Judicial Review Beyond 1803 Marbury

Introduction

Nearly every student who takes a government or civics class learns about Marbury v. Madison in their studies. Decided in 1803, this landmark Supreme Court ruling established the doctrine of judicial review which allows courts to declare laws unconstitutional. The ruling, authored by Chief Justice John Marshall, gave the Supreme Court authority to interpret the constitutionality of Congressional laws.

But there is one prevailing misconception regarding Marbury v. Madison – that it cemented the Supreme Court as the powerful institution it is today. It simply did not. Even though it established the principle of judicial review, the Court itself did not immediately use its power to strike down many laws. The growth of the Court’s authority happened gradually through crises, disputes, and rulings that either expanded or limited its potential. To understand the origins of judicial review, it is critical to learn what exactly happened in Marbury v. Madison and what occurred afterward. Judicial review is not only the power to declare laws unconstitutional but also the tool to interpret the Constitution.

Marbury Was Only the Beginning

In Marbury v. Madison, William Marbury sued James Madison, the Secretary of State, for refusing to deliver him his judicial commission before Thomas Jefferson took office. The case centered on whether or not the Judicial Act of 1789 was unconstitutional, and according to justice Chief Justice John Marshall, it was. However, even though Marbury had a right to his commission, the Section of the Judiciary Act of 1789, which allowed the Court to compel state officials to deliver judicial commissions, was found to be in violation of the Constitution.¹

The ruling established the principle that it is the responsibility of the judiciary to interpret the Constitution and ensure that laws passed are not in violation. Nevertheless, despite giving the Supreme Court great power, the influence of Marbury v. Madison was not immediate. For most of the nineteenth century, the Court was quite conservative in the use of its power.

A Slowly Growing Power

The Court did not often strike down Congress’s laws, instead, it ruled on disputes regarding state laws or the meaning of the Constitution itself. Cases such as McCulloch v. Maryland and Gibbons v. Ogden showcased the Court’s interpretation of the Constitution. The former emphasized the supremacy of federal laws, while the latter expanded the meaning of the Commerce Clause.² ³ Nevertheless, even though these were not direct assertions of judicial review, they did add to the Court’s growing influence. As the economy grew and tensions rose between northern and southern states, its rulings increasingly influenced state legislatures. Moreover, as the Civil War broke out, the Court was faced with even more complex disputes regarding states’ rights. In short, its impact was not limited to just declaring laws unconstitutional. It shaped and defined the rules for the very Constitution that America swore to uphold.

Judicial Review During National Crises

The power of judicial review was especially felt during times of crisis. Perhaps the most infamous ruling was the Dred Scott decision, which stated that Congress had no authority to ban slavery in federal territories and that African Americans were not entitled to any of the rights written in the Constitution.⁴ Far from helping the Union, the decision of Chief Justice Roger Taney, the author of the ruling, further exacerbated tensions between Democrats and Republicans, eventually leading to the Civil War. Afterward, as the Union abolished slavery, the Congress passed a series of Reconstruction Amendments that protected various rights for all citizens but mainly expanded the power of the federal government over the states. Throughout the late nineteenth and twentieth centuries, the Court continued to assert its power by interpreting the Constitution. Judicial review became the tool which the Court used to interpret the Constitution, and its influence became evident in many of the disputes brought before it.

Different Perspectives

Despite giving the Supreme Court great power, Marbury v. Madison did not make it immediately popular. Even to this day, there is an ongoing dispute about how useful judicial review actually is. Judicial review proponents argue that the Constitution would be meaningless without an impartial referee who could prevent Congress and the President from passing or vetoing unreasonable laws. The Court ensures that judges can always check the decisions made by legislators, even if they do not have as much power as the latter.

On the other hand, judicial review opponents argue that courts were never meant to have this kind of power. Not only is it undemocratic to have unelected judges who can simply ignore any law they want, but it also creates issues when the Court rules on matters that should be decided by lawmakers. Thus, many scholars argue that judges should only strike down a law when they clearly violate the Constitution.

The issue of judicial review is a matter of balancing federal oversight and states’ autonomy. At the time of Marbury v. Madison, it is unclear what the intentions of the Framers were. Nevertheless, today, over two centuries later, the question of what the role of the Supreme Court should be in interpreting the Constitution still haunts Washington.

Why It Matters

Today, the Supreme Court adjudicates thousands of cases every year, and at the heart of many of them is a dispute over the Constitution. Not only does the Court rule on cases relating to campaign finance, executive orders, or gun control, but it also has to consider the rights of religious groups, minorities, and even technology companies. Every time there is a major dispute over the Constitution, there is inevitably a debate about how the Court will exercise its power to judicial review. But even in the most heated debates about the Court’s authority, it is essential to remember Marbury v. Madison and the beginning of the Court’s long journey toward becoming the guardian of the Constitution.

Perhaps we can look to Marbury v. Madison for insight as to how the Supreme Court should handle its power today. The Constitution is a living document, and so must be its interpretation. There is no doubt that judicial review is an essential part of how the system works. But as the power of the Court grows, so should the awareness of its limitations. Its power to shape the Constitution may be inevitable, but it must be tempered with humility.

Conclusion

Marbury v. Madison may be one of the most famous rulings in history, but it was only the beginning. The ruling laid the foundation for the Court to rule on some of the most pivotal disputes in history. Even today, the influence of John Marshall’s decision can be seen in debates about judicial review, states’ rights, and even in the disputes over the Court’s very existence.

The history of judicial review serves as a reminder that the law is not a set of unchanging rules but a living entity that grows alongside society. New disputes arise as the economy evolves and new social issues emerge. Moreover, as the nation grows more complex, so does the need for a referee who can ensure everyone follows the same rules.

But even as judicial review continues to be a vital part of the system, it is crucial to remember the original question that started it all – what role should unelected judges play in a democracy? This question is as relevant now as it was in 1803, and as long as the Constitution continues to be a cornerstone of the American republic, it will undoubtedly raise more disputes in the future.

1. Marbury v . Madison , 5 U.S. 137 (1803)

2. McCulloch v . Maryland , 17 U.S. 316 (1819)

3. Gibbons v . Ogden , 22 U.S. 1 (1824)

4. Dred Scott v . Sandford , 60 U.S. 393 (1857)

5. U.S . Const . Art. III.