Theftz22
Smash Lord
This is another one of those things where I randomly feel like copy-pasting an essay I just did for school here. Political philosophy seems to get some interest around here, so without further ado:
In the landmark 1803 Supreme Court case Marbury v. Madison, William Marbury petitioned the Supreme Court to issue a writ of mandamus that would fulfill former president John Adam’s nomination for him to the position of circuit court justice. The Supreme Court justices recognized that the Judiciary Act of 1789 gave them the power to issue the writ of mandamus, however they feared appearing weak if then president Thomas Jefferson simply ignored the writ issued by the court. To avoid this dilemma, the court declared that the provision of the Judiciary Act of 1789 that gave them this power was unconstitutional. This decision formally set the precedent of the Supreme Court’s power of judicial review.
Judicial review may be defined as the process by which a law or other action of government is determined to be constitutional or unconstitutional by the judiciary. To clarify the concept of judicial review, it is necessary to note what judicial review does not include. The concept of judicial review does not entail any enforcement of the final decision of the reviewing process. A law may be deemed unconstitutional without it being forcibly stricken down. Judicial review also cannot include the executive or the legislative branches of government. Though these branches could in principle review the constitutionality of laws, that would not be judicial review.
The power of judicial review has been a matter of controversy since before even the ratification of the US constitution. Alexander Hamilton and Robert Yates quarreled over judicial review during the ratification debates under the guise of pseudonyms. The principle argument in favor of judicial review that is usually cited is an argument from the necessity of judicial review. Proponents of judicial review argue that unconstitutional acts must be declared invalid in some way. If this were not the case, then the constitution would not fundamentally be a higher law, being subject to being overturned by simple legislation. But that clashes with the entire purpose of the constitution in setting out a structured constitutional government and clearly clashes with the ideas presented in the supremacy clause. As Hamilton argued in Federalist 78, “There is no position which depends upon clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.” Given that the US Federal government derives its authority from the Constitution and the consent of the people that the Constitution implies, it follows that the government cannot make unconstitutional laws. As University of Virginia law professor **** Howard states, judicial review is about the “effort to keep a constitution's promises”.
Opponents of judicial review are likely to point out that this is only an argument for the review of the constitutionality of laws, not specifically for judicial review. Here lies the fundamental crux of the dispute. Opponents of judicial review argue that the Supreme Court is not an ideal venue for the review of the constitutionality of laws to take place. Firstly they argue that the Supreme Court cannot be checked in its power. Robert Yates writes in Anti-federalist 78 and 79, “There is no power above them that can correct their errors or control their decisions. The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits.” However, this is simply not true, the adjudications could be overridden by an amendment of the Constitution. Equally, decisions of one Supreme Court can be overturned by future courts. Judge John Gibson, in his dissent in the case Eakin v. Raub, acknowledges this point, but further argues that, “…the judiciary is not infallible; and an error by it would admit of no remedy but a more distinct expression of the public will, through the extraordinary medium of a convention; whereas, an error by the legislature admits of a remedy by an exertion of the same will, in the ordinary exercise of the right of suffrage.” However, if the legislature is left to itself to fix by law any unconstitutional laws, it will have to wait until significant new members of congress are elected, because congressmen will not overturn their own laws, believing them to be constitutional. In this way, the legislature is equal to, not better than the judiciary for ease of fixing mistakes.
Another one of Yates’ arguments against the Supreme Court justices having the power of judicial review is that, “They cannot be removed from office or suffer a diminution of their salaries, for any error in judgment [due] to want of capacity.” Why should we give nine mere men such tremendous power over the interpretation of the Constitution? As Thomas Jefferson claimed in his letter to William Charles Jarvis, “Our judges are as honest as other men, and not more so.” Yet, supporters of judicial review can challenge this claim. Justices firstly are, as Hamilton claimed, “above partisan politics”, unlike other members of government in virtue of not needing to be elected and serving life terms. Justices are also chosen based on being highly qualified and trusted for their honesty, clarity of thought, and other relevant qualities.
Ultimately, despite the complicated arguments on both sides, we believe that judiciary is the perfect branch to have the power of judicial review. It has always been believed that the creation of law is the responsibility of the legislative branch; the execution of law is the responsibility of the Executive branch, and the interpretation of law is the duty of the judicial branch. As chief justice John Marshall famously wrote in his unanimous majority opinion in Marbury v. Madison, “It is emphatically the province and duty of the Judicial Department to say what the law is.”
But is judicial review, as Virginia law professor **** Howard claims, the most important and pervasive American contribution to constitutionalism? Constitutionalism is the idea that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations. Judicial review then is clearly the most important American contribution to constitutionalism. Without judicial review, government is not legally limited in its powers, for the Constitution is not a higher law to which the legislator is held accountable. Without judicial review, any sort of law can be made, constitutional or not, without its being voided or nullified. The picture of American government without judicial review then is one that is radically opposed to the constitutionalist government which must derive its authority from observing the legal limitations of its powers. Some have believed that judicial review gives too much authority to the Supreme Court and upsets the balance of powers in government, however it is in fact the case that judicial review is an indispensible check on the power of Congress, and is indeed the only way for America to uphold the crucial distinction between a government with a constitution and a constitutional government.
