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Background

Marbury V. Madison established the practice of Judicial review in the United States, though the principle existed before the case. This gave the Supreme Court power to invalidate laws, or portions of laws, that it found unconstitutional. By the same token, it limited the Supreme Court to a court of appeals with respect to writs of mandamus and not as a court with original jurisdiction on the matter.

Marbury v. Madison, like any other Supreme Court case, is subject to being overturned either by the Supreme Court, or by amendment to the constitution. If this were to happen, that means the Judicial Act of 1789 regains full force of the law, and presumably the power to issue writs of Mandamus with original jurisdiction. But there is another part of the case that led me to ask this question...

Question

If Marbury v Madison was overturned, thereby reinstating in full the Judicial Act of 1789, does this also mean that the Surpeme Court loses the power of Judicial review? And, if so, does this loss of power apply to all cases where it has been applied?

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Marbury V. Madison did not establish judicial review. It was simply the first case where that power was used. It was clearly spelled out in The Federalist #78 that this power would exist in the new constitution, and those who voted to ratify it understood, or should have understood, that it would exist.

All that Marbury V. Madison decided was that the Supreme court did not have original jurisdiction to issue Writs of Mandamus That could be overturned, or the constitution could be amended to grant such jurisdiction to SCOTUS. That would not have any major effects on the US judicial system as far as I can tell.

I suppose that the constitution could be amended so as to deny the power of judicial review to the courts. But I think the resulting system would be potentially unstable, and this would require a far more fundamental change than simply "overruling Marbury V. Madison"

As #78 of The Federalist said:

By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. (emphasis added)

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . .

[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . .

[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

  • But where is the counterforce "coupled with a presumption that other branches of government will ignore unconstitutional judicial decisions" – Joshua Aug 21 at 17:49
  • @Joshua I didn't say that. If The Federalist said that, i missed it.There is an argument that other branches should ignore judicial decisions that obviously go against the Constitution, but there is a conrtary argument that what scotus says defiens what the constitution means, and if it seems obviously wrong, amendment is the right path. – David Siegel Aug 21 at 22:07
  • The Federalist #78 said that. The Dread Scott decision was so blatently bad that it shouldn't have taken a war to cast it down. – Joshua Aug 21 at 22:51

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