Chapter 6: Judicial Review

• In the early nineteenth century, no facet of U.S. law distinguished American law more from civilian legal systems than the institution of judicial review.

  • Judicial review is the idea that courts have the authority to review the acts of legislatures or officials and to declare void statutes and orders that conflict with the Constitution.

  • The sense of this institution is rooted in the famous case of Marbury v. Madison.

  • The same power of review is held by the various state courts, which measure state laws and official actions under both the federal and state constitutions.

• Judicial review over legislation is distinct from the power of courts to review and overrule administrative decisions. This is also called “judicial review” in Great Britain, where the courts are not thought to have the power of judicial review over acts of Parliament.

• Since the Second World War, judicial review over legislation has become commonplace in Western democracies.

Marbury v. Madison

• The dispute arose after Thomas Jefferson won the presidency in 1800 and the Federalist Party, which had ruled since the nation’s founding, had to surrender authority to a new administration.

• In the last days of the outgoing administration, John Adams conferred commissions as federal judges of the peace on William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper.

• James Madison— the same person who was a primary architect of the Constitution in 1787—became secretary of state under Jefferson. Madison refused to deliver the commissions.

• The would-be judges sued in the U.S. Supreme Court, seeking a writ of mandamus to order James Madison, the new secretary of state, to deliver their commissions.

  • The key feature of this suit is that it was “in the original jurisdiction” of the Supreme Court, that is, not treating the Court as an appellate body but as a trial court.

• Marbury said that it’s the courts’ obligation to interpret what the Constitution says.