In the landmark 1803 Supreme Court case Marbury v. Madison, William Marbury petitioned the Supreme Court to issue a writ of mandamus that would fulfill former president John Adam’s nomination for him to the position of circuit court justice. The Supreme Court justices recognized that the Judiciary Act of 1789 gave them the power to issue the writ of mandamus, however they feared appearing weak if then president Thomas Jefferson simply ignored the writ issued by the court. To avoid this dilemma, the court declared that the provision of the Judiciary Act of 1789 that gave them this power was unconstitutional. This decision formally set the precedent of the Supreme Court’s power of judicial review.
Judicial review may be defined as the process by which a law or other action of government is determined to be constitutional or unconstitutional by the judiciary. To clarify the concept of judicial review, it is necessary to note what judicial review does not include. The concept of judicial review does not entail any enforcement of the final decision of the reviewing process. A law may be deemed unconstitutional without it being forcibly stricken down. Judicial review also cannot include the executive or the legislative branches of government. Though these branches could in principle review the constitutionality of laws, that would not be judicial review.
The power of judicial review has been a matter of controversy since before even the ratification of the US constitution. Alexander Hamilton and Robert Yates quarreled over judicial review during the ratification debates under the guise of pseudonyms. The principle argument in favor of judicial review that is usually cited is an argument from the necessity of judicial review. Proponents of judicial review argue that unconstitutional acts must be declared invalid in some way. If this were not the case, then the constitution would not fundamentally be a higher law, being subject to being overturned by simple legislation. But that clashes with the entire purpose of the constitution in setting out a structured constitutional government and clearly clashes with the ideas presented in the supremacy clause. As Hamilton argued in Federalist 78, “There is no position which depends upon clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.” Given that the US Federal government derives its authority from the Constitution and the consent of the people that the Constitution implies, it follows that the government cannot make unconstitutional laws. As University of Virginia law professor **** Howard states, judicial review is about the “effort to keep a constitution's promises”.
Opponents of judicial review are likely to point out that this is only an argument for the review of the constitutionality of laws, not specifically for judicial review. Here lies the fundamental crux of the dispute. Opponents of judicial review argue that the Supreme Court is not an ideal venue for the review of the constitutionality of laws to take place. Firstly they argue that the Supreme Court cannot be checked in its power. Robert Yates writes in Anti-federalist 78 and 79, “There is no power above them that can correct their errors or control their decisions. The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits.” However, this is simply not true, the adjudications could be overridden by an amendment of the Constitution. Equally, decisions of one Supreme Court can be overturned by future courts. Judge John Gibson, in his dissent in the case Eakin v. Raub, acknowledges this point, but further argues that, “…the judiciary is not infallible; and an error by it would admit of no remedy but a more distinct expression of the public will, through the extraordinary medium of a convention; whereas, an error by the legislature admits of a remedy by an exertion of the same will, in the ordinary exercise of the right of suffrage.” However, if the legislature is left to itself to fix by law any unconstitutional laws, it will have to wait until significant new members of congress are elected, because congressmen will not overturn their own laws, believing them to be constitutional. In this way, the legislature is equal to, not better than the judiciary for ease of fixing mistakes.
Another one of Yates’ arguments against the Supreme Court justices having the power of judicial review is that, “They cannot be removed from office or suffer a diminution of their salaries, for any error in judgment [due] to want of capacity.” Why should we give nine mere men such tremendous power over the interpretation of the Constitution? As Thomas Jefferson claimed in his letter to William Charles Jarvis, “Our judges are as honest as other men, and not more so.” Yet, supporters of judicial review can challenge this claim. Justices firstly are, as Hamilton claimed, “above partisan politics”, unlike other members of government in virtue of not needing to be elected and serving life terms. Justices are also chosen based on being highly qualified and trusted for their honesty, clarity of thought, and other relevant qualities.
Ultimately, despite the complicated arguments on both sides, we believe that judiciary is the perfect branch to have the power of judicial review. It has always been believed that the creation of law is the responsibility of the legislative branch; the execution of law is the responsibility of the Executive branch, and the interpretation of law is the duty of the judicial branch. As chief justice John Marshall famously wrote in his unanimous majority opinion in Marbury v. Madison, “It is emphatically the province and duty of the Judicial Department to say what the law is.”
But is judicial review, as Virginia law professor **** Howard claims, the most important and pervasive American contribution to constitutionalism? Constitutionalism is the idea that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations. Judicial review then is clearly the most important American contribution to constitutionalism. Without judicial review, government is not legally limited in its powers, for the Constitution is not a higher law to which the legislator is held accountable. Without judicial review, any sort of law can be made, constitutional or not, without its being voided or nullified. The picture of American government without judicial review then is one that is radically opposed to the constitutionalist government which must derive its authority from observing the legal limitations of its powers. Some have believed that judicial review gives too much authority to the Supreme Court and upsets the balance of powers in government, however it is in fact the case that judicial review is an indispensible check on the power of Congress, and is indeed the only way for America to uphold the crucial distinction between a government with a constitution and a constitutional government.