The concept of a written constitution relies on the fundamental principle of a "higher law." If a constitution is indeed the supreme authority of a nation, any ordinary statute passed by the legislature that violates it must be void. This profound legal dilemma came to a head in 1803 when Chief Justice John Marshall presided over the landmark case Marbury v. Madison, forever changing the balance of power in American government.

In this historic dispute, the Court was asked to apply a section of the Judiciary Act of 1789. However, Marshall observed that this congressional act directly conflicted with Article III of the Constitution. Marshall reasoned that the judiciary's primary duty is to say what the law is, meaning judges must choose the higher law of the Constitution over any conflicting act of Congress. This established judicial review, the power to declare legislative and executive acts unconstitutional.