The History Column: In Defense of Judicial Review
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In the course of American politics, perhaps no issue has been debated longer than the topic of judicial review. Ever since it was established in the landmark Supreme Court case Marbury v. Madison, in 1803, judicial review has been one of the most controversial topics discussed in the United States.

What is judicial review? Judicial review is the power of the Supreme Court of the United States to interpret the meaning of the Constitution. For instance, if a law regulating free speech were brought before the Court, then the Court would have to refer to the Constitution to decide whether or not the law is constitutional. The First Amendment says that "the Congress will make no law...abridging the freedom of speech...," but the question remains: are there limitations? This is judicial review: to take what the Constitution says and interpret it, and apply the interpretation to cases brought before the Supreme Court.

Now, what caused judicial review to spark controversy in American politics? The accusation those who disagree with judicial review present is that it has no constitutional basis. After all, the Constitution never explicitly writes that judicial review is a direct power of the Supreme Court. The only direct powers that the Supreme Court is given comes from Article III, Section 2, Clause 2, which grant the Court original jurisdiction (the right of a higher court to hear a case that has not gone through lower courts) in "...all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party..."

In all other cases, the Court would have appellate jurisdiction. This means that most of the judicial powers, which are outline in Section 1 of Article III, must go through the lower courts first, then move up through the higher courts until it reached the Supreme Court. Among these judicial powers outlined is the power to review laws "arising under this Constitution." So reviewing laws under the Constitution is an appellate power of the United States Supreme Court.

When judicial review was established in Marbury vs. Madison in 1803, however, the plaintiff, a man named William Marbury, brought forth a case directly to the Supreme Court, one in which the Court only had appellate jurisdiction. In this case, Marbury had been been commissioned for the position of the Justice of the Peace of the District of Columbia during the waning days of the administration of John Adams and the rise of Adams's rival, Thomas Jefferson. The commission had been accidentally undelivered, and when Jefferson took office, he told the man in charge of delivering the commission, newly-appointed Secretary of State James Madison, not to deliver it. Angry, William Marbury filed suit with the Supreme Court, claiming that he had a right to the commission and demanded that the Supreme Court issue an order (a "writ of mandamus") forcing Madison to send Marbury the commission. To answer the question of whether or not the Court had original jurisdiction in this case and the question of whether or not the Court could issue a writ of mandamus, he said that it did because a 1789 law known as the Judiciary Act had expanded the Court's power to handle both problems.

Section 13 of this "Judiciary Act," as it was called, had expanded the Supreme Court's original jurisdiction, granting it authority over cases like Marbury's, and had granted it the ability to issue writs of mandamus in the event of noncompliance with the Court's decision. The then-Chief Justice, John Marshall, however, knew his hands were tied behind his back. Whatever his Court decided, he understood that, with no police force of its own, the Court would be unable to enforce the decision. Jefferson and Madison could well ignore him. Already, they were pointing out that the Constitution itself did not give the Court original jurisdiction in Marbury's case. The law that Marbury had used for his own suit, however, had granted the Court the jurisdiction it needed. As such, Marshall moved forward with the case rather than let it go.

In the Court's opinion, he did something rather clever: rather than rule in Marbury's favor and anger Jefferson, his Court ruled against Marbury. Yes, Marshall wrote, Marbury had a right to his commission, and Secretary Madison should have delivered it. However, Marshall argued, Madison was also correct that per the Constitution the Supreme Court had no power to review this case first. At the same time, Section 13 of the Judiciary Act had expanded the Court's original jurisdiction to Marbury's case. Marshall wrote that this meant that Section 13 of the Judiciary Act and Section 2 of Article III of the Constitution were in conflict with each other. In other words, the law itself was unconstitutional. The Constitution is the "supreme law of the land," wrote Marbury, a statement that he knew Madison and Jefferson agreed with, so therefore, any law that is in conflict with the Constitution is not actually law. Therefore, he ruled, the Court could not issue a writ of mandamus to the Secretary of State ordering him to give Marbury his commission.

See what happened here: judicial review was established in a logical and legal manner. Marshall could not ignore the case. Marbury had made an honest mistake because of the provisions of the Judiciary Act, which gave him the right to ask for the Court's aid. But Marshall ruled against Marbury, writing that the Court's power had been expanded unconstitutionally. This was true, but in so doing, he established a precedent for judicial review in future cases.

Now again, a skeptic would point to this meaning that judicial review was established from thin air, that Marshall was a hypocrite in calling out the unconstitutionality of a law while himself doing something unconstitutional. Marshall, however, was indeed within his constitutional limitations. He knew the Judiciary Act had expanded the Court's power illegally, but in order to establish this as fact, his Court had to review the Constitution. As consequence, he would have to issue a Court opinion. So the power of judicial review came naturally.

At the time, Jefferson could do nothing about it. Try as he might to find a hole in the reasoning, he was unable to undermine Marshall's decision, still more so because Marshall had ruled in Madison's favor, who was represented Jefferson's side of the argument. Rather than argue that judicial review was unconstitutional, Jefferson responded by saying the states could annul Court decisions, a statement which was itself not supported by the Constitution.

Despite the debate surrounding it, judicial review is indeed legal. The Constitution may not directly affirm this power, but if a law is in conflict with the Constitution, then it is natural that the Supreme Court would have to point out this flaw. Therefore, judicial review is constitutional.

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