JUDICIAL REVIEW
(various Emphasis Added)
(various Emphasis Added)
NEVER FORGET !
Judicial review: "A court's authority to examine an executive or legislative act and to invalidate
that act if it is contrary to constitutional principles."(D)
The concept that the U.S. Supreme Court had the authority to determine what the law said has been a point of disagreement since before the 1787 Constitutional Convention. In general it was supported by "Federalists" and opposed by "Anti-federalists":
In Madison's notes, from the 1787 Constitutional Convention, you will see that 11 of the 55 original representatives brought up the concept of judicial review, during the debates, and that 9 of them approved of the idea. From the discussions, proponents contend that it seemed clear that, for many of the delegates, the concept was "implied". They point to the fact that many of the delegate's home states already had provisions for judicial review, within their own state laws, prior to the 1787 Constitutional Convention.
"To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection."
(John Marshal, in the Virginia Convention)
Opponents of judicial review cite Section 2, Clause 2 of Article III of the Constitution. They contend that the Supreme Court can only consider the facts of the case and if existing law applies to the case. The Constitution does not specifically give the authority, to the Court, to determine if the law is, constitutionally, valid.
Opponents also cite the records of the 1787 Constitutional Convention and note that, although several delegates were in favor of judicial review, the Convention explicitly rejected all proposals allowing the judiciary to strike down laws or policies passed by the other two branches. Thomas Jefferson later addressed his concerns of judicial tyranny in an 1804 letter to Mrs. John Adams:
"BUT THE OPINION which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch."(*)
This issue came to a head, in 1803, in the Supreme Court Case Marbury v. Madison. Outgoing President John Adams' party (Federalists) had lost control of both the Senate & House to incoming President Thomas Jefferson's Democrat-Republican party. This left the Justice Department as the only place that Adam's party had any influence.
Fearing loss of Federalist influence Adams appointed his Secretary of State, John Marshall as the Chief Justice of the Supreme Court. Adams then got with congress to create numerous new judicial offices which he quickly packed with "Federalist" judges. This was done on March 1, 1801. Adams rushed to get all the commissions signed and distributed (later called the "Midnight Appointments). Due to the confusion and rush of the government transition several did not get delivered.
Jefferson discovered this upon taking office three days later and ordered his Secretary of State, James Madison, not to deliver them. One of the individuals who did not get his appointment, William Marbury filed suit in the Supreme Court asking the court to decide if he had a right to his appointment, if so, did the law provide a remedy and could the Supreme Court, under the Judiciary Act of 1897, order Madison to deliver the appointments.
In a very clever balancing act the Court agreed Marbury had a right to the appointment and there was a remedy in the law BUT, the Judiciary Act of 1897 stated the Court had "original jurisdiction"(*) in cases like Marbury's which was in conflict with the Constitution which stated the Court did NOT have original Jurisdiction. Therefore, the judiciary Act of 1897 was unconstitutional on that fact and the Supreme Court could NOT make such an order.
It was an impressive sleight of hand producing a "fait accompli", establishing the authority of the Court to review a law by going ahead and reviewing a law. Then they used the decision of the law being unconstitutional as the basis for their final decision to refuse Marbury's request for a court order.
In reality, the issue that is really more contentious today is not the question does the Supreme Court have the ability of judicial review but more about how the Court goes about exercising that power. We will take a more detailed look at that argument in the last section on the law, Constitutional Review.
***There are several links, below, for those who would like to look into this area in more detail. Even if you don't want to research Judicial Review I would highly suggest Madison's notes. By going back to the actual notes of the "Father of the Constitution", you will get a unique and interesting insight into what those who actually wrote the Constitution believed.
The Federalist Papers
Judicial Review in the United States
The Midnight Judges Act
Marbury v. Madison
Judicial Review and the Supreme Court
James Madison's complete (day by day) notes from the 1787 Constitutional Convention
that act if it is contrary to constitutional principles."(D)
The concept that the U.S. Supreme Court had the authority to determine what the law said has been a point of disagreement since before the 1787 Constitutional Convention. In general it was supported by "Federalists" and opposed by "Anti-federalists":
In Madison's notes, from the 1787 Constitutional Convention, you will see that 11 of the 55 original representatives brought up the concept of judicial review, during the debates, and that 9 of them approved of the idea. From the discussions, proponents contend that it seemed clear that, for many of the delegates, the concept was "implied". They point to the fact that many of the delegate's home states already had provisions for judicial review, within their own state laws, prior to the 1787 Constitutional Convention.
"To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection."
(John Marshal, in the Virginia Convention)
Opponents of judicial review cite Section 2, Clause 2 of Article III of the Constitution. They contend that the Supreme Court can only consider the facts of the case and if existing law applies to the case. The Constitution does not specifically give the authority, to the Court, to determine if the law is, constitutionally, valid.
Opponents also cite the records of the 1787 Constitutional Convention and note that, although several delegates were in favor of judicial review, the Convention explicitly rejected all proposals allowing the judiciary to strike down laws or policies passed by the other two branches. Thomas Jefferson later addressed his concerns of judicial tyranny in an 1804 letter to Mrs. John Adams:
"BUT THE OPINION which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch."(*)
This issue came to a head, in 1803, in the Supreme Court Case Marbury v. Madison. Outgoing President John Adams' party (Federalists) had lost control of both the Senate & House to incoming President Thomas Jefferson's Democrat-Republican party. This left the Justice Department as the only place that Adam's party had any influence.
Fearing loss of Federalist influence Adams appointed his Secretary of State, John Marshall as the Chief Justice of the Supreme Court. Adams then got with congress to create numerous new judicial offices which he quickly packed with "Federalist" judges. This was done on March 1, 1801. Adams rushed to get all the commissions signed and distributed (later called the "Midnight Appointments). Due to the confusion and rush of the government transition several did not get delivered.
Jefferson discovered this upon taking office three days later and ordered his Secretary of State, James Madison, not to deliver them. One of the individuals who did not get his appointment, William Marbury filed suit in the Supreme Court asking the court to decide if he had a right to his appointment, if so, did the law provide a remedy and could the Supreme Court, under the Judiciary Act of 1897, order Madison to deliver the appointments.
In a very clever balancing act the Court agreed Marbury had a right to the appointment and there was a remedy in the law BUT, the Judiciary Act of 1897 stated the Court had "original jurisdiction"(*) in cases like Marbury's which was in conflict with the Constitution which stated the Court did NOT have original Jurisdiction. Therefore, the judiciary Act of 1897 was unconstitutional on that fact and the Supreme Court could NOT make such an order.
It was an impressive sleight of hand producing a "fait accompli", establishing the authority of the Court to review a law by going ahead and reviewing a law. Then they used the decision of the law being unconstitutional as the basis for their final decision to refuse Marbury's request for a court order.
In reality, the issue that is really more contentious today is not the question does the Supreme Court have the ability of judicial review but more about how the Court goes about exercising that power. We will take a more detailed look at that argument in the last section on the law, Constitutional Review.
***There are several links, below, for those who would like to look into this area in more detail. Even if you don't want to research Judicial Review I would highly suggest Madison's notes. By going back to the actual notes of the "Father of the Constitution", you will get a unique and interesting insight into what those who actually wrote the Constitution believed.
The Federalist Papers
Judicial Review in the United States
The Midnight Judges Act
Marbury v. Madison
Judicial Review and the Supreme Court
James Madison's complete (day by day) notes from the 1787 Constitutional Convention