If there hadn't been a Bill of Rights, how would judicial review have proceeded? What would judges have used to build precedent? Feels like not much would have been agreed upon.
Executive summary
If the U.S. Constitution had been ratified without a Bill of Rights, judicial review still would have emerged because courts derive their review power from Article III and the Supremacy Clause and from early practice—Marbury and other pre‑1800 cases treated review as implicit [1] [2]. Absent express amendments spelling out specific rights, judges would have based precedents on constitutional text, common‑law principles, state practice, natural‑law reasoning used by early justices, and doctrines like presumption of constitutionality and deference to legislatures [3] [4] [5].
1. How judicial review would survive without a Bill of Rights: constitutional text and early practice
Scholars and legal resources emphasize that the Constitution’s structure—Article III’s grant of judicial power over “cases” arising under the Constitution and the Supremacy Clause—supports an implied power of courts to test statutes against the Constitution; the text does not list “judicial review” but courts have treated it as implied and exercised it from early on [1] [2]. Before and after Marbury v. Madison, lower courts and the Supreme Court acted as if they could strike down state or federal laws inconsistent with the Constitution [4] [6].
2. What judges would use to build doctrine if the Bill of Rights were missing
Absent a written catalogue of specific individual liberties, judges would still rely on: the Constitution’s structural clauses (Separation of Powers, Article I and III provisions), federal statutes and treaties as interpreted under the Supremacy Clause, common‑law traditions and natural‑rights reasoning that early justices invoked, and comparative state practices—the same sorts of sources that fed pre‑incorporation constitutional reasoning [4] [3] [2].
3. The role of natural law and unenumerated rights in shaping precedent
Early federal judges sometimes drew on natural‑law and common‑law premises to justify invalidating statutes; Justice opinions and commentators historically absorbed “natural rights doctrines” into constitutional interpretation even when the text did not specify particulars, and the Court has on occasion incorporated general principles into its holdings [5]. That pattern suggests judges could have continued to import broad principles to protect some liberties even without a Bill of Rights textually anchoring them [5].
4. The limits courts would impose: deference and the presumption of constitutionality
Even if courts asserted review power, longstanding doctrines—like the presumption in favor of legislative validity and Professor Thayer’s “clear mistake” restraint—would push judges toward deference in many areas, especially economic regulation, absent categorical Bill‑of‑Rights rules demanding strict scrutiny [5]. Thus judicial review without clear textual rights likely would have been narrower and more deferential in practice than modern rights‑driven review [5].
5. The states, incorporation, and the spread of rights protections
One key historical function of judicial review was applying federal rights against states through the post‑Civil War amendments and later incorporation; commentators note that without judicial review, the Bill of Rights’ application to states would not have been secured in the same way [7] [4]. Available sources do not mention how political enforcement mechanisms would have replaced judicial enforcement, but they stress that courts were crucial to ensuring uniform protections against state laws [7] [4].
6. What precedent formation would look like procedurally
The practical mechanics—opinion writing, seriatim opinions early on, and reliance on precedent—already existed. Before Marbury, cases like Hylton and Calder show courts treated constitutional questions seriously even when they did not invalidate statutes; judges would still issue reasoned opinions and build common law‑style precedents from repeated rulings under Article III [4] [6].
7. Competing perspectives and the political check on judicial power
Some sources underline that judicial review’s legitimacy was contested and that Congress has repeatedly sought constraints—proposals for supermajority requirements or statutory limits have appeared across history—indicating a political check on judicial power that would matter more if express textual rights were absent and public disagreement over the judiciary’s role were sharper [8] [2]. That political dynamic would shape how bold courts became in striking down legislation.
Conclusion: constrained but continuous constitutional policing
In short, even without a Bill of Rights the institutions and early practice that produced judicial review would likely have persisted: judges would ground review in Article III and the Supremacy Clause, draw on natural‑law and common‑law traditions, and proceed with considerable deference in many realms, while playing a central role in disputes over structure and federal supremacy [1] [5] [4]. Sources document both the basis for implied review and the historical tendencies that would have shaped its scope [2] [3].