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It was Hamilton's point that won the argument. And the man who established it by a series of brilliant judicial rulings was Marshall. It was he who brought to the Supreme Court the ultimate power of declaring federal and state laws invalid when the court decided they were not constitutional. This process by which American courts rule on the constitutionality of legislation and refuse to enforce laws that in their judgment violate the Constitution has come to be known as judicial review. The term applies not only to the work of the Supreme Court but to the rest of the federal court system and to state supreme courts.
Judicial review was itself a product of an 1803 judicial ruling in a case that has come to be regarded as a turning point in American constitutional history – Marbury vs. Madison. The case began in a political struggle. John Adams and his Federalist party had lost the election of 1800, and Thomas Jefferson was elected president. Just before he left office, Adams signed a large number of appointments for judges and justices of the peace. These new appointees were, like himself, members of the Federalist party. What Adams was trying to do, in effect, was pack the federal judiciary with Federalists so that at least one branch of government would be in Federalist hands when Jefferson and his Democratic-Republicans took office. In the rush to get the appointment papers delivered at the last minute, the Federalists did not get them to some justices of the peace.
One appointee who had not received his appointment papers, William Marbury, sued the secretary of state, James Madison, in order to obtain them. He wanted the Supreme Court to issue an order (called a writ of mandamus) forcing the delivery. The chief justice was John Marshall, who had been secretary of state under Adams and was the man responsible for the delivery of the appointment papers in the first place. Marshall was a Federalist and no friend of Jefferson. The chief justice was in a predicament. If he signed a writ, there was little likelihood that Madison would honor it – the Supreme Court at that time did not have the great prestige it has today. On the other hand, if Marshall did not issue a writ, he would be surrendering to Jefferson and admitting that the Supreme Court was powerless.
Marshall's solution was brilliant. On the one hand, he declared that Madison was in violation of the law for refusing to deliver the papers. On the other, he ruled that the law under which the court should issue a writ of mandamus was unconstitutional. The law was the Judiciary Act of 1789, specifically Section 13, which stated that the court could issue writs to persons holding office under the authority of the United States. Marshall's reasoning was that the court did not have original jurisdiction, or authority, in such a case – only appellate, or review, jurisdiction.
Behind Marshall's reasoning was a conviction that he held to in all of his later rulings: since the Constitution is the supreme law of the land, and since it is the duty of the Supreme Court to uphold the law, two things clearly follow. First, when a law is inconsistent with the Constitution, the Constitution must be followed. Second, without judicial review, a written constitution is futile as a means of limiting abuses of power by government.
Judicial review is a power the federal courts have used only rarely since Marbury vs. Madison. By the mid-1980s, only about 100 federal laws had been declared unconstitutional, and it was more than 50 years after Marbury before such a ruling was handed down again.
The courts exercise this power only when it is necessary to decide cases and controversies. They do not give advisory opinions to either the president or the Congress before or after the passage of laws. Furthermore, the Supreme Court begins its review of a case with the assumption that a legislature did not intend to violate the Constitution when it passed a given law. Thus the burden of proof always rests on the party who questions the validity of the law.
The Supreme Court also takes a strict view of who is allowed to raise constitutional questions before it. A party must have a direct and substantial interest at stake. Otherwise everyone who did not like a particular law would go to court to have it struck down.
Through judicial review the Supreme Court has become the primary interpreter of the Constitution. It has used this power to promote the steady growth of the federal government's authority and to make the Constitution the supreme law.
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