May 30, 2019 | Political Speech Under Burson v Freeman
|Judicial Review, a power exercised by the judicial branch, and the Supreme Court in particular, is ubiquitous in the colloquial understanding of the job of the Court. People associate the Supreme Court with its ability to declare a law made by the states or by Congress unconstitutional. It can therefore be surprising to learn that this power cannot be found in any textual provision of the Constitution.In fact, this power is inferred from two disparate provisions, Article III, where the Court is given the power to decide cases “arising under this Constitution, and from Article IV, which states that the Constitution is the “supreme law of the land.” The Constitution is supreme; it trumps legislation, so to speak. The Court decides cases regarding the Constitution. Therefore, the Court decides if and when a piece of legislation is constitutional.This idea may appear almost obvious from the above-mentioned provisions. However, it took a Supreme Court case, Marbury v. Madison (1803), to cement its place as a foundational element of the U.S. judicial system.There were, however, stirrings of this power before Marbury. In Hylton v. United States (1796), the Court examined the constitutionality of a Congressional act relating to taxes. As it happened, the Court decided that the act was, in fact, constitutional. So it did not have to exercise the extreme measure of declaring the tax unconstitutional. However, this set the state for Marbury, where such a measure was taken.||Hylton v. United States (1796)|
|Marbury v. Madison||Important Cases|
|Marbury v. Madison is notable not just for its lasting impact on the Court’s jurisprudence and the notion of separation of powers. It is also notable for the story and intrigue behind the case itself.In the election of 1800, or the Revolution of 1800, as it has come to be known, Thomas Jefferson defeated incumbent John Adams to become the third President of the United States. However, there was a “lame-duck” period of time after the election and before President Adams was to step down. During this period, President Adams used the power of his office to appoint dozens of judges to vacant seats (many of which, incidentally, President Adams had helped create through the signing of a new law adding more lower federal courts). The process by which judges were appointed was such that the President would appoint them, the Senate would approve them, and the names would then have to be delivered to the Secretary of State.In the short period of time between the election and the beginning of the new presidency, however, there simply was not enough time for this process to be completed for all the judges. While they were appointed and approved, then-Secretary of State John Marshall (who was also, somewhat unbelievably, Chief Justice of the Supreme Court) just could not complete his part in time.President Jefferson took over the office, and with him came a new Secretary of State, James Madison (who, aside from eventually becoming the fourth President, helped to author much of the U.S. Constitution). Secretary of State Madison (and a brief predecessor working as acting-Secretary), then, refused to continue the appointment process for Adams’ appointees, under orders from President Jefferson.One of those appointees, William Marbury, petitioned the Supreme Court for what is called a “writ of mandamus,” basically a court proceeding used to decide such an issue. Marbury claimed that Jefferson and Madison had no such right not to deliver the remaining appointments.Chief Justice Marshall, then, found himself to be at the center of a delicate political issue. He was, after all, the former Secretary of State under President Adams. If he so emphatically sided with Marbury, he could be accused of being bias or partial, or possibly even corrupt. But if he sided with Madison, he could be seen as turning his back on the political ideologies that he had long aligned himself with.Chief Justice Marshall, however, had a way out, one that was unique – and one that did more than simply sidestep the issue at hand.|
First, the Court found that, indeed, Marbury did have a legal right to the post he was appointed to by President Adams. However, and this was a monumental qualification, the United States Supreme Court did not have the power to compel the appointment through this writ of mandamus. As it happened, the power of the Court to issue writs of mandamus was not included in the Constitution. It was instead part of a law, the Judiciary Act of 1789. This statute gave original jurisdiction to the Court to issue such writs. Original jurisdiction means that a person can appeal directly to a court, without having to first go through another process. This is in contrast with appellate jurisdiction, in which a court can only rule on some matter after another court has ruled on the issue and the party has appealed to the higher court to reconsider the ruling.
Per Article III, Section 2, the Court only has original jurisdiction,”[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” For every other case, the Court only has appellate jurisdiction. A party must first work its way through the lower courts before the Supreme Court can rule on the case. As far as the Constitution was concerned, Marbury may have very well had a right to his post, but the Court could not make any decisions on the matter in the process by which Marbury had gone about the case.
In other words, the Congressional statute, the Judiciary Act of 1789, and a provision in the Constitution, Article III, Section 2, were in direct conflict. Chief Justice Marshall applied the notion of Judicial Review to render the Judiciary Act unconstitutional. According to the Chief Justice, the Supremacy Clause lifted up the Constitution above any legislation, and Article III granted the Court the power to decide a conflict between the Constitution and legislation, and interpret the Constitution accordingly.
William Marbury never did get his post. But Marbury v. Madison lives on.
|Marbury v. Madison (1803)|
Dred Scott v. Sandford (1857)
|Judicial Review and the States||Important Cases|
|While Marbury cemented the Court’s authority to exercise Judicial Review over federal legislation (though that authority would not again be exercised until Dred Scott v. Sandford (1857)), it took a few more more years for the Court to assert its power over state statutes and courts as well.In Fletcher v. Peck (1810), the Court invalidated the Georgia legislature’s voiding of certain previously made contracts. The Court held this to be a violation of the Contract Clause in Article I, Section 10.In Martin v. Hunter’s Lessee (1816), the Court both invalidated a Virginia law and overruled the Virginia Supreme Court’s opinion on the issue. Virginia had passed a law permitting the confiscation of land belonging to British loyalists (during the Revolutionary War). This law was challenged in an earlier case in the U.S. Supreme Court, and the Court held that the law was unconstitutional. The Virginia Supreme Court, however, charged with implementing that decision, refused to comply, holding the U.S. Supreme Court to have no power over state court actions. The case then returned to the U.S. Supreme Court which insisted on, and fomented, its supremacy over state legislative and judicial action.||Fletcher v. Peck (1810)|
Martin v. Hunter’s Lessee (1816)