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Judicial Review
Digital History ID 209

Author:   John Marshall
Date:1823

Annotation:

When John Marshall (1755-1835) became the nation's fourth Chief Justice in 1801, the court lacked prestige and public respect. Presidents found it difficult to get people to serve as justices. The court was considered so insignificant that it held its sessions in a clerk's office in the basement of the Capitol. During the 34 years he served as Chief Justice, he transformed the Supreme Court into a vigorous third branch of government.

Marshall was born in the foothills of the Virginia's Blue Ridge Mountains in 1755, far from the wealthy tobacco and slave Tidewater region of the state. During the Revolution, he led a company of riflemen and spent the terrible winter of 1777 at Valley Forge. Out of his Revolutionary war experiences he became a staunch nationalist who distrusted state governments, which, he believed, had failed to support the soldiers.

Marshall delivered his first landmark opinion two years after joining the court. John Adams had appointed a loyal Federalist, William Marbury (1761?-1835), to a judgeship at the very end of his term. Although approved by the Senate, Marbury never received his letter of appointment. When Jefferson became president, Marbury demanded that the new Secretary of State, James Madison, issue the commission. Madison refused and Marbury sued, claiming that under section 13 of the Judiciary Act of 1789, the justices could issue a court order compelling Madison to give him his judgeship.

The case threatened to provoke a direct confrontation between the judiciary and the Republicans. If the Supreme Court ordered Madison to give Marbury the judgeship, the secretary of state was likely to ignore the court and Congress might limit the high court's power.

In his opinion in Marbury v. Madison, Marshall ingeniously expanded the court's power without directly provoking the Jeffersonians. He conceded Marbury's right to his appointment, but ruled that the court had no authority to order the Secretary of State to act, since the section of the Judiciary Act that gave the court the power to issue an order was unconstitutional. A landmark in American constitutional history, the decision asserted the power of federal courts to review the constitutionality of federal laws and to invalidate acts of Congress when they are found to conflict with the Constitution. This power, known as judicial review, provides the basis for the important place that the Supreme Court occupies in American life today.

In fact, the Supreme Court did not invalidate another act of Congress for half a century. But the assertion of this power proved enormously controversial. In 1823, Senator Richard M. Johnson (1781-1850) proposed that more than a simple majority of judges must agree in order to declare a law unconstitutional. Here, Justice Marshall responds.


Document:

That gentleman [Senator Richard M. Johnson], I perceive has moved a resolution requiring a concurrence of more than a majority of all the Judges of the supreme court to decide that a law is repugnant to the constitution....

If Congress should say explicitly that the courts of the Union should never enter into the enquiry concerning the constitutionality of a law, or should dismiss for want of jurisdiction, every case depending on a law deemed by the Court to be unconstitutional, could there be two opinions disputing such an act?....

When we consider the remoteness, the numbers, and the ages of the Judges, we cannot expect that the assemblage of all of them [a unanimous decision]...will be of frequent recurrence. The difficulty of the questions, and other considerations, may often divide those who do attend. To require almost unanimity is to require what cannot often happen, and consequently to disable the court from deciding constitutional questions.

A majority of the court is according to the...common understanding of mankind, as much the court, as the majority of the legislature, is the legislature; and it seems to me that a law requiring more than a majority to make a decision as much counteracts the views of the constitution as an act requiring more than a majority of the legislature to pass a law.

Source: Gilder Lehrman Institute

Additional information: John Marshall to Henry Clay

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