Judicial Review

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    If the framers thought that the Supreme Court should have judiciary power over federal law, meaning that it could interpret Federal law and make sure there were no procedural errors, how was that to be done without expounding on the Constitution?

    Cases are often gray, so how could the court not make statements about the Constitution when sorting out legal controversies?

    Did they intend for the Court to operate under the presumption that all the acts of Congress were Constitutional, so as not to get into the business of twisting the Constitution?

    If the judicial power was to extend in all cases to law and equity arising “under the Constitution”, as Article III says, how does that coincide with the idea that Madison v. Marbury was a power grab?

    Thank you


    Who said Marbury v. Madison was a power grab? Not I.


    I was thinking primarily of Jefferson’s statements that ““You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” and the idea that each branch can judge the constitutionality of something.

    That and Mr. McLanahan’s statements that, according to my perhaps mistaken interpretation, the court was supposed to judge simply procedural issues, not interpret the Constitution.

    It also seems to me that Judge Napolitano is arguing that Marbury was a usurpation in Constitution in Exile.


    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.

    Napolitano, a friend of Scalia, is echoing Scalia’s ridiculous “textualist” argument that the judges “made … up” the power of judicial review. Being a “textualist” means ignoring the ratification conventions, which is ridiculous for a self-styled “originalist” to do.

    Judicial review doesn’t necessarily make the judges “ultimate arbiters” of anything. The other branches, the voters, et al., also have to decide what the Constitution means when they exercise their various powers. Jefferson’s point was that judges only decide the cases before them, which is the alternative to judicial supremacy.


    Professor Gutzman, are you saying that it was always intended through Article 3 that the Supreme Court makes decisions on whether a piece of federal legislation is constitutional, but that it was not intended that this bind any other branch of the federal government, or the states? Thus the Supreme Court would be issuing only advisory, as opposed to enforceable, opinions?


    Any court in considering how to apply a given statute must of course consider constitutional objections to it, whether they are raised by a party or the court comes to have questions unaided. As Presidents Jefferson, Jackson, and Lincoln all expressly noted–Jefferson in connection with the Sedition Acts (which federal courts had happily and energetically enforced, before Jefferson pardoned all of the convicts and refunded them their money), Jackson in his Bank Bill Veto Message (in which he contradicted McCulloch v. Maryland), and Lincoln in connection with Dred Scott, presidents must of course decide for themselves what the Constitution means, and they will from time to time treat it as having a different meaning from what a federal court, even the Supreme Court, has said. States too.

    The Supreme Court’s precedents are to be followed by other federal courts, which the Constitution calls “inferior [to the Supreme Court] courts.” Sometimes they undertake to correct the Supreme Court, which the Court typically doesn’t receive well. States too. All of these officials are sworn to uphold the US Constitution, not to uphold opinions of the US Supreme Court–as Jackson said in the aforementioned veto message.


    So it seems then that if someone is going to complain about the unintended, modern power of the Supreme Court, they should direct their ire not at the Supreme Court, but at those who choose to follow its decisions when they are not bound to do so. If the federal executive, federal legislature, and state governments have decided to be bound by Supreme Court decisions, that’s not the Supreme Court’s fault. Just like a call to states to grow a spine and exercise true federalism, one could say that all branches should grow spines and exercise their true constitutional obligations. I doubt Ruth Bader Ginsburg is going to show up with a shotgun to enforce Supreme Court decisions.

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