Personal Reaction to Marbury v. Madison

The 1803 U.S. Supreme Court decision in the case Marbury v. Madison is seen by many as upholding the principle of judicial review: that courts have the ultimate power to decide if a law is valid in terms of constitutionality or under any other broad litmus test. This concept and its seeming validation by the decision of the Court have and have had extremely far-reaching consequences for the nation.

It is interesting to note that first of all, the actual issue that the Court decided in this case pertained more to jurisdictional than legislative review matters. In granting Marbury the right to a writ of mandamus, the Court, as expressed in Justice Marshall’s opinion, found that Marbury had a constitutional right to that remedy. Marshall also noted that the Judiciary Act of 1789 conflicted with Marbury’s right. Since the Court deemed Marbury’s right to be valid under constitutional law (he was a duly appointed officer of the United States), it followed that the Act was unconstitutional. The Court had thus exercised its power of judicial review, though it stopped short of enforcing a remedy for Marbury (Marbury v. Madison).

That the Court only implicitly affirmed its right to judicial review turned out not to be an issue, as the ruling was generally accepted. Thomas Jefferson, among others, disagreed with the ruling because he feared that it would give the courts (or at least the Supreme Court) too much power, in that a law duly passed by the national legislature would only ultimately become a law if it survived review and/or challenge. Of course, the opposite view could have been and was espoused, that judicial review is necessary in order to provide a check on the power of the legislative branch, particularly when laws it creates are unconstitutional. In a way, the U.S. constitution could be seen as a branch of government in itself, which the judicial branch’s task is to represent.

For better or worse, judicial review is now a firmly entrenched concept as well as practice in both American jurisprudence and American society. The reaction of the American people as a whole seems to be that a final “validity check” of laws passed (at any level) is beneficial. It is interesting to note that approval ratings of Congress have recently been rock-bottom, but the approval ratings of the Supreme Court have been much higher. This would seem to indicate that the American people trust the courts much more than they do their national legislators to “do the right thing.”

It should be noted, however, that the concept of judicial review and challenge can be abused. Most recently, Congressional Republicans mounted a massive effort to have the Supreme Court review the Affordable Care Act’s constitutionality. When the review finally took place, the Court affirmed the Act. This was a massive waste of effort and of government resources, since most constitutional scholars agreed that the Act was constitutional and would survive the challenge: the crux of Republican arguments, that Congress did not have the power to mandate private transactions (the purchase and sale of healthcare insurance), was seen to be trumped by the Commerce Clause of Article 1 of the U.S. Constitution. This was, in fact, the basis of the Court’s decision: that it was unnecessary to argue whether or not the Affordable Care Act’s mandatory provisions were unconstitutional since the Commerce Clause was an ipso facto restriction on the right of states to regulate interstate (and in many cases, intrastate) commerce.

The concept of judicial review, in this author’s opinion, is not only desirable but also vital to a functioning democracy. The concept of checks and balances must be continually tweaked in order to assure equity and fairness. Absent judicial review, the sole remaining check on the powers of the House and the Senate would be the Presidential veto power. There are, however, two built-in weaknesses here: 1) a Presidential veto can be overridden, and 2) the sitting President could be in agreement with Congress and/or the Senate and thus, willingly and happily sign into law an unconstitutional and/or unjust law. This, in fact, was the Republican ideological argument in their challenge to the Affordable Care Act: that a Democratic supermajority and an enthusiastic President had colluded to ramrod the Act through the system. While their basis may have been flawed, in this author’s opinion, their ability to challenge that and other laws should be inviolate, not unlike the concept expressed in the saying, “I disagree with what you say but will defend to the death your right to say it.”

It is certainly easy to imagine a situation wherein a dominating majority held by the same party in the House and the Senate, combined with a like-minded President, could create massive blocks of legislation that adhered to particular agendas. This was the case, in fact, during Franklin D. Roosevelt’s New Deal legislative push and also at the start of the U.S. involvement in World War II. Of course, whether or not one approves of such radical changes depends on how much one approves of the agenda being implemented (of course, one could be one of those very few people who accept that any law duly and constitutionally passed by the national legislature is valid and should be obeyed). There is not, in fact, much prior experience to go on, at least not in the recent past: even when one party has clearly been in the majority, enough members of the minority have existed to at least slow down and sometimes thwart altogether any broad-based legislative agenda by the majority.

This author’s personal view is that the recent squabbling in the House and the Senate, toxic as it may have seemed, was actually a good thing. The concept of judicial review means that a law which is likely to not survive judicial review isn’t likely to be passed in the first place. Therefore, the default setting for Congressmen and Senators is and should be compromise. This occurred after the recent government shutdown: the opposing sides finally met to hammer out a deal, even though the prevailing rhetoric might have made it seem more likely that gunbattles would break out. This author feels that without the stern eyes of the Supreme Court watching over Congress, as it were, the dueling parties might be more aggressive in forcing potentially bad legislation through, because without being subject to judicial review, that flawed legislation would have more “sticking power.” Thus, because of judicial review, the stakes are lower. There isn’t as much pressure to conform to ideology if an ideologically-biased piece of legislation won’t survive judicial scrutiny and review.

Marbury v. Madison set a precedent for the courts to be a final arbiter of a law’s or practice’s constitutionality. This has provided a refuge of last resort for those who feel they have been treated unfairly. It is this author’s opinion that out of the danger of a too-powerful legislative branch and of a too-powerful judiciary, the former danger is much greater. All laws should be subject to review by an independent body that has the right to nullify them. This system of careful checks and balances are one of the foundations in which democracy can flourish in the U.S. 

Work Cited

Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803). In “Marbury v. Madison, Case Brief Summary.” Lawnix.com. Accessed 8 Nov 2013. Web.