The Constitution provides broad guidance on what the role of government is and what the rights and liberties of citizens are. Much of constitutional law is about judicial review power, based on Article Three of the Constitution and the case Marbury v. Madison (to be discussed later). The Supreme Court has the constitutional power to have the final say on what the Constitution means and can overturn past decisions and laws, even if the national public disagrees.
Q: Why should we give this much power to these un-elected officials?
Article Three of the Constitution provides for it.
Q: Are there alternatives to Supreme Court decisions such as legislation?
Yes, amending the Constitution (Article 5) or passing new laws.
Q: What functions does the Constitution perform?
The Constitution establishes the powers and constraints of the national branches of government (separation of powers), creates the balance between national and state governments by splitting sovereign power between the states and the federal government (a concept known as federalism), and establishes and protects individual rights via express guarantees of the Bill of Rights. However, it should be noted that all of the rights contained in the Bill of Rights are subject to government infringement. Whether or not the government can constitutionally infringe on the right depends its fundamental nature, the nature of the infringement, and the government interest at hand (another topic for a later post). Whenever a federal court strikes down a state law on the grounds that it violates individual rights, it involves all of the major functions of the Constitution, and applies to the entire country and all the branches of state government. The first three articles of the Constitution lay out (constitute) the powers and constraints of the three branches of Gov’t: Article 1 – Legislature, Article 2 – Executive, Article 3 – Judicial.
Government power is sub-divided between the different branches of government to constrain it. Thus, no unit or agency of government is powerful enough to impede on individual rights on it’s own. There are some exceptions, but in general a branch of government cannot operate without the support of another branch of government. For example, if Congress passes a bill, the President must sign it for it to become a law. The legislative and executive branches must act in concert. Another example of the branches acting in concert concerns the enforcement of laws. Although the judiciary issues decisions, the task of enforcing them is left to the executive branch. For instance, when the judicial branch issued Brown v. Board of Ed., which desegregated schools, it relied on local officials to enforce its decision. In addition to separating the branches, we have a Congress that is sub-divided (bi-cameral) making it more difficult for the government to do anything. Finally, as discussed above, the Supreme Court has the final say to “make” constitutional law by its opinions. This body of law is know as “case law” and has the full force of law just like any codified statute.
Our Constitution is entrenched, meaning it is very hard to change. This is for protection purposes and thus makes the rights protected by the Constitution semi-permanent (although there are many exceptions). This also leads to counter-majoritarian problems because the common notion in a democracy, is that majority rule is something positive. There are many topics addressed in studying constitutional law, such as: 1) The ongoing importance of judicial review power, because the Supreme Court can nullify both executive actions and legislative ones (sometimes referred to as judicial tyranny). Moreover, the Supreme Court has the last word on the Constitution because of the position they occupy. 2) The ongoing debate about whether judicial review power should be exercised in certain controversial contexts. 3) The primary and secondary sources of constitutional law, such as the text of the Constitution, the Framers’ intent, and precedents set by Supreme Court case law.
The primary source of constitutional law is the Constitution itself, however the Constitution does not say anything explicit about the power of judicial review. Instead, Chief Justice Marshall indirectly finds that the power of judicial review exists based on the Supreme Court’s interpretation of the Constitution.
The Factual and Political Background of Marbury v. Madison
In the election of 1800, John Adams who belonged to the Federalist Party (the group that wanted a larger central government) lost to Thomas Jefferson, and his party, the Republicans (the group that wanted smaller, state controlled governments). The Federalists, who were still in control of Congress for the lame-duck session, were angry that they lost control of the Presidency and the House of Representatives, so they decided to take control of the judiciary by amending Section 13 of the Judiciary Act of 1789. This allowed President Adams to make last minute appointments to the judicial branch. Adams appointed John Marshall (a Federalist) who was confirmed as Chief Justice, but who was still Secretary of State. Marshall was supposed to deliver these commissions for office, including one to William Marbury, but failed to do so. When Madison became the new Secretary of State he refused to deliver the commissions, thus denying Marbury his appointment. After being denied his commission, Marbury went to the Supreme Court and asked it to issue him a writ of mandamus, an order, which would force Madison to deliver his commission (The Judiciary Act of 1789 Section 13 gave the Supreme Court the power to issue such a writ to anyone holding federal office). Marshall was now the Chief Justice and had to decide whether the Supreme Court had the Constitutional power to review the case and to issue the writ.
The Issue of Judicial Review
Q: Why does Marshall do this?
Q: Why does this matter?
DISCLAIMER: The information in this article is provided for general informational purposes only and is not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied.