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Marbury v. Madison – The Establishment of Judicial Review

The concept of judicial review is an element of our judicial system that few would doubt or criticize in modern times. From the time we first start learning about American government, we are taught about the separations of powers and how each of the three branches of the government keeps the other two in check. We become familiar with stories on the news when Supreme Court opinions are published and an act of Congress either is nullified or confirmed. Why should there be any reason to doubt the role of the Supreme Court and the federal court system to rule whether acts of Congress abide by the Constitution or not?

While this may generally be accepted as one of the major jobs of the Supreme Court today, the Constitution does not explicitly give the Judicial Branch the power of judicial review.  Through the establishment of court precedent, however, the ability to declare laws unconstitutional is considered an implied power under Article III and Article VI of the Constitution of the United States.

Selected clauses from Article III state:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. . . . The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . . In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Supremacy Clause of Article VI states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, 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. . . . [A]ll executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.

These excerpts of the Constitution have created enough convincing evidence for the landmark case Marbury v. Madison to establish the concept of judicial review that is such an integral part of judicial conduct.

Click here to view a Prezi that describes the setting and details of Marbury v. Madison.

There has been some concern about the powers of judicial review since Marbury v. Madison established a legal hierarchy in the United States with the Constitution reigning as the supreme law. Two Presidents of the time, Thomas Jefferson and Abraham Lincoln, were prominent in criticizing the principle of judicial review.  They believed that by making the judicial branch the guardians of the US Constitution, the court would be given a supreme position over the other two branches of government (legislative and execute).  In addition, they argued that the Justices were individuals not subject to the rigorous democratic process of election and re-election, and thus, life tenure through only the appointment and confirmation process put too much power in the hands of judges to determine the future of legislation without being fully vetted by the American people.  In 1820, Tomas Jefferson expressed his deep reservation concerning the doctrine of judicial review in a letter to William Jarvis where he stated:

“You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.  Our judges are as honest as other men, and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps. . . . Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.  The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.  It has more wisely made all the departments co-equal and co-sovereign within themselves.”

Several years later, Lincoln cited as evidence that this power brought forth a low point in American democracy with Dred Scott v. Sandford Case in 1857.  This case was decided 7-2 against Scott, an African American slave who unsuccessfully sued for his freedom on the assertion that Scott could not bring suit in the federal court under diversity of citizenship rules.  The court also overturned the Missouri Compromise arguing that the Compromise deprived plantation owners of their human (legal) property and therefore violated the Fifth Amendment’s clause that states, “. . . nor shall private property be taken for public use, without just compensation.”

However, since the days of Lincoln and Jefferson, judicial review is now widely accepted in both the political and legal arenas.  Though interpreted differently in different jurisdictions, the idea has been exported and integrated into the constitutional fabric of numerous countries such as Brazil and Germany.  Today, in the United States, it is the cornerstone of constitutional law; however, for the Founding Fathers as they figured out and solidified the governmental system, it was the first major test of the US Constitution.  With Marbury came a whole new sense of direction and a new vision of how to shape both a growing America and an America in the 21st Century.

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  1. August 12, 2012 at 1:30 pm

    Great stuff, Chris – nice work!!

    … not to go off on too big an American History tangent here, but – the aftermath of the Dred Scott decision in some ways affirms what Alexander Hamilton had written in Federalist #78 in answer to criticisms that sound similar to Jefferson’s and Lincoln’s. Recall that Hamilton had written that the Supreme Court would have “neither force nor will, but merely judgment” – in the case of this unpopular decision, the Buchanan administration, along with Republicans in Congress used the phrase ‘obiter dictum’ to dismiss much of Justice Taney’s decision:

    “The majority ruling was an obiter dictum – a statement not essential to deciding the case and therefore not binding, ‘entitled to just so much moral weight as would be the judgment of a majority to have congregated in any Washington bar-room’ (http://hd.housedivided.dickinson.edu/node/9599).

    I’m reminded of one of your notes about Justice Scalia – he recommended amending the Constitution rather than interpreting the doc as a ‘living Constitution’ – to a large extent, 13th, 14th, and 15th Amendments settled lingering issues from the Dred Scott decision…

  2. August 12, 2012 at 1:41 pm

    GREAT Prezi, Chris – well done!

    Interesting fact: in the Justices’ Conference Room at the Supreme Court, the Chief sits at the head of a long, rectangluar table with associate justices down either side. If you look at the Chief’s chair from the POV of the associate justices’ seats, then there are two paintings on either side of the Chief – one on either side of his seat on the wall behind – both large portraits in oil: Marbury on the left; Madison on the right. It could be said that the historical origins of the concept of judicial review always seem to ‘frame’ the justices’ deliberations…

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