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The Constitution states in Article III that:

The legal case Marbury v. Madison, the basis for the exercise of judicial review in the United States, is an interpretation of the Constitution as applying to the law and politics of government. It implies the power of federal courts to consider or overturn any congressional and state legislation or other official governmental action deemed inconsistent with the Constitution, Bill of Rights, or federal law.

Opponents of judicial review have charged that the Supreme Court's power to invalidate Federal and state laws or actions has no counterpart in common or civil law, and has no textual basis in the United States Constitution. The law of the United States derives in great part from the common law traditions the colonies inherited from Britain, which arguably have vested the power of judicial review in the people since the signing of the Magna Carta in 1215.

Proponents of the doctrine argue that while it is true that judicial review is not mentioned in the Constitution, it is likewise true that the Constitution makes no explicit mention of the adversarial system, stare decisis, or virtually any other specific aspect of the common law. The argument is therefore made that these concepts were necessarily implicit in what the Framers understood by the term "the judicial power," and therefore should govern the Constitution's interpretation. See Barnett, The Original Meaning of the Judicial Power.

There is an arguable case that while judicial review is not explicitly written into the Constitution, it could be implied by the provision in Article Six,

which would imply that the laws of the United States which are not in pursuance to the Constitution are not the supreme law of the land. The remainder of Article Six

clearly means that a State law or state Constitutional provision in contravention to Federal law (which is in pursuance to the Constitution of the United States) or to the Constitution is invalid, and that the Constitution implies that judges are the proper authority to find a provision unconstitutional, and this power could equally apply to a Federal law which is not in pursuance to the Constitution.

It is for these reasons that the so-called Article 39 opponents contend that the Anglo-American tradition establishes the concept of the jury as the regulating body in legal matters, rather than the government itself. However this criticism of the Supreme Court's jurisprudence has never been articulated by any U.S. court, and it is disputed by the United States legal establishment for the following reasons.

While American constitutional law derives many of its forms and traditions from the common law, it is important to note that the constitutional order of the United States was very different from that of the United Kingdom. As the Marbury vs. Madison Supreme Court observed, the Constitution's written nature, and the formal enumeration of the powers of government would be empty promises if there were no means to measure the actions of the government against The Constitution, and strike down those found wanting (see Marbury, supra, at 177) ("[c]ertainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void"). It is the predominant view in United States constitutional jurisprudence that, because the Magna Carta is only the distant progenitor of the Due Process clauses, the Constitution is far from vesting judicial review in United States juries. In any event, and as a practical matter, the "final authority" regarding the United States Constitution is not the Supreme Court but the political will of the people, acting through the powers granted them by way of the Article V amendment powers (i.e., amendments are either proposed by Congress or by way of constitutional convention mandated by the state legislatures. Then they are either approved or rejected by 3/4 of the states through representatives of the people.)

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