Who Helped Shape and Establish the Supreme Courts Power of Judicial Review

Judicial Review

The Issue:  Does the Constitution Give the Supreme Court the Power to Invalidate the
Actions of Other Branches of Regime?

Introduction
In 1800 the Federalists and their candidate, President John Adams, lost the ballot to Thomas Jefferson.  Early 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 nighttime March three, 1801, John Marshall, interim as secretary of land, affixed the official seal to the commissions for the justices of the peace.  He did non, however, 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 commission.
William Marbury The conclusion in Marbury'south case, written by Chief Justice John Marshall (the very aforementioned John Marshall who affixed the seal to Marbury's commission--talk nigh a disharmonize of interest!) established and justified the power of judicial review.  Information technology is the first case read past virtually every first-yr law educatee and is more often than not considered the greatest of all landmark cases.  Marshall strained to reach his consequence.  The plain words of Section xiii of the Judiciary Act bespeak that Marbury went to the wrong court or invoked the wrong statute (or both), but Marshall proceeded every bit if the suit were authorized by Section thirteen and so declared the statute unconstitutional on the grounds that it purported to expand the Court's original jurisdiction in violation of Article 3.  Marbury's arrange was dismissed for lack of jurisdiction.  Marshall'south decision--vivid in its conception--allowed the Court to make Jefferson a violator of civil rights without issuing an guild that the President could accept ignored.

Instance
Marbury vs. Madison (1803)

Fragment from John Marshall'south Handwritten Decision

Questions

1. Is judicial review a good idea? Should nine unelected judges be able to tell our elected representatives what they can and cannot do?
2. Are courts more probable to cake an enlightened consensus with their adherence to outdated principles or to protect the politically weak from oppressive majorities?
three.  Are judges, protected with lifetime tenure and drawn generally from the educated form, more likely to be reflective and in a higher place the passing enthusiasms that drive legislative action?
iv.  Does Marbury mean that legislators or members of the executive branch have no responsibleness to judge the constitutionality of their own deportment?
5.  Could nosotros have a workable system of regime without judicial review?

"The prime number and well-nigh necessary function of the Courtroom has been that of validation, not that of invalidation.  What a regime of limited powers needs, at the starting time 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. Blackness

Links
Marbury five. 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 cease of his life downing Madeira and rum  punch, getting down 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 like posture." --Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America (2006).

Chief Justice John Marshall

The Judiciary Act  (Section thirteen):

     The human action to establish the judicial courts of the United States authorizes the supreme court "to issue writs of mandamus, in cases warranted past the principles and usages of law, to whatever courts appointed, or persons holding office, under the authority of the United States."

Article Three of Constitution
Section. 2

     The judicial Power shall extend to all Cases, in Police and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall exist made, under their Authority;--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 of america shall be a Party;--to Controversies between two or more States;--between a Land and Citizens of some other State;--between Citizens of different States; --between Citizens of the same State claiming Lands under Grants of different States, and betwixt a State, or the Citizens thereof, and strange States, Citizens or Subjects.

      In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Political party, 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.

Original Intent & Judicial Review

The Constitution does not expressly provide for judicial review.  What should be made of this fact?  Does information technology suggest that the framers did not intend to give the courts such a power?  Non necessarily, although that is one caption for its absenteeism.  It is likewise possible that the framers thought the power of judicial review was sufficiently clear from the structure of regime that information technology demand not be expressly stated.  A tertiary possibility is that the framers didn't think that the upshot would always come up, because Congress would never pass legislation outside of its enumerated powers.

Only 11 of the 55 delegates to the Constitutional Convention, co-ordinate to Madison's notes, expressed an opinion on the desirability of judicial review.  Of those that did so, nine mostly supported the idea and two opposed. I consul, James Wilson, argued that the courts should have the even broader power to strike downward any unjust federal or country legislation.  It may as well be worth noting that over half of the xiii original states gave their own judges some ability of judicial review.

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

Many people know the starting time  Supreme Court conclusion to declare an act of Congress unconstitutional (Information technology's Marbury, of class), but few people could place the Court's starting time determination declaring Executive Branch action to be unconstitutional. Little v Barreme (1804), called the Flying Fish case, involved an order by President John Adams, issued in 1799 during our cursory war with French republic,  authorizing the Navy to seize ships bound for French ports.  The president'south order was inconsistent with an act of Congress declaring the regime to have no such potency.  Later on a Navy Helm in December 1799 seized the Danish vessel, the Flight Fish, pursuant to Adams's order , the owners of the ship sued the captain for trespass in U. South. maritime court.  On entreatment, C. J. Marshall rejected the captain's argument that he could not be sued because he was just following presidential orders.  The Court noted that commanders "deed at their own peril" when they obey invalid orders--and the president's society was outside of his powers, given the congressional activity.

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

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