Il controllo diffuso
Come nasce il Judicial review of legislation
negli Stati Uniti
Il leading case in materia è Marbury v. Madison
Alcuni «anetecedenti».
Il Bonham’s case (1610), stabilisce un principio che non
attecchirà nel Regno Unito, ma negli USA:
“(…) in many cases, the common law will
control acts of parliament, and sometimes
adjudge them to be utterly void: for when an
act of parliament is against common right
and reason, or repugnant, or impossible to
be performed, the common law will control it,
and adjudge such act to be void (…).
Therefore (…), some statutes are made
against law and right, which those who
made them perceiving, would not put them
in execution»
The “Prisoners’ case” (1782)
La Court of appeals della Virginia (1782): pur non individuando
l’incostituzionalità della legge nel caso specifico, ma afferma (in
obiter) il medesimo principio di Marbury v Madison.
“The constitution is intended, as a rule for the governors-a law
for the rule of the governed.
But why pause?
Do I tremble at the decision of my own mind, that a law
against the constitution may be declared void? or do I
dread the resentment of the court, when I bear testimony against
their competency to pronounce the invalidity of the law?
No! The revolution has given me a coat of mail for my
defense, while I adhere to its principles. That bench too is
reared on the revolution, and will arrogate no undue power.
I hold then, that every law against the constitution may be
declared void.”
Alexander Hamilton, nel “Federalist” n. 78:
If it be said that the legislative body are themselves
the constitutional judges of their own powers, and that
the construction they put upon them is conclusive
upon the other departments, (…)
The interpretation of the laws is the proper and
peculiar province of the courts. A constitution is, in
fact, and must be regarded by the judges, as a
fundamental law. (…). If there should happen to be an
irreconcilable variance between the two, that which
has the superior obligation and validity ought, of
course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the
intention of the people to the intention of their agents
Marbury v. Madison
L’art. 3 della Costituzione USA prevede le
competenze della Corte Suprema:
Original jurisdiction (corpo diplomatico, Stato
Appellate jurisdiction (NB: oggi quasi
esclusivamente certiorari, solo se il caso è di
particolare rilevanza)
Non parla di judicial review of legislation
Marbury v. Madison (1803)
Nella pronuncia, la Corte suprema risponde a
tre quesiti:
1. C’è un diritto?
2. Se c’è un diritto ed è stato violato, c’è un
3. Il remedy richiesto è quello giusto?
1. C’è un diritto?
by signing the commission of Mr. Marbury, the
president of the United States appointed him a
justice of peace for the county of Washington in the
district of Columbia;
the seal of the United States, affixed thereto by the
secretary of state, is conclusive testimony of the
verity of the signature, and of the completion of the
the appointment conferred on him a legal right to the
office for the space of five years.
2. Right and remedy?
The very essence of civil liberty certainly
consists in the right of every individual to
claim the protection of the laws, whenever he
receives an injury. One of the first duties of
government is to afford that protection. In
Great Britain the king himself is sued in the
respectful form of a petition, and he never
fails to comply with the judgment of his court.
3. Quel remedy?
Nella Costituzione si specificano i casi di
original jurisdiction della Corte suprema.
The authority, therefore, given to the
supreme court (…) to issue writs of
mandamus to public officers, appears not to
be warranted by the constitution; and it
becomes necessary to inquire whether a
jurisdiction, so conferred, can be exercised.
Le cose sono semplici…
La Costituzione è al vertice della gerarchia delle fonti, quindi:
Between these alternatives there is no middle ground. The
constitution is either a superior, paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts,
and like other acts, is alterable when the legislature shall please
to alter it.
If the former part of the alternative be true, then a legislative act
contrary to the constitution is not law: if the latter part be true,
then written constitutions are absurd attempts, on the part of the
people, to limit a power in its own nature illimitable.

Marbury v Madison.