken line of decisions from Chief Justice Marshall to the present day, has steadily adhered to the rule that every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt. But if by clear and indubitable demonstration a statute be opposed to the Constitution, we have no choice but to say so.Sutherland further noted that there was no "substantive power to review and nullify acts of Congress." This power, he asserted, was simply a logical concomitant of the power to decide cases based on law, since sometimes laws conflict and the court necessarily defers to the law with the higher standing. Since there is no higher law than the U.S. Constitution and no higher court than the Supreme Court, it falls on that body to decide constitutionality. While the theoretical power of judicial review was established by Marbury, it remained a seldom-used tool until about 1890 and continued to be applied vigorously until 1937. Before the Civil War, only two acts of Congress were invalidated by the Supreme Court, while in the shorter period from 1890 to 1937, sixty-nine were. One of the last instances of the court overturning a major piece of legislation was in Schechter Poultry Corporation v. United States in 1935. The court took a narrow view of the interstate commerce clause, ruling that Schechter no longer engaged in interstate commerce, even though some of their product had been purchased out-of-state, because going forward it was entirely within the state of New York. This was the highwater mark of the restrictive interpretation of the commerce clause and subsequent court rulings have taken a distinctly broader view. After his victory in the election of 1936, Franklin Roosevelt determined to put an end to the obstruction he was experiencing from the court and proposed to Congress new rules which would allow him to appoint additional justices to the Supreme Court, up to a total of 15. While he embellished his primary objective with extraneous points, his fundamental position was that under the reactionary majority of the court at that time, the concept of judicial review had been subverted and the court had become a de facto legislative body. His proposals were not accepted, while at about the same time the court turned away from its practice of invalidating New Deal legislation, so the question became moot. In West Virginia Board of Education v. Barnette in 1943, Justice Felix Frankfurter wrote in dissent that:
In the past, this Court has from time to time set its views of policy against that embodied in legislation by finding laws in conflict with what was called the "spirit of the Constitution." Such undefined destructive power was not conferred on this Court by the Constitution. Before a duly enacted law can be judicially nullified, it must be forbidden by some explicit restriction upon political authority in the Constitution. Equally inadmissible is the claim to strike down legislation because, to us as individuals, it seems opposed to the "plan and purpose" of the Constitution. That is too tempting a basis for finding in one`s personal views the purposes of the Founders.