Origins of the Power of Judicial Review – The power of the courts to review legislation to

determine if it’s consistent with the Constitution.

Art III, § 2, Cl. 2 – “The judicial power shall extend to all cases, . . . arising under this Constitution. .
. . In all Cases [where state is a party or affecting foreign officials], the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make."

Marbury v. Madison (1803) – power of judicial review to declare acts of Congress uncon'l.
 Background: The incumbent federal Adams lost Pres election of 1800 to Jefferson. Right be4
end of his term, Adams appoints a bunch of federalist judges. Marbury’s commission is signed
and sealed, but it’s never delivered (by Madison, secretary of state). Once he took office,
Jefferson tells Madison not to deliver the commission. Marbury sought a writ of mandamus to
get the commission delivered. [Took a long time to hear the case b/c Congress suspended the
Supreme Court for a term – Art III, Congress can regulate Judiciary (but not tell them how to
decide)].
 1st Issue: Is Marbury entitled to the commission? Marshall says yes, the Pres granted it to him
via an act of Congress (Organic Act). His right was vested once it was signed and sealed.
○ Note: but it was never delivered – Prob Marshall does this so he can get to
Judicial Review.
nd
 2 Issue: Does Marbury have a remedy at law available? Marshall says yes, the essence of
civil liberty is that there is redress to every denial of a legal right.
○ Prof says not always true – but again Marshall prob says this just to get to
judicial review.
 3rd Issue: Is Marbury entitled to the remedy he seeks? – Yes.
• Nature of the writ of mandamus – an order to compel a lower ct or govt official to do
his duty. Madison has a duty to deliver the commission. Since it was signed & sealed,
it’s vested, so there’s a legal duty here. Therefore writ of mandamus is a proper
remedy.
• Note: Pres doesn’t like this – ct is undermining authority of executive by telling them
what to do. But if Marshall decided otherwise, would be undermining authority of
Congress. Either way, still undermining.
 4th Issue: What’s the source of the court’s power to issue the writ of mandamus?
• The Judiciary Act 1789, § 13: “"The Supreme Court shall also have appellate
jurisdiction [from lower & state courts], in the cases herein after provided for; and
shall have power to issue . . . writs of mandamus . . . to any courts appointed, or
persons holding office, under the authority of the United States."
○ So, Judiciary Act is interpreted to mean that since Marbury is person holding
office under authority of U.S., this give SC power to issue the writ. Interpreted
to mean that this is a source of original jurisdiction.
○ But there are other possible ways it can be interpreted:
 “Appellate jurisdiction”- so court has jurisdiction to hear a writ under
appeal.
 This is an available remedy only when the SC would otherwise have
jurisdiction.
 • If read this way, court would need to still have original
jurisdiction. But the SC doesn’t have original jurisdiction b/c it’s
only where state is a party or in cases against foreign officials.
• But Marshall then says the Judiciary Act is unconstitutional b/c it goes against Art III,
§ 2 of the Constitution, therefore, there is actually no jurisdiction per Art III, § 2.
○ Art III, § 2, cl. 2 - Lists the issues for which SC would have original
jurisdiction. All other cases, SC has appellate jurisdiction. Writ of mandamus
not listed there.
○ But it also says “with such exception, and under such regulations as the
Congress shall make.” So, Congress added this original jurisdiction in the
Judiciary Act.
 Marshall says that Congress can't do this. If drafters had intended that
Congress could add original jurisdiction of SC later, they wouldn’t have
listed specific instances of original jurisdiction. Marshall is interpreting
it as setting a ceiling to the SC's original jurisdiction. An affirmative
grant implies a negative of what’s not granted.
 However, prof points out differing interpretations:
• The list of original jurisdiction written out to set a floor (min) of
when SC has original jurisdiction – guarantees these powers.
Prob here is it may allow Congress to give SC too much work to
do – SC becomes overwhelmed & may impinge on SC's power
