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Published online by Cambridge University Press: 01 August 2014
In 1803 the Supreme Court, in an opinion written by Chief Justice Marshall, refused to enforce an act of Congress on the ground that it conflicted with the Constitution. This decision was noteworthy in that it was the first occasion on which the Supreme Court asserted such a right, and it has since come to be looked upon as the cornerstone of judicial supremacy.
The accuracy of the Chief Justice's reasoning has been attacked on various grounds, and it has been pointed out that every argument used by him in favor of judicial review begins by assuming the whole ground in dispute. Very few authorities who have taken this view have asserted that the courts have usurped this power. Obviously nothing could be farther from the truth. A course of action which had the backing of nearly every influential member of the Constitutional Convention, which was frequently stated, generally without opposition, in the various ratifying conventions, and which was very clearly set forth in the Federalist, cannot be said to be a “usurpation of power” in any sense of the term. However, authorities do point out that the true explanation of this power of our courts is not to be found in the mere fact that we have a written constitution which is the “supreme law.” Marshall himself recognized this shortly after the Marbury case, when he gave equal weight to the “general principles which are common to our free institutions” along with “the particular provisions of the Constitution of the United States,” on the theory that “the nature of society and of government …. prescribe some limits to the legislative power.”
1 Marbury v. Madison, 1 Cranch 137 (1803).
2 Granting that the Constitution is a law of superior obligation, on what grounds do the courts assert that their judgment is superior to that of the legislature that enacted the law? If the oath of office be the test, would not a different conclusion seem necessary? The judges take the same oath as every other public official, national or state, save one—the oath of the President is provided in the Constitution itself. Consequently, the President becomes the guardian of the Constitution, with the duty of refusing to enforce any decision that the courts may render if he believes it to be an incorrect construction of that document.
3 Fletcher v. Peck, 6 Cranch 87 (1810), often referred to as the Yazoo Frauds case.
4 Johnson, J., stated, “I do not hesitate to declare that a state does not possess the power of revoking its own grants. But I do it on a general principle, on the reason and nature of things: a principle which will impose laws even on the Deity.” He added that he wished it “distinctly understood that [his] opinion on this point is not founded on the provision in the Constitution.” Ibid., 143–144.
5 Commentaries, Bk. I, 91.
6 “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Chief Justice Chase in ex parte McCardle, 7 Wallace 506, 514 (1868).
7 Myers v. U.S., 272 U.S. 52 (1926). See also Parsons v. U.S., 167 U.S. 324 (1897).
8 This is the form in which the statute reads today. 28 U.S.C.A., Sect. 342. See Corwin, , The Doctrine of Judicial Review, 7–9.Google Scholar
9 Art. III, sect. 2, cl. 2.
10 28 U.S.C.A., Sect. 41 (18). The provision covers all suits against foreign consuls or vice-consuls.
11 136 U.S. 211 (1890).
12 It also appears that the earlier attitude of the Supreme Court on the very statute involved in the Marbury case had been that Congress could add to the Court's original jurisdiction. See McLaughlin, , “Marbury v. Madison Again,” 14 Amer. Bar Assoc. Jour., 155, 158Google Scholar, and cases cited.
13 Only the local courts of the District of Columbia have been given jurisdiction in such cases.
14 See Parsons v. U.S., 167 U.S. 324 (1897), where the President was sustained in removing a federal district attorney before the expiration of his four-year term. It need scarcely be added that the validity of this view in no way depends upon the soundness of the Myers case. In that case the Court was faced with a statute that expressly provided that Myers could be removed only “by the President by and with the consent of the Senate.”
15 261 U.S. 525 (1923).
16 243 U.S. 629 (1917).
17 Dred Scott v. Sandford, 19 How. 393 (1857).
18 16 Wall. 36 (1873).
19 94 U.S. 113 (1876).
20 96 U.S. 97 (1878).
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