Did the Framers Intend for the Supreme Court to Have the Power of Judicial Review

Judicial Review

The Result:  Does the Constitution Give the Supreme Court the Power to Invalidate the
Actions of Other Branches of Government?

Introduction
In 1800 the Federalists and their candidate, President John Adams, lost the election to Thomas Jefferson.  Early on in 1801 the lame-duck Federalist Congress enacted a controversial Judiciary Human action that created 58 new judgeships, including 42 justiceships of the peace, for Adams to appoint.  Jefferson complained that the Federalists "accept retired into the judiciary as a stronghold."  On the night March 3, 1801, John Marshall, acting as secretary of state, affixed the official seal to the commissions for the justices of the peace.  He did not, still, deliver the commissions.  The adjacent day, subsequently Thomas Jefferson was inaugurated, he directed the new secretary of country, James Madison, to withhold delivery of 17 of the 42 commissions, including that of William Marbury.  William Marbury sued for a writ of mandamus to require Madison to mitt over his committee.
William Marbury The decision in Marbury's case, written by Chief Justice John Marshall (the very same John Marshall who affixed the seal to Marbury'south commission--talk about a disharmonize of interest!) established and justified the ability of judicial review.  It is the first case read by virtually every outset-year police student and is generally considered the greatest of all landmark cases.  Marshall strained to reach his consequence.  The plain words of Section 13 of the Judiciary Act signal that Marbury went to the wrong court or invoked the wrong statute (or both), but Marshall proceeded every bit if the suit were authorized by Section xiii and and then alleged the statute unconstitutional on the grounds that it purported to expand the Court'south original jurisdiction in violation of Article Iii.  Marbury'due south suit was dismissed for lack of jurisdiction.  Marshall's conclusion--brilliant in its conception--allowed the Court to brand Jefferson a violator of civil rights without issuing an order that the President could have ignored.

Case
Marbury vs. Madison (1803)

Fragment from John Marshall's Handwritten Decision

Questions

one. Is judicial review a good idea? Should ix unelected judges be able to tell our elected representatives what they can and cannot practice?
2. Are courts more than probable to cake an aware consensus with their adherence to outdated principles or to protect the politically weak from oppressive majorities?
3.  Are judges, protected with lifetime tenure and drawn mostly from the educated class, more than likely to be reflective and above the passing enthusiasms that drive legislative action?
four.  Does Marbury mean that legislators or members of the executive branch have no responsibleness to gauge the constitutionality of their own actions?
5.  Could we have a workable system of authorities without judicial review?

"The prime and most necessary function of the Court has been that of validation, non that of invalidation.  What a government of express powers needs, at the beginning and forever, is some means of satisfying the people that information technology has taken all steps humanly possible to stay within its powers."

--Professor Charles Fifty. Black

Links
Marbury five. Madison Background & Players
(James Madison Univ.)

Judicial Review (Wikipedia) 1800-1809 American Events Timeline

John Marshall - Definer of a Nation

1803 Petition, Fence & Vote of Wm. Marbury & Others
(from Annals of Congress)

Pitching quoits

Q uoits, Anyone?: The Personality Differences of John Marshall and Thomas Jefferson "[John Marshall] was proud of his skills in pitching quoits--a game involving a kind of round horseshoe--and could be observed at the Quoits Club in Richmond toward the cease of his life downing Madeira and rum  punch, getting down on his hands and knees earnestly measuring the distance between his quoit and those of his opponents, and and then shouting in unaffected happiness when he won.  It is hard to imagine the withdrawn and aloof Jefferson in a similar posture." --Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Divers America (2006).

Chief Justice John Marshall

The Judiciary Act  (Section 13):

     The act to establish the judicial courts of the United States authorizes the supreme court "to result writs of mandamus, in cases warranted past the principles and usages of police force, to any courts appointed, or persons holding office, under the authorization of the United States."

Commodity III of Constitution
Department. two

     The judicial Ability shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties fabricated, or which shall be fabricated, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies betwixt two or more States;--between a Country and Citizens of another State;--between Citizens of dissimilar States; --between Citizens of the same State claiming Lands under Grants of dissimilar States, and between a Land, or the Citizens thereof, and foreign States, Citizens or Subjects.

      In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases earlier mentioned, the Supreme Court shall take appellate Jurisdiction, both equally to Constabulary and Fact, with such Exceptions, and nether such Regulations as the Congress shall make.

Original Intent & Judicial Review

The Constitution does not expressly provide for judicial review.  What should exist made of this fact?  Does it suggest that the framers did not intend to give the courts such a power?  Not necessarily, although that is one explanation for its absence.  Information technology is besides possible that the framers thought the power of judicial review was sufficiently articulate from the structure of government that it need non be expressly stated.  A tertiary possibility is that the framers didn't think that the issue would ever come up upwards, considering Congress would never pass legislation exterior of its enumerated powers.

Simply 11 of the 55 delegates to the Ramble Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review.  Of those that did then, nine generally supported the idea and two opposed. Ane delegate, James Wilson, argued that the courts should have the fifty-fifty broader power to strike downwardly any unjust federal or state legislation.  Information technology may also be worth noting that over one-half of the thirteen original states gave their own judges some power of judicial review.

Footnote: The Flying Fish Instance 2 Views on Seizures John Adams T. Jefferson Vice President Thomas Jefferson opposed the 1799 order of President  Adams allowing the seizing of ships.

Many people know the first  Supreme Court decision to declare an deed of Congress unconstitutional (It'south Marbury, of form), but few people could identify the Court'south get-go decision declaring Executive Branch action to be unconstitutional. Little v Barreme (1804), called the Flying Fish case, involved an society past President John Adams, issued in 1799 during our cursory war with France,  authorizing the Navy to seize ships bound for French ports.  The president's club was inconsistent with an human action of Congress declaring the government to have no such say-so.  After a Navy Captain in December 1799 seized the Danish vessel, the Flying Fish, pursuant to Adams'southward order , the owners of the ship sued the helm for trespass in U. S. maritime court.  On appeal, C. J. Marshall rejected the captain'south statement that he could not exist sued because he was simply post-obit presidential orders.  The Court noted that commanders "human action at their own peril" when they obey invalid orders--and the president'due south lodge was outside of his powers, given the congressional action.

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Source: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm#:~:text=Does%20it%20suggest%20that%20the,need%20not%20be%20expressly%20stated.

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