The Principals of Judicial Review
Who was the most influential American of the founding era of the United States: George Washington,
due to his military and political achievements? Thomas Jefferson, for the Declaration of Independence
and the acquisition of the Louisiana Purchase? James Madison, for his "writing" of the Constitution and
subsequent service in the House of Representatives, as Secretary of State, and President? Or might it be
John Marshall, who served as Chief Justice of the U.S. Supreme Court for 34 years, longer than any other
Chief Justice, and whose ground-breaking decisions still affect the lives of every American?
It is safe to say that as Madison was the "father" of the Constitution and Washington the "father of the
powers of the Presidency," Marshall was the "father of the Supreme Court," almost single-handedly
clarifying its powers.
What if the Supreme Court did not have the power to review laws or executive decisions, to overturn
those that are "unconstitutional" - how different life might be in the United States? Until 1803, it was
not a foregone conclusion that the Supreme Court of the United States would have that power, despite
the fact that judicial review had its origins in early seventeen-century England and had been asserted by
James Otis in the period leading up to the American Revolution. A relatively minor lawsuit led to one of
the most important Supreme Court decisions in American history, Marbury v. Madison, laying the
foundation for the Court's ability to render its decisions about laws and actions. In Marbury v. Madison,
the Supreme Court claimed the power to review acts of Congress and the president and deem them
unconstitutional, creating a precedent for an American process of judicial review. Through the decision
of Chief Justice John Marshall, then, the court assumed the powers with which it has since played such a
vital role in American life.
The Origins of Judicial Review
The Constitution does not specifically mention judicial review. Where does this practice come from?
Colonial Roots. Before the revolution in 1775 the English Privy Council (advisers to the king) in
London regularly reviewed acts of the colonies to make sure they complied with English laws. During
the Revolution each of the colonies formed state governments. Between 1778 and the Constitutional
Convention in 1781, the courts in several states adopted the practice of overturning laws which they
found violated their respective constitutions. Thus, legal precedent had established judicial review as a
well-known practice before the Constitution was written.
When the founders wrote the Constitution, few doubted that they intended the federal courts to
have authority to declare state laws unconstitutional. However, the Constitution did not indicate clearly
that they intended the Supreme Court to have the same power to review acts of congress or of the
President.
A constitutional Debate Starts. During the debate over ratification of the constitution, Alexander
Hamilton argued that the Constitution implicitly gave the Supreme Court the power of judicial review,
even it it did not state that delegation of authority explicitly. In The Federalist (#78) Hamilton wrote:
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. It therefore belongs to
them to ascertain its meaning, as well as the meaning of any particular act proceeding from the
legislative body. 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.
John Marshall, a young lawyer from Virginia, who supported the Constitution, summarized the need
for judicial review.
To what quarter will you look for protection from an infringement on the Constitution if you will
not give the power to the judiciary (the Supreme Court): There is no other body that can afford
(offer) such protection.
Other political leaders of the time did not share Marshall’s enthusiasm. As the new government
began to operate, Thomas Jefferson emerged as a leader of those who opposed extending the Court’s
use of judicial review to include supervision of the executive and legislative branches of the national
government.
Jefferson wanted each of the three branches of government to interpret the meaning of the
Constitution. Thus Congress would decide for itself whether or not its actions violated the Constitution.
Likewise, the president would review the constitutionality of executive actions. Jefferson presented an
alternative to the system of judicial review:
My construction of the Constitution is…that each department is truly independent of the others,
and has an equal right to decide for itself what is the meaning of the Constitution in the cases
submitted to its action most especially where it is to act ultimately without appeal…Each of the
three departments has equally the right to decide for itself what is the duty under the
Constitution, without any regard to what the others may have decided for themselves under a
similar question.
When Jefferson won the presidential election in 1800 the question or whether or not the Supreme
Court would exercise judicial review over acts of Congress or of the President remained unresolved. The
Court first asserted the power of judicial review of congressional actions in a case stemming from the
bitterly contested election which brought Jefferson to office. *Remember how Jefferson won the
election and who ran against him for the office.*
Marbury v. Madison (1803). William Marbury was one of the forty-two men awaiting “midnight
appointment” signed commissions from President Adam’s administration on March 3, 1801 appointing
them justices of the peace for the District of Columbia. The President, a Federalist, rushed the
appointments of these loyal Federalists through the Senate just before his term of office ended. He
hoped to leave his successor, the Democratic-Republican Jefferson who took office March 4, 1801, with
a court system packed with opponents.
Adam’s plan faltered when his Secretary of State, John Marshall, failed to deliver all the commissions
before Jefferson’s inauguration. Discovering Adams’ plan, President Jefferson instructed his new
Secretary of State, James Madison, not to deliver the remaining commissions, one of which was
Marbury’s.
In an effort to force Madison to release his commission, William Marbury examined the Judiciary Act
of 1789. The act allowed Congress to establish a system of federal trial courts with broad jurisdiction
which in turn created an arm for enforcement of national laws within each state. He found that the act
had given the Supreme Court the power to issue writ of mandamus, orders forcing public officials to
perform their official duties. Armed with this law, Marbury petitioned the Supreme Court, asking the
justices to issue a writ to Madison commanding him to deliver the commission.
When Madison refused to obey the writ of mandamus the case came before the Supreme Court.
The Court held that Marbury had a right to the commission he demanded, according to the Judiciary
Act of 1789. However, the Court also decided that it had not right under the Constitution, to issue a writ
of mandamus forcing Madison to deliver the commission to Marbury.
Chief Justice John Marshall explained the decision, establishing a precedent for judicial review of
congressional acts. Marshall examined Article III, Section 2 of the constitution to determine what sorts
of cases the Supreme Court had original jurisdiction over – cases for which court action would begin at
the Supreme Court level. The Supreme Court is primarily an appellate court, empowered to hear
appeals from lower courts and has few original jurisdiction powers. Article III did not include issuing
writs of mandamus within the court’s original jurisdiction. Thus, part of the Judiciary Act violated the
Constitution. Applying the principle of judicial review, Marshall wrote:
Certainly all those who have framed written constitutions contemplate them as forming the
fundamental and paramount law of the nation, and consequently the theory of every such
government must be that an act of the legislature, repugnant to the Constitution is void.
The Supreme Court declared one part of the Judiciary Act of 1789 unconstitutional. Thus William
Marbury failed in his bid to acquire the commission appointing him a justice of the peace. Far more
significantly, the Supreme Court had asserted the power of judicial review, establishing a precedent for
the development of a main principle of constitutional law in the United States.
In later decisions, federal judge’s ruling other legislative actions unconstitutional based on their right
to do so on John Marbury’s arguments in Marbury v Madison. Thus, Marshall established a precedent
that has become an integral part of constitutional government in the United States.
"It is emphatically the province and duty of the judicial department to say what the law is."
- Chief Justice John Marshall, in Marbury v. Madison, 1803-