Marbury v. Madison: The Beginnings of Judicial Review
Part 1: John Marshall and the Law
The Constitution says that the United States shall have a Supreme Court, but the rest of the
details are rather fuzzy. In other words, nowhere in the Constitution does it specifically say
whether the Supreme Court can declare a law unconstitutional. For that power, we have to
turn to one of the giants of American history--John Marshall.
Marshall was not the first Chief Justice of the United States. (That was
John Jay.) Marshall was, however, the first very influential Chief Justice.
His decisions, beginning with Marbury v. Madison, set the tone and
much of the legal precedent that is still being followed by Supreme
Court justices today.
In very simple terms, Marbury v. Madison, is important because it was
the first time a law of Congress was ever declared unconstitutional, or
in conflict with the Constitution. If the Constitution is the law of the land
and something is conflict with that law of the land, then that something
is illegal.
Part 2: A Little Background
So, how did we get Marbury v. Madison in the first place?
Well, it all goes back to party politics really. Alexander Hamilton and Thomas Jefferson were
the leaders of two political parties. Hamilton led the Federalists; Jefferson led the
Democratic-Republicans.
After George Washington retired, his vice-president, John Adams, succeeded him. Adams
ran for election in 1800, and he was opposed by his vice-president, Thomas Jefferson.
Adams was a Federalist.
Jefferson was elected in November 1800. At that time, the new president didn't take office
until March 4 of the following year. So Adams had a few months to try to get things done
before Jefferson took over.
In the time between the election and the time that Jefferson took office, the lame duck
Congress passed the Judiciary Act of 1801, which gave the President the power to appoint
more federal judges.
One of the things Adams tried to do, under this new law, was get as
many Federalist judges appointed as he could. As March 4 drew near,
Adams got more and more concerned with doing this. He kept
appointing judges long into the night on March 3. These were known
as the "Midnight Judges."
One of these "Midnight Judges" was William Marbury, who was named to be justice of the
peace for the District of Columbia.
Now, the normal practice of making such appointments was to deliver a "commission," or
notice, of appointment. This was normally done by the Secretary of State. Jefferson's
Secretary of State at the time was James Madison. Jefferson didn't want all those Federalist
judges, so he told Madison not to deliver the commission.
Part 3: History in the Making
Now it's important to remember that John Marshall was a Federalist and that things in the
Judicial Branch were a lot more political than they are now. Marshall wanted to support
Adams, his fellow Federalist, but he had to follow the law. Or did he?
One of the things that the new Congress, controlled by Jefferson's Democratic-Republican
party, did was pass the Judiciary Act of 1802, which reversed the Federalist-approved
Judiciary Act of 1801, turning the clock back to 1789.
Marshall and the rest of the Supreme Court decided that the power
to deliver commissions to judges, since it was part of the Judiciary
Act of 1789 and not part of the Constitution itself, was in conflict
with the Constitution and, therefore, illegal. Further, the entire
Judiciary Act of 1789 was illegal because it gave to the Judicial
Branch powers not granted to it by the Constitution.
So, it appears that Marshall sided with his political enemies, right?
Marbury, a Federalist, didn't get to be justice of the peace in the
District of Columbia. Adams was probably quite angry because his
commission was denied. Jefferson and Madison were probably quite happy because they got
to name their own friendly justice of the peace.
But Marshall gave to the Supreme Court a whole new power: the power to throw out laws of
Congress. So, no matter how many laws Thomas Jefferson and his Democratic-Republicans
passed and made into law, the Supreme Court always had the ultimate check on that
legislative and executive power. John Marshall, in appearing to lose the political battle, won
the political war.
Federal Judiciary Act (1789)
The founders of the new nation believed that the establishment of a national judiciary was one of their most
important tasks. Yet Article III of the Constitution of the United States, the provision that deals with the judiciary
branch of government, is markedly smaller than Articles I and II, which created the legislative and executive
branches.
The generality of Article III of the Constitution raised questions that Congress had to address in the Judiciary Act of
1789. These questions had no easy answers, and the solutions to them were achieved politically. The First Congress
decided that it could regulate the jurisdiction of all Federal courts, and in the Judiciary Act of 1789, Congress
established with great particularity a limited jurisdiction for the district and circuit courts, gave the Supreme Court
the original jurisdiction provided for in the Constitution, and granted the Court appellate jurisdiction in cases from
the Federal circuit courts and from the state courts where those courts rulings had rejected Federal claims. The
decision to grant Federal courts a jurisdiction more restrictive than that allowed by the Constitution represented a
recognition by the Congress that the people of the United States would not find a full-blown Federal court system
palatable at that time.
