Judicial Review v. Judicial Supremacy

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    Dr. Gutzman,

    When he wrote, “it is emphatically the province of the judiciary to say what the law is”, do you read John Marshall as saying in Marbury that the Court is the sole judge of what is constitutional, or just that it has the duty?

    On Liberty Classroom, I asked you a couple years ago some questions about judicial review, and you said this,

    “Both in the Virginia and in the New York Ratification Convention, Federalists and Antifederalists alike thought that the federal courts would exercise the power of judicial review. The only alternative would be for them to enforce laws they considered unconstitutional, which would seem to make it nonsensical for them to swear to uphold the Constitution.”

    Do you agree with McLanahan that the Founders believed that SCOTUS would not apply judicial review against the states? McLanahan seems to argue in his awesome Hamilton book that Martin v. Hunter’s Lessee and Cohen v. Virginia were wrongly decided for that reason. I understand that the Bill of Rights didn’t apply to the states until the Fourteenth Amendment began to be incorporated, but it seems to me that your point above about it being non-sensical for federal courts to swear to uphold the Constitution if they don’t have this judicial review power is also true for those two cases, as at least Article 1 Section 10, and maybe other sections also, do apply to the states.

    Could you respond to that and tell me if you think I am wrong?

    How does the fact that judicial review was expected reconcile with what you pointed out in your Madison book that the judicial veto was rejected?

    Also, my take from reading McLanahan and his citing of Madison on the power of judicial review is that he has Madison saying that the judicial power was intended to be procedural, not substantive. Perhaps I am misunderstanding him, but if I am not, how does that reconcile with your statement above?

    Finally, where can one find evidence from the conventions that the delegates intended for each branch to decide on the constitutionality of an action, as Jefferson, Jackson and Lincoln suggested? If this is the case, doesn’t that make both the executive and judicial branches into legislative branches and destroy the separation of powers?

    As always, I would appreciate your floodlight explanations.



    Prof. McClanahan and I agree that both Martin and Cohens were wrongly decided; that’s not the same as saying the Supreme Court didn’t have jurisdiction to decide Cohens–with which McClanahan may or may not agree. Judicial review doesn’t equal judicial supremacy, as Jefferson explained in his September 6, 1819 letter to Chief Judge Spencer Roane of the Virginia Court of Appeals. No, I don’t think Marshall is saying the other two branches can ignore the Constitution, which is for the Supreme Court alone to interpret. Again, see Jefferson to Roane.

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