Judicial review
The Constitution says "the judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish." The Constitution defines the kinds of cases to which the "judicial power" applies, including cases arising under the Constitution, laws, and treaties of the United States. Beyond hearing and deciding such cases, however, the Constitution does not define what the "judicial power" is.
Constitutionality of judicial review
Scholars have debated whether the federal judicial power includes the power of judicial review. Judicial review means reviewing congressional laws (and executive action) to determine if they are valid under the Constitution.
The Constitution does not specifically give the federal judiciary the power of judicial review. Instead, the Supremacy Clause of Article VI says, "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."
Some scholars believe that only the judicial branch can determine, on a case-by-case basis, whether congressional laws have been "made in pursuance" of, or in carrying out, the Constitution. Others believe that Congress and the president are responsible for deciding if their own actions are constitutional. Still others believe that the people of America, who elect Congress and, indirectly, the president, are ultimately responsible for deciding what is lawful under the Constitution and what is not.
Although the Constitution is unclear on judicial review, many of the men who wrote it in 1787 generally believed the judiciary would have this power. Foremost among them was Alexander Hamilton (1757–1804), who in 1789 became the first secretary of the treasury under President George Washington (1732–1799; served 1789–97). According to Joan Biskupic and Elder Witt in The Supreme Court & the Powers of the American Government, Hamilton wrote in No. 78 of The Federalist Papers in 1788:
Limitations [on Congress] . . . can be preserved in 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. . . . No legislative act, therefore, contrary to the Constitution, can be valid. . . . 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 [determine] its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable [conflicting] 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 [in Congress].
Marbury v. Madison
In 1803, fifteen years after adoption of the Constitution, the Supreme Court officially answered the question of whether the federal judiciary has the power of judicial review. It did so in the famous case of Marbury v. Madison. The case was part of a political battle between Federalists, led by Chief Justice John Marshall (1755–1835), and Democratic-Republicans, led by President Thomas Jefferson (1743–1826; served 1801–9) and Secretary of State James Madison (1751–1836).
In the election of 1800, the Federalists lost control of both Congress and the presidency to the Democratic-Republicans. Before leaving office, Congress created sixteen new federal judgeships and authorized Federalist president John Adams (1735–1826; served 1797–1801) to name as many justices of the peace in the District of Columbia as he wished. Adams, in turn, named Federalists to fill the sixteen new federal judgeships plus forty-two justice of the peace positions. He also appointed Marshall, then serving as his secretary of state, to be the chief justice of the Supreme Court. (The chief justice is the head of the Supreme Court.)
One of Marshall's last duties before leaving office as secretary of state was to deliver the commissions, or official orders, to the people appointed to be justices of the peace in the District of Columbia. Somehow he failed to deliver four of them, including one to an attorney named William Marbury. When President Jefferson took office in March 1801, Marbury asked Jefferson's secretary of state, Madison, to give him the commission. Under orders from Jefferson, Madison refused to give the commission to Marbury.
Marbury decided to sue Madison in the Supreme Court. The Judiciary Act of 1789 gave the Supreme Court power to issue writs of mandamus. A writ of mandamus is an official court order for a government official to do his or her job. Marbury asked the Supreme Court to issue a writ of mandamus to Madison, ordering him to deliver the commission to Marbury.
Marshall, the very man who had failed to deliver the commission in the first place, helped to decide the case in 1803 as chief justice of the Supreme Court. Writing the Court's official opinion in the case, Marshall agreed that Marbury should get the commission. He also agreed that a writ of mandamus was the proper tool for forcing Madison to deliver the commission. Marshall surprised everyone, however, by concluding that the Supreme Court did not have the power to issue a writ of mandamus. His reason was that the Judiciary Act of 1789, which gave the Supreme Court power to issue the writ, violated the Constitution. The Constitution did not give the Supreme Court power to issue writs in such cases, so a congressional law trying to give the Supreme Court that power was in violation of the Constitution.
In the course of his written opinion, Marshall announced that the judiciary has the power of judicial review:
It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant [offensive] to it. . . . It is, emphatically, the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound [explain] and interpret that rule. If two laws conflict with each other, the courts must decide on the operations of each. . . . If then the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
The case was a political victory for Marshall and the Federalists. Although he declared the Court incapable of giving Marbury the commission, Marshall assumed the greater power to review, in cases before the Court, laws passed by the Democratic-Republican controlled Congress.
Marshall's opinion on judicial review still stands, and federal courts routinely review congressional laws in the cases before them. Americans would probably have to enact a constitutional amendment to strip the federal judiciary of the power of judicial review.
As of 2005, the Supreme Court has struck down only around 125 federal laws and executive orders as unconstitutional. The mere existence of judicial review, however, can affect the laws that Congress passes.