Judicial ReviewTHE SUPREME COURT UNDER THIS CONSTITUTION WOULD BE EXALTED ABOVE ALL OTHER POWER IN THE GOVERNMENT, AND SUBJECT TO NO CONTROL…THEY ARE TO

BE RENDERED TOTALLY INDEPENDENT, BOTH OF THE PEOPLE AND THE LEGISLATURE, BOTH WITH RESPECT TO THEIR OFFICES AND SALARIES. NO ERRORS THEY MAY COMMIT CAN BE CORRECTED BY ANY POWER ABOVE THEM, IF ANY SUCH POWER THERE BE, NOR CAN THEY BE REMOVED FROM OFFICE FOR MAKING EVER

SO MANY ERRONEOUS ADJUDICATIONS—BRUTUS, ANTI-FEDERALIST 78

THE LIFE OF THE LAW HAS NOT BEEN LOGIC, IT HAS BEEN EXPERIENCE.… THE LAW EMBODIES THE STORY OF A NATION'S DEVELOPMENT THROUGH MANY CENTURIES,

AND IT CANNOT BE DEALT WITH AS IF IT CONTAINED ONLY THE AXIOMS AND COROLLARIES OF A BOOK OF MATHEMATICS—OLIVER WENDELL HOLMES JR.

The Powers of the Judiciary• Article III of the Constitution states:• The judicial power of the United States, shall be vested in one Supreme Court,

and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

• Article III leaves many questions unanswered regarding the power of the judiciary:• How many judges will serve on the court?• How will the court, including lower courts, be structured?• What is the relationship between the court and the legislative/executive

branches?• What power does the court have to interpret the laws set by congress?

Origins of Judicial Review

• Precursors of Judicial Review can be found in Privy Council and State Constitutions, and is even assumed in the early case-law of the republic, such as Virginia’s Case of the Prisoners.

• Although the constitution is largely silent on the court’s most important function—the power to interpret laws— there are two early sources that establish and reaffirm the power of judicial review:• Federalist 78• Marbury v. Madison

Federalist 78• The interpretation of the laws is the

proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents—Alexander Hamilton

“The least dangerous branch…”

Marbury V. Madison• Context: arose out of the great tensions that

surrounded the elections of 1800.• Federalists had lost poorly at both the national

and state level. • Lame-duck Federalists passed the Judiciary Act

of 1801, creating 16 new federal judgeships with lifetime tenure as well as additional legislation that created 42 justices of the peace with fixed terms in office in the District of Columbia.• William Marbury was one of the justices of the

peace.

Marbury V. Madison Cont.• Responsibility for delivering the commissions to the new justices belonged

to the Secretary of State, John Marshall, but Marshall did not have adequate time to do so. So he left it to his successor, James Madison, to deliver.

• When Jefferson took office, he forbade Madison from delivering the commissions.

• Marbury brought his suit to the Supreme Court under its original jurisdiction. He asked the Court to issue a writ of mandamus (order to perform an official duty) commanding delivery of his commission.

• Court: 6 Federalists; John Marshall was now Chief Justice• BUT partisan power struggle: Democratic-Republican Congress repealed

the Judiciary Act of 1801, abolishing the federal judgeships.• Cancelled the 1802 Court term.• Madison sent no lawyer when Marbury v. Madison was being argued.

Marbury V. Madison Cont.• Marshall feared that any ruling

would undermine the power and legitimacy of the Supreme Court: • What if they issued the writ of

mandamus and Sec. Madison ignored it?

• The weakness of the Court would be revealed.

• But what if the Court did not issue the writ of mandamus, everyone would assume that it had simply caved to pressure.

• This would also weaken the Court.

Marbury V. Madison—The Decision• Marbury had a right to his commission.• Law offered the remedy through the writ of mandamus.• However, the legislative provision in the Judiciary Act of 1789 that gave

the Court this authority was unconstitutional because it expanded the Court’s original jurisdiction in violation of Article III, Sect. 2, para. 2.

• Marshall stated that the Court’s original jurisdiction could only be expanded through Constitutional amendment.• The Court, therefore, lacked the jurisdiction to issue the writ.

• The power of judicial review by the Supreme Court has been debated. Generally, the debate today focuses on when and how often the Court should use this power, not whether they have it.

Marbury V. Madison—Simplified

The Significance of Judicial Review• Confirms the Framers’ intention to

create three separate and independent branches of government

• Judicial review established the court’s unique ability to interpret the Constitution

• The interpretation may change with the times, as the court makes decisions on a case-by-case basis

The Continuing Controversy of Judicial Review• Despite having been reaffirmed by

Marbury V. Madison, many continue to question the power of the judiciary to interpret the law.

• Many of the questions surrounding Judicial Review arise from controversial court cases (e.g. Dred Scott; Lochner; Brown; Roe; Wesberry; Heller; Citizens United; Strieff)

• In each of these cases, opponents of the court’s decision felt that the justices had gone too far, practicing what’s called “Judicial Activism”—that is, going beyond mere interpretation of the law to the creation of new law. Three theories of interpretation exist: Originalism; Literalism; Modernism

The Final Say?• Many of the fears surrounding

Judicial Activism rest on the assumption that the court has the final say in constitutional matters.

• However, the courts—like all branches of government—works within a system of checks and balances, including statues and constitutional amendments. Examples:• RFRA addressing Smith v. Oregon• Amendments: 11th; 13th; 14th; 16th;

19th; 24th; 26th

Questions for Consideration:• Consider the importance of Judicial Review within the

context of European history and colonial rule. Why was an independent judiciary—including the power to interpret the law—so important to the founders?

• What, exactly, are the checks and balances placed on the court’s power to interpret the law? What historical examples exist to support the notion that the court does not have the final say?

• Compare the differences between the theories of interpretation (Originalism; Literalism; Modernism). Which do you feel is the most effective for interpreting the law?