How Would the Government Be Different Without Judicial Review

Judicial Review

The Result:  Does the Constitution Give the Supreme Court the Ability to Invalidate the
Actions of Other Branches of Government?

Introduction
In 1800 the Federalists and their candidate, President John Adams, lost the election to Thomas Jefferson.  Early on in 1801 the lame-duck Federalist Congress enacted a controversial Judiciary Act that created 58 new judgeships, including 42 justiceships of the peace, for Adams to appoint.  Jefferson complained that the Federalists "have retired into the judiciary as a stronghold."  On the night March three, 1801, John Marshall, interim as secretarial assistant of state, affixed the official seal to the commissions for the justices of the peace.  He did not, notwithstanding, deliver the commissions.  The next day, after Thomas Jefferson was inaugurated, he directed the new secretary of state, James Madison, to withhold delivery of 17 of the 42 commissions, including that of William Marbury.  William Marbury sued for a writ of mandamus to require Madison to hand over his committee.
William Marbury The decision in Marbury'southward instance, written by Chief Justice John Marshall (the very same John Marshall who affixed the seal to Marbury'southward commission--talk about a conflict of interest!) established and justified the ability of judicial review.  Information technology is the kickoff case read past near every first-year law student and is generally considered the greatest of all landmark cases.  Marshall strained to achieve his result.  The plain words of Department xiii of the Judiciary Act bespeak that Marbury went to the wrong courtroom or invoked the wrong statute (or both), merely Marshall proceeded as if the conform were authorized past Section 13 and then declared the statute unconstitutional on the grounds that it purported to expand the Courtroom'due south original jurisdiction in violation of Commodity 3.  Marbury'due south suit was dismissed for lack of jurisdiction.  Marshall's determination--brilliant in its conception--allowed the Court to brand Jefferson a violator of civil rights without issuing an social club that the President could have ignored.

Example
Marbury vs. Madison (1803)

Fragment from John Marshall's Handwritten Conclusion

Questions

1. Is judicial review a good idea? Should nine unelected judges exist able to tell our elected representatives what they can and cannot practice?
2. Are courts more likely to block an enlightened consensus with their adherence to outdated principles or to protect the politically weak from oppressive majorities?
3.  Are judges, protected with lifetime tenure and drawn generally from the educated class, more likely to be reflective and to a higher place the passing enthusiasms that drive legislative action?
4.  Does Marbury hateful that legislators or members of the executive branch have no responsibility to judge the constitutionality of their own actions?
5.  Could we accept a workable system of regime without judicial review?

"The prime and most necessary role of the Courtroom has been that of validation, non that of invalidation.  What a authorities of limited powers needs, at the showtime and forever, is some means of satisfying the people that it has taken all steps humanly possible to stay within its powers."

--Professor Charles L. Black

Links
Marbury v. Madison Background & Players
(James Madison Univ.)

Judicial Review (Wikipedia) 1800-1809 American Events Timeline

John Marshall - Definer of a Nation

1803 Petition, Debate & Vote of Wm. Marbury & Others
(from Register of Congress)

Pitching quoits

Q uoits, Anyone?: The Personality Differences of John Marshall and Thomas Jefferson "[John Marshall] was proud of his skills in pitching quoits--a game involving a kind of round horseshoe--and could be observed at the Quoits Club in Richmond toward the end of his life downing Madeira and rum  punch, getting downward on his easily and knees earnestly measuring the distance between his quoit and those of his opponents, and and then shouting in unaffected happiness when he won.  It is hard to imagine the withdrawn and aristocratic Jefferson in a similar posture." --Jeffrey Rosen, The Supreme Courtroom: The Personalities and Rivalries That Defined America (2006).

Master Justice John Marshall

The Judiciary Act  (Department 13):

     The act to establish the judicial courts of the United States authorizes the supreme court "to event writs of mandamus, in cases warranted by the principles and usages of constabulary, to whatsoever courts appointed, or persons holding office, under the authority of the United States."

Commodity 3 of Constitution
Section. ii

     The judicial Power shall extend to all Cases, in Police force and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Say-so;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall exist a Political party;--to Controversies between two or more than States;--between a State and Citizens of another State;--betwixt Citizens of dissimilar States; --between Citizens of the same Land challenge Lands nether Grants of dissimilar States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

      In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall exist Political party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall take appellate Jurisdiction, both equally to Constabulary and Fact, with such Exceptions, and under such Regulations equally the Congress shall make.

Original Intent & Judicial Review

The Constitution does not expressly provide for judicial review.  What should exist made of this fact?  Does information technology suggest that the framers did not intend to requite the courts such a power?  Not necessarily, although that is one explanation for its absence.  It is likewise possible that the framers thought the ability of judicial review was sufficiently clear from the structure of government that information technology need non be expressly stated.  A third possibility is that the framers didn't recall that the effect would ever come up, because Congress would never pass legislation exterior of its enumerated powers.

Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review.  Of those that did and so, nine generally supported the thought and two opposed. One delegate, James Wilson, argued that the courts should have the even broader ability to strike down any unjust federal or state legislation.  It may also exist worth noting that over half of the 13 original states gave their own judges some power of judicial review.

Footnote: The Flying Fish Instance Two Views on Seizures John Adams T. Jefferson Vice President Thomas Jefferson opposed the 1799 club of President  Adams assuasive the seizing of ships.

Many people know the first  Supreme Court determination to declare an human action of Congress unconstitutional (Information technology'southward Marbury, of form), but few people could identify the Court's first decision declaring Executive Co-operative activeness to be unconstitutional. Little 5 Barreme (1804), called the Flying Fish case, involved an order past President John Adams, issued in 1799 during our brief war with France,  authorizing the Navy to seize ships jump for French ports.  The president's social club was inconsistent with an act of Congress declaring the government to accept no such authorisation.  After a Navy Captain in December 1799 seized the Danish vessel, the Flight Fish, pursuant to Adams's society , the owners of the ship sued the helm for trespass in U. S. maritime court.  On appeal, C. J. Marshall rejected the captain'south statement that he could not exist sued considering he was just post-obit presidential orders.  The Court noted that commanders "act at their own peril" when they obey invalid orders--and the president's order was exterior of his powers, given the congressional action.

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Source: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm

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