• Last updated on November 11, 2022

The Supreme Court’s agreement to hear a case in which it was asked to review the constitutionality of a tax levied by Congress is regarded as implying that the Court had the power of judicial review.

Marbury v. Madison[case]Marbury v. Madison[Marbury v. Madison] (1803) is generally accepted as the first case in which the Supreme Court both asserted its power of judicial review and used that power to strike down a congressional enactment. Because judicial review is not explicitly mentioned in the Constitution, the Court’s argument was, in part, that it was so widely understood that the Court was to have that power that no specific mention was necessary. Later legal experts have searched for evidence of this claim before Marbury. This evidence can be found in Hylton and Hayburn’s Case (1792).Judicial review;Hylton v. United States[Hylton v. United States]Taxing and spending clause;Hylton v. United States[Hylton v. United States]

Daniel Hylton defended himself for nonpayment of a congressionally enacted carriage tax, asserting it was an unconstitutional direct tax and, in effect, asking the Court to use the power of judicial review to declare the tax unconstitutional. Justices Samuel Chase, William Paterson, and James Iredell all wrote seriatim (separate) opinions but agreed the tax was constitutional because it was indirect and therefore not prohibited by Article I of the U.S. Constitution. They were the only justices available to hear the case, but their agreeing to hear the case implied that the Court had the power of judicial review.

Hayburn’s Case

Judicial review

Marbury v. Madison

Taxing and spending clause

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