Judicial review in the United States
In this post in the ongoing series on US law for foreign legal researchers, we will discuss the idea of judicial review and the case Marbury v. Madison. The opinion was written by Justice John Marshall, a very influential person in the history of the Supreme Court.
Judicial review
Judicial review is the idea that courts can review acts by other branches of government (state or federal) and declare these acts unconstitutional and void based on their conflict with the Constitution. The concept of judicial review can be traced back to Sir Edward Coke’s opinion in Dr. Bonham’s Case:
And it appears in our books, that in many cases, the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void;
Now we move from 1600’s England to early 1800’s America.
Marbury v. Madison
Read Article III of the US Constitution. Does it clearly give the Supreme Court the right to declare acts of the other two branches invalid?
Marbury v. Madison is the case that established judicial review. It involved whether the court had the authority to direct another branch of government, the new Secretary of State to do an act — deliver the commissions of several would-be Federal Judges appointed by a ‘lame duck’ President (a President still in office for the period of time between the election and the time for swearing-in of the next President). It is a very influential opinion, and how it is crafted, as well as its context is worthy of discussion at length. The entire opinion and some brief historical background in available here.
From the opinion:
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions — a written constitution — would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction.
The act of Congress ‘repugnant to the Constitution’ was part of The Judiciary Act of 1789, parts of which are still in force today. It violated the Constitution, according to the opinion, because it gave original jurisdiction to the Supreme Court for that which Article III only gave appellate jurisdiction. With this opinion, judicial review was in many ways born, and the hand of the Supreme Court was greatly strengthened.
Earlier post in this series available here (federal jurisdiction), here (federal courts), and here (about lawyers).
An influential early document, Federalist Paper #78 “The Judiciary Department” http://thomas.loc.gov/home/histdox/fed_78.html is also worth reviewing.
