How does the Constitution give the judicial branch a role in the legal system?

Article III, Section 2 speaks about the jurisdiction of the federal courts—specifically the United States Supreme Court. The Constitution does not specifically mention the power of the judiciary to review whether laws are constitutional. However, Chief Justice John Marshall—the fourth Chief Justice of the U.S. Supreme Court—wrote in a famous early Supreme Court decision Marbury v. Madison (1803): "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 and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." This is the power of judicial review.

Why is judicial review celebrated and criticized in the democracy?

This is a complex question, but judicial review allows judges to correct errors made by the legislative branch. If a law clearly violates constitutional rights, the court has the power to rectify the situation. A classic example of a celebrated use of judicial review was the U.S. Supreme Court's 1954 decision in Brown v. Board of Education. The U.S. Supreme Court determined that public schools must be desegregated because segregated public schools violated the Equal Protection Clause of the Fourteenth Amendment.

On the other hand, judicial review is criticized because it enables judges to thwart the will of the people as expressed in popular laws. For instance, the U.S. Supreme Court can strike down a law that Congress and the American people largely support. This to some is undemocratic and gives too much power to the judiciary.

What was the leading framer James Madison's opinion of judicial review?

Virginia delegate James Madison realized that too much power in any one branch could create problems when he wrote in the Federalist 47: "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and where hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." Madison actually favored a system whereby the justices would join with members of the executive branch to form a council of revision that would review laws proposed by the U.S. Congress.

What were some important precursors to Marbury v. Madison?

Marbury v. Madison (1803) is rightfully considered the leading decision on judicial review since it was decided by the U.S. Supreme Court. However, it did not occur in a vacuum, as a few state courts had already assumed the power of judicial review to invalidate laws. These include Rutgers v. Waddington (1784), Trevett v. Weeden (1786), and Bayard v. Singleton (1787).

The Rutgers decision involved a British merchant named Waddington, who occupied the property of Rutgers under orders from the British military during the Revolutionary War. The legal issue concerned whether Waddington could be convicted of trespassing for invading the property of an American citizen. Alexander Hamilton defended Waddington, arguing that the New York trespass law must yield to a 1783 treaty between the United States and Great Britain that prohibited the punishment of British sympathizers (called Tories or Loyalists) for conduct during the war.

The Trevett decision concerned the prosecution of butcher James M. Varnum for violating a Rhode Island law that punished those who refused to accept paper money. The Rhode Island court struck down the state law, causing an outrage in the legislature. The legislature called the judges before it to question them for their act of striking down a state law. The legislature even refused to reappoint four of the five judges.

In Bayard, Elizabeth Bayard sought to recover property confiscated because her father was a Loyalist. The owner of the property, a Mr. Singleton, had purchased the property from the state of North Carolina. The North Carolina court ruled in favor of Bayard, striking down the Confiscation Act, passed by the North Carolina General Assembly during the American Revolution. The judges determined that the confiscation law violated the North Carolina Constitution's provision for trial by jury and determined that Bayard should have the opportunity to present her case before a jury.

These three decisions served as key precedents on the road to Marbury v. Madison.

Is judicial review an American invention?

No, judicial review clearly can be traced to the English system of common law. In 1610 English jurist Sir Edward Coke wrote: "when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common Law will control it and adjudge such Act to be void." Several state court jurists in early America also assumed the power of judicial review for the court.

What did Alexander Hamilton have to say about judicial review?

In his Federalist 78, Hamilton said:

If then the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit of judges, which must be essential to the faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

Why do some consider the judicial branch the least powerful branch of government?

The judicial branch—even though it has the power to interpret laws—is considered the weakest of the three branches by many because it cannot ensure that its decisions

Alexander Hamilton argued that court justices should have permanent tenure to afford them greater independence in making their judgments (Library of Congress).

Alexander Hamilton argued that court justices should have permanent tenure to afford them greater independence in making their judgments (Library of Congress).

are enforced. This dilemma was famously explained by President Andrew Jackson, who did not like two decisions by the U.S. Supreme Court that ruled in favor of the Cherokee Indians in a dispute with the State of Georgia. Jackson famously said: "John Marshall has made his decision, now let him enforce it."

However, federal judges have great power due in part to their longevity. Federal judges receive life appointments under the Constitution. This insulates them from the political pressures that state judges—most of whom serve for specific terms and face re-election or retention—encounter.

Does the Constitution specify the number of U.S. Supreme Court justices?

No, the Constitution does not mention how many justices must serve on the U.S. Supreme Court. The Judiciary Act of 1789, provided for a Chief Justice and five associate justices. In 1801, a new law provided that the Supreme Court would consist of one chief justice and four associate justices. In 1807, the number of associate justices was set at six. In 1837, there were eight associate justices. In 1864, Congress changed the number of associate justices to nine, meaning there were a total of ten Supreme Court justices (nine Associate Justices and the Chief Justice). In 1869, Congress passed a law setting the number of associate justices at eight. Since that time, there have been nine Supreme Court Justices.


Are state constitutions based on the U.S. Constitution?

Not necessarily, as many state constitutions were enacted before the 1787 U.S. Constitution. There are some similarities between the various constitutions but there are also distinct differences. For example, the Tennessee Constitution contains eleven articles instead of the seven contained by the U.S. Constitution.

Another difference between some state constitutions and the federal constitution concerns the number of amendments adopted. Some states have adopted hundreds and hundreds of amendments to their state constitution, as the amending process is much less rigorous than under the federal constitution. For example, the Alabama Constitution of 1901 has been amended approximately 800 times in its history.

Who determines the meaning of a state constitution?

A state high court—usually called a supreme court—is the final arbiter of the meaning of a state constitution. The only exception to that rule is that the state constitution cannot provide less protection than the protections offered by the U.S. Constitution.

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