For nearly all of the next century the judicial system remained essentially as established by the Judiciary Act of
1789. Only after the country had expanded across a continent and had been torn apart by civil war were major
changes made. A separate tier of appellate circuit courts created in 1891 removed the burden of circuit riding from
the shoulders of the Supreme Court justices, but otherwise left intact the judicial structure.
With minor adjustments, it is the same system we have today. Congress has continued to build on the interpretation
of the drafters of the first judiciary act in exercising a discretionary power to expand or restrict Federal court
jurisdiction. While opinions as to what constitutes the proper balance of Federal and state concerns vary no less
today than they did two centuries ago, the fact that today’s Federal court system closely resembles the one created in
1789 suggests that the First Congress performed its job admirably.
(Information excerpted from The Judiciary Act of 1789. National Archives and Records Administration:
Washington, DC, 1989.)
Judiciary Act of 1801, 2 Stat. 89 (1801)
Facts about the Judiciary Act of 1801, passed in February of 1801:
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Also known as the “Midnight Judges Act.”
Passed by an outgoing Federalist Congress, the act eliminated the circuit riding duties of Supreme Court
justices.
Created new independent circuit courts – and judgeships – which the Federalist Adams administration
proceeded to pack with new appointees.
Reduced the number of Supreme Court justices from six to five.
Answers.com > Wiki Answers > Categories > Law & Legal Issues > Children and the
Law > Emancipation and Ages for Moving Out > What is judicial review and how is it
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What is judicial review and how is it used?
In: Emancipation and Ages for Moving Out, US Supreme Court [Edit categories]
Answer:
Judicial review is the power of the courts to review laws, treaties, policies or executive
orders relevant to cases before the court and nullify (overturn) those that are found
unconstitutional.
Judicial Review is not an American invention, but a standard part of British common
law that became part of the legal process in the United States. The first recorded use
under the US Constitution was in 1792, when the circuit courts found an act of Congress
related to military veterans unconstitutional. Congress rewrote the law -- without
protest -- in 1793.
The US Supreme Court first exercised judicial review 1796, in the case of Hylton v.
United States, although the rationale for using it had been laid in Federalist No. 78.
Hylton v. United States was the first instance in which the Supreme Court evaluated the
constitutionality of a federal law. In Hylton, the legislation, a carriage tax, was upheld.
In a later case that year, Ware v. Hylton, the Ellsworth Court determined The Treaty of
Paris took precedence over an otherwise constitutional state law and nullified the law.
The US Supreme Court case most often credited with affirming the doctrine of judicial
review is Marbury v Madison, (1803) in which Chief Justice John Marshall declared
Section 13 of the Judiciary Act of 1789 unconstitutional. This was the first time the
Supreme Court overturned federal legislation. It greatly strengthened the power of the
judicial branch, which had thus far been weaker than the other two.
Judicial review in the United States also refers to the power of the Court to review the
actions of public sector bodies in terms of their lawfulness, or to review the
constitutionality of a statute or treaty, or to review an administrative regulation or
executive order for consistency with either a statute, a treaty, or the Constitution itself.
Judicial review is part of the United States' system of checks and balances on
government. The Supreme Court has the power to review acts of the Legislative
(Congress) and Executive (Presidential) branches to ensure they don't become too
powerful or abrogate the Constitutional rights of the country's citizens.
Examples of Supreme Court Cases Involving Judicial Review
Hylton v. United States, 3 US 171 (1796)
Ware v. Hylton, 3 US 199 (1796)
Marbury v. Madison, 5 US (Cranch 1) 137 (1803)
Dred Scott. v. Sanford, 60 US 393 (1857)
West Virginia v. Barnette, 319 US 624 (1943)
Brown v. Board of Education, 347 US 483 (1954)
Baker v. Carr, 369 US 186 (1962)
Roe v. Wade, 410 US 113 (1973)
United States v. Nixon, 418 US 683 (1974)