Judicial Review

Marbury v. Madison


A dramatization of the events surrounding the case of Marbury v. Madison.  Part of the Equal Justice Under Law series that ran in 1977 on PBS.

William Marbury was one of the “Midnight Judges” appointed by President Adams in the waning hours of his administration, 16 Federal district judges and 42 justices of the peace, all members of Adams’ Federalist party.  The Senate, still controlled by the Federalists, approved his appointments en masse the next day on March 4, 1801, the same day Thomas Jefferson was sworn in.  Acting Secretary of State John Marshall, who was also the newly appointed Chief Justice of the Supreme Court, sent out the commissions to be delivered to the newly appointed judges and justices of the peace.  Not all could be delivered prior to Jefferson assuming office, and he ordered Levi Lincoln, Attorney General and Acting Secretary of State pending the arrival of James Madison in Washington, not to deliver the remaining commissions.

Marbury was among the justices of the peace who did not receive their commissions.  He petitioned the Supreme Court for a writ of mandamus requiring Secretary of State James Madison to give him his commission.

In a 4-0 decision John Marshall, who should have recused himself from this case due to his involvement with the commissions, gave his enemy Jefferson a short term tactical victory and a long term strategic defeat.  He ruled that Marbury had a right to the commission, but that the Supreme Court lacked the legal authority to order Madison to give him the commission.  The Judiciary Act of 1789 had given to the Supreme Court the power to order writs of mandamus.  Marshall found that Congress could not enlarge the original jurisdiction that the Constitution gave to the Supreme Court and that thus this provision in the Judiciary Act was unconstitutional and that the Court lacked the power to grant such a writ as a matter of original jurisdiction.

Thus did the Court grant itself the key power of judicial review, a power nowhere granted in the Constitution, although some members of the Constitutional Convention assumed that the federal judges would have the power to declare null and void an unconstitutional act.  Hamilton argued in Federalist 78 that the Federal courts would have the power of judicial review.

It would be over a half century before the Supreme Court would strike down another act of Congress, in the infamous case of Dred Scott v. Sanford.  However, the Court was not reluctant during that period to use judicial review to strike down state statutes that they ruled ran afoul of the Constitution. Continue reading

Quotes Suitable for Framing: Thomas Jefferson



I feel an urgency to note what I deem an error in it, the more requiring notice as your opinion is strengthened by that of many others.  You seem in pages 84. & 148. to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy.  Our judges are as honest as other men, and not more so.  they have, with others, the same passions for party, for power, and the privileges of their corps. Their maxim is ‘boni judicis est ampliare jurisdictionim,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.  The constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots.  It has more wisely made all the departments co-equal and co-sovereign within themselves.  If the legislature fails to pass laws for a census, for paying the judges & other officers of government, for establishing a militia, for naturalization, as prescribed by the constitution, or if they fail to meet in Congress, the judges cannot issue their Mandamus to them.  If the President fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the judges cannot force him.  They can issue their Mandamus or distringas to no Executive or Legislative officer to enforce the fulfillment of their official duties, any more than the President or legislature may issue orders to the judges or their officers.  Betrayed by English example, & unaware, as it should seem, of the control of our constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties.  But the constitution, in keeping the three departments distinct & independant, restrains the authority of the judges to judiciary organs, as it does the executive & legislative, to executive and legislative organs.  The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum & teum, and of criminal action, forming the great mass of the system of law, constitute their particular department.  When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.  The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is, not to take it from them, but to inform their discretion by education.  This is the true corrective of abuses of constitutional power.

Thomas Jefferson to William Charles Jarvis, September 28, 1820

The Left Suddenly Uncomfortable with Concept of Judicial Review

Don has covered President Obama’s not too subtle threat to the Court that it not dare strike down all or even part of Obamacare.  Yesterday he somewhat toned down his remarks, but still managed to step in it.

At an appearance this afternoon, a reporter asked Obama a question following up on yesterday’s comments: “Mr. President, you said yesterday that it would be ‘unprecedented’ for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court’s done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”

Obama’s answer to the question was that he expects to win in court, and “as a consequence, we’re not spending a whole bunch of time planning for contingencies.” He went on to talk at some length about the “human element”–that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend “a whole bunch of time planning for contingencies.”

But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner,right? So we’re going back to the ’30s, pre-New Deal.”

As James Taranto points out, this response is wrong on multiple levels.  The case that Obama cites in fact pre-dates the New Deal by a good thirty year.  Second, the full title of the case – Lochner vs. New York – tells us that this was a case involving state law, not federal legislation.  As Taranto further explains, there have been plenty of Supreme Court cases in which the high court struck down state laws, some dealing with economic matters.  And there of course have been plenty of cases where the Court has in fact declared federal statutes unconstitutional.  In fact two cases in the late 90s – US v. Lopez and US v. Morrison – directly implicated the commerce clause, and in both cases the Court rendered a 5-4 decision overturning acts of Congress which relied upon the commerce clause for their justification.

But other than that, I guess Obama was spot on.

The broader issue, other than Obama’s seeming ignorance of constitutional law, is that the left has suddenly decided that they don’t much care for this concept of judicial review. Continue reading

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