What is Judicial Review?

Judicial review is the power of the judicial branch of the U.S. government to decide if legislation from Congress or the Executive branch violates the U.S. Constitution. If the Supreme Court rules that legislation violates the constitution, it declares the act null and void. That means that the law or act is cancelled. In the U.S., the Supreme Court has this balance of power, although this authority is not specially addressed in the U.S. Constitution. Additionally, state courts have this authority over their state branches of executive and legislative government.


 Should the Supreme Court have the authority to declare legislation of Congress and the Executive branch unconstitutional?

A concept that evolved in the U.S. government was the idea that the judicial branch should have the authority to interpret the U.S. Constitution. The Supreme Court can rule is a law passed by Congress violates the U.S. Constitution and therefore whether the act is valid or null and void.

The Founding Fathers debated the balance of powers between each branch of government. In Colonial America, the British system of government featured a Privy Council, a group that counseled the monarch, and it had the authority to veto laws passed by the colonial legislatures if they violated British law. After the American Revolution, some state courts declared laws made by thier own state legislatures unconstitutional. The concept of judicial review is not mentioned in the U.S. Constitution. However, in short time, the Constitution would be interpreted to establish the Supreme Court with this specific authority to judge the constitutionality of executive or legislative acts.

supreme court

How was the power of Judicial review established?

The question of whether the Supreme Court should have the power of judicial review over the legislative and executive branches of the U.S. government was debated at the Philadelphia Constitutional Convention. While the Constitution does not specifically authorize the Judicial Branch to validate the constitutionality of legislative and executive branch acts, many believe that the Founding Fathers assumed that the Supreme Court would have this specific power.

[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority…[W]hen the will of the legislature, declared inits statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”  

                                                        – Alexander Hamilton, The Federalist Papers, #78.

 James Madison argued that it would give the judiciary a “check” on congressional violations of rights. This opinion had been shared by Thomas Jefferson as he wrote to James Madison in an attempt to include a bill of rights.

The initial use of judicial review, as it turns out, had to do with taxes, and not individual rights and freedoms. In 1794, Congress placed a federal tax on carriages. The Supreme Court agreed to hear a case that challenged the tax as unconstitutional. The Court established that the carriage tax was constitutional. Since the Court validated the tax, it passed without controversy. However, in 1803, the Supreme Court found a Congressional act unconstitutional for the first time, that case became highly controversial. That case was Marbury v. Madison.

marbury v madison

The history of Marybury v. Madison

During the election of 1800, the Republican candidate Thomas Jefferson defeated Federalist John Adams. Although, the election was decided on February 17, Thomas Jefferson did not take his office until March 4, 1801. During the transition period, Federalist President John Adams was still in power. The Federalists passed a new judiciary act creating a number of new federal courts. Some of the federal judges were not appointed until March 2 and 3rd – just days before the new president took office. Adam also appointed the Secretary of State, John Marshall, to be the Chief Justice of the Supreme Court.

When Thomas Jefferson took office, the presidential commissions, which gave several Federalists new positions as judges, had not been officially delivered to them. They were supposed to have been delivered by the outgoing Secretary of State, John Marshall. President Jefferson did not want more Federalists serving as judges.  The new Secretary of State, James Madison was instructed not to deliver the new presidential commissions.

On commission not delivered was that of William Marbury. He had been appointed by President Adams to servce as a justice of the peace for the District of Columbia. Marbury tried to find a way to get what he believed was his office. He discovered that the Judiciary Act of 1789 gave the Supreme Court the power to issue a Writ of Mandamus. A writ of mandamus is a court order that forces and officer of the government to od something that the officer is supposed to do. In this case, Marbury argued that it was Madison’s durty to give him his commission. He asked the Supreme Court to issue a writ of mandamus ordering Madison to deliver the commission.

This place Chief Justice John Marshall in a difficult position. He was worried about what might happen if the Supreme Court ordered Madison to deliver Marbury’s document when President Jeffereson order him not to. Courts must rely on the executive branch for enforcement of the laws. If Jefferson wer to refuse to obey the order of the Supreme Court, it would make the Court appear weak and powerless. If the Supreme Court did not order the president to deliver the document, however, the Court would appear weak.

Chief Justice John Marshall was faced with a difficult situtation. Marshall solved the problem in a very unusual and ingenious way. Marshall asked three key questions:

1. Does Marbury have a right to the appointment?

2. If Marbury has a right to the appointment and his right has been violated, do the laws of the country give him a way to set things right?

3. If the laws of the country give Marbury a way to deal with this problem, is that a writ of mandamus from the Supreme Court?

 john marshall

Marshall answered “yes” to the first two questions and “no” to the third.

Marshall decided that the appointment had been singed by the president and sealed by the secretary of state; therefore, Marbury had the right to hold the office for five years as provided by law.

Marshall believed that the secretary of state is an officer of the government directed by the Constitution and laws made by Congress to perform certain duties, such as delivering commissions. When the secretary of state refused to do so, he broke the law and violated Marbury’s rights. Marshall also determined that Marbury should have a legal remedy – a way to set things right through the courts.

Lastly, Marshall said “no” to the writ of mandamus. The Chief Justice argued that the part of the Judiciary Act that gave Marbury the right to ask the Supreme Court to issue a writ of mandamus was unconstitutional. The Constitution clearly limits the Surpreme Court’s original jurisdiction – the cases it can hear without their first beign heard by a lower court, to “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” Marbury was not an ambassador, minister, consul, or a state, so the Supreme Court did not have the power to hear his case unless it was first heard in a lower court and then appealed to the Supreme Court.

John Marshall argued that the part of the Judiciary Act that gave Marbury the right to have his case heard before the Supreme Court changed the U.S. Constitution. Since Congress did not have the authority to change the Constitution, that part of the Judiciary Act was unconstitutional.

Chief Justice John Marshall did not order Secretary Madison to deliver the documents. Thus, the Supreme Court avoided the certain embarassment of having President Thomas Jefferson, refuse to obey the Court’s order. In the process, Marshall established a much more important power for the Supreme Court. By declaring a part of the Judiciary Act unconstitutional, the Supreme Court gained the power of judicial review simply by exercising it.

What is the significance of the Marbury v. Madison decision?

Although a direct confrontation over the Marbury appointment was avoided, President Jefferson was opposed to the idea of judicial review. President Jefferson argued that each branch should judge for itself whether a law was constitutional. No one branch, Jefferson argued, should have the power to determine constitutionally for the others. If Congress decided that an act was constitutional, and the president agreed adn signed the bill, the Supreme Court should respect those judgments.

Chief Justice justified the Court’s use of the power of judicial review with the following argument. When the people adopted the Constitution, they agreed that it would be the supreme law of the land. Therefore, they had consented to be governed by its rules, which included certain limitations on the powers of Congress. When Congress violates those limitations, it has violated the will of the people as expressed in the Constitution. If the Supreme Court did not have the power of judicial review, there would be no effective way to enfroce the limitations placed on the powers of Congress in the Constitution. Its powers would be unlimited, and we would no longer have a constitutional government. The judiciary, therefore, is the guardian of the Constitution.



About historymartinez

Social Studies Department Chair, Room A305 Tutoring Mondays @ 4:15 pm & Wednesdays @ 8:00 a.m.
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