Majoritarian Constraints on Judicial Review: Congressional Control of Supreme Court Jurisdiction

constrict the appellate jurisdiction of the United States Supreme Court as to impair the federal judicial power to declare state and national regulation unconstitutional?The answer turns on the scope of constitutional checks on that power.It is too late in the day to challenge the constitutionality of the power itself.Marbury v. Madison,' has been accepted for 179 years because it is sound.Of course, given the inevitable uncertainty of communication, alternative interpretations can be constructed for the constitutional provisions that most strongly support the judicial power to invalidate federal as well as state regulation-article III extending the judicial power of the United States to all cases "arising under this Constitution" 2 and article VI declaring that "[T]his Constitution and the laws of the United States . . .made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby any thing in the Constitution or Laws of any State to the Contrary notwithstanding." 3 But the Marbury interpretation is confirmed by the context of a constitution, and promptly adopted amendments, 4 designed to protect minorities, including individuals, from oppressive majority action 5 (and of numerous Convention statements recognizing Supreme Court authority to constitutionally invalidate state and •Published with the permission of