& destroy its authority.
• Distribution for court to follow, but Congress can change it.
• Note: Judiciary Act written by drafters of the Constitution, so it’s most likely not
unconstitutional. More likely that Marshall read the Judiciary Act wrong.
th
 5 Issue: Can the court declare an act of Congress unconstitutional? So Marshall explains
judicial review. So the question is WHO DECIDES whether an act of Congress is
unconstitutional. Marshall makes six arguments in support of judicial review:
• Written Constitution – It’s important that we have a written constitution. What’s the
point of having it if it couldn’t be enforced? Therefore, SC has power of judicial
review to enforce it.
○ Prof Criticism – ok, but why the court & not another branch? WHO
DECIDES? It’s not clear that framers intended for court to have absolute power
of judicial review b/c they gave legislature power to take away court’s
jurisdiction over certain cases.
 Still, if legislature had this power, may be problem b/c self-regulation.
But the check would be the general public; we can vote ppl out
(accountability).
• Judicial Role or duty - (textual argument) Court has a role or duty to say what the law
is, & when laws conflict to determine which law governs.
○ Prof Criticism – Marshall is lumping the 2 roles of the court together as the
same thing. Just b/c there’s power of JR to act as CL court doesn’t mean there
is JR to act as a Const’l court. Roles:
 Interpreting the law (acting like CL courts); fill in statutory gaps. Here,
Leg can just go back & make changes (by maj vote) to the law if they
don’t agree.
  Saying what has legitimacy as law (acting like a Const’l court). Here,
Leg can’t just change the law, they have to make a const’l change
(amendment)
• Checks & Balances / Separation of powers – (structural argument) if no judicial
review, the legislature would police itself - & this means nothing, b/c they do
whatever, & just decide it’s const’l. Power must be checked.
○ Prof Criticism – But here the court is doing the same thing. Court deciding how
much their power extends, and so is policing itself. So also begs question, who
decides?
• Grant of jurisdiction to Judiciary in Art III – (textual argument) Art III, § 2 grants the
court power of judicial review to hear cases arising under the Constitution. So there’s
an implicit grant of jurisdiction, b/c the grant would be meaningless if court couldn’t
examine all parts of the constitution when reviewing one part of it.
○ Prof Criticism – Question of statutory interpretation. Art III could also be
viewed as a simple grant of jurisdiction - courts can examine the Constitution,
but other branches are not precluded from doing so. If Congress passes a law,
then means Congress thinks it’s constitutional. Doesn’t mean judiciary has
power over another branch to tell it what to do.
• Judicial Oath to the Constitution (textual argument) – Art VI, § 3 requires judges to
take an oath to uphold the constitution. So they must rule on the constitution, b/c
they’d be disobeying the oath if they ignored it.
○ Prof Criticism – Every federal employee takes that oath – doesn’t mean they
have this power. So this cannot be the source of the power.
• Supremacy Clause – Art VI, § 2 requires that an act of Congress be made in pursuance
with the Constitution, b/c it is the supreme law of the land. So if inconsistent with
Constitution, then legislation is void.
○ Criticism – Yes, but WHO DECIDES? Still doesn’t answer why the judiciary
gets to.
 The holding in Marbury can be interpreted broadly or narrowly:
• Most broad – SC has power to rule on constitutionality of everyone – State & federal
courts, legislature, executive, individuals.
• Broad – SC has power to rule on constitutionality of acts of other branches of federal
gov’t
• Narrow – SC has power to rule on constitutionality of acts of Congress
• Most Narrow – SC has power to rule on constitutionality of acts of Congress only
when it pertains to powers of the judiciary
• –Marbury understood to give a limited power of JR (most narrow). Then Dred Scott
broadened the scope of JR, interpreting Marbury to give the narrow power (all acts of
Congress). But since that case supported slaver, it’s not cited, and Marbury instead is
cited. Today, we have the “most broad” interpretation.