Introduction
Marbury v. Madison, 1 Cr. 137 (1803), is perhaps the most controversial United States
Supreme Court cases ever. Few experts would dispute that the impact of Marbury v. Madison has
forever changed the United States government and the role of the courts in our government.
According to Epstein and Walker, judicial review can be defined as “ the authority of a court to
determine the constitutionality of acts committed by the legislative and executive branches and to
strike down acts judged to be in violation of the Constitution” (Epstein and Walker 1995, p. 630).
Judicial review is worthy of being studied for a number of reasons: (1) the Constitution does not
clearly give the courts the authority of judicial review, (2) what standards should be used when
nine un-elected officials in a democracy are judging the law, and (3) should the Court have this
very powerful weapon. Most importantly, judicial review should be investigated because it has
forever changed the United States’ political system. The purpose of this paper is to examine the
United States Supreme Court’s decision of Marbury v. Madison, the background of the case, the
case’s effect on the role of the Court, basic arguments for and against judicial review, and the
case’s effect on federalism.
Judicial Review and the Court’s Majoritarian Difficulty
Judicial review by the Supreme Court has raised many controversial issues concerning
the role of the Supreme Court. The federal judiciary is the least democratic branch of our
government, yet it has the power to act as a final constitutional judge, and the fact that it can
serve central values in our society seems to undermine the perception of democracy. According
to Choper (1980), three very broad questions immediately come to mind when it comes to the
idea of judicial review: (1) who determines when the Constitution has been violated, (2) by what
standards should the matter be judged, and (3) what method should be used when determining
whether or not constitutional lines of our democracy have crossed?
According to Choper (1980), the first question of who shall determine when the
Constitution has been violated seems to have been answered early on in our history. Marbury v.
Madison established a precedent for judicial review of Congressional legislation, and later the
Court extended its power to review state legislation. Thus, the Court established itself as the
wielder of judicial review. It is important to note that Marshall’s opinion in Marbury set up an
unveiled signal of judicial review. The signal for judicial review was later explicitly confirmed
by Chief Justice Taney, and the Court has consistently acknowledged that the answer to some
Constitutional questions rest in the other branches of the government (Choper 1980, p. 61-62).
It is important to note that there are different theories about who should interpret the
Constitution. Evidence in the Constitution suggests that the executive and legislative branches of
government also should be responsible for interpreting the Constitution. According to Murphy
(1986), Article I, Sec. 8 of the Constitution clearly implies that Congress shall have the authority
(with the president’s approval) to make laws that are “proper” under the Constitution. He also
suggests that similar terms in the Thirteenth, Fourteenth, Fifteenth, Nineteenth, Twenty-third,
Twenty-fourth, and Twenty-sixth Amendments indicate that Congress has the authority to
interpret the Constitution. In the same article, Murphy suggests that Article II indicates that the
president also has the authority to interpret the Constitution. He notes that Article II indicates
that the president must “preserve, protect, and defend the Constitution.” Murphy notes that it be
impossible for the president to do his or her job without interpreting the Constitution (Murphy
1987, p. 39).
According to Murphy (1987), there are three theories that claim to provide the answer to
the question of who shall interpret the Constitution. The three theories are known as judicial
supremacy, legislative supremacy, and departmentalism (Murphy 1987, p.39-41). Judicial
supremacists argue that the judicial branch should interpret the Constitution. Judicial
supremacists point to functional and textual support used in Marbury, Article IV, and the intrinsic
nature of the court to justify their arguments. However, Murphy (1987), also maintains that the
Constitution does not expressively give the Court judicial review, and judicial review does not
indicate its obligations to the other branches.
Murphy (1987) argues that legislative supremacists believe Constitutional interpretation
should be performed by the legislative branch. Theorists under this doctrine often argue that
impeachment could be used to make judges bow to the power of the legislature. However,
Murphy (1987), indicates that constitutionalism is reluctant to give elected officials this final
authority of review.
Conclusion
In summary, Marbury v. Madison and the power of judicial review have evolved into a
very powerful and important function of the United States Supreme Court even though it is not
explicit in our nation’s great Constitution. Marshall must have been aware of the Court’s limited
power, and he set up an unveiled precedent of power. His keen insight enabled him to notice that
the political situation was right, and he seized the opportunity to hand down one of the most
controversial decisions ever. The fact that the development of judicial review was slow and that
the Court did not abused its new power were both instrumental in the development judicial
review.
After researching Marbury v. Madison and judicial review, I believe that the Court
should have this profound power. Structurally the Court is the weakest because it does not posses
either the sword or the purse, so it makes sense that the Court would receive this power. I believe
that the political isolation of the Court also justifies the Court development and use of the power.
The Court’s isolation allows it to make less-passionate decisions without worrying about reelection unlike elected officials. The idea of departmentalism also promotes the idea of judicial
review because the practical realities of real life indicate that all three branches of the government
must interpret the Constitution. As for the existence of judicial review, I believe that it is
necessary for the Court to possess this power because the Constitution is capable of being
antimajoritarian when it is practically applied to real life. Based on these preceding arguments, I
believe that very compelling and practical arguments for the use of judicial review by the Court
has been justified.
The role of the Court has clearly changed throughout the history of the United States.
When the United States was founded and as it began to develop, the power of the Court was
relatively minor. As the United States began to mature, the Court’s power also began to mature.
Marbury v. Madison is definitely a powerful and successful precedent for the Court. Some
people would argue that Marbury is a precedent of unconstitutional power, and others argue that
it is essential for a democracy. Whatever the case, the Court has the power, and the Court has
slowly developed the power into possibly the strongest weapon that our government has to offer
to control itself. The federal government can use the power of judicial review to control
legislation from the state governments, and to promote the idea of national supremacy.
Therefore, it can be argued that judicial review has had an important effect on federalism.
Marbury v. Madison has arguably tested the limits of the U.S. Constitution, and it has become a
very powerful precedent for the Court. However one wants to put it, nine un-elected officials in a
democracy have the power to make final decisions about the law. The Constitution could be
amended to overturn the Court’s decision, but as history indicates, amending the Constitution is
not an easy task.
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