The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review
| Publication year | 2021 |
| Pages | 87 |
83 CBJ 87. The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review
Volume 83, No. 1, Pg. 87
MARCH 2009
The principal theme in Lawrence Goldstone's The Activist is that the power of judicial review as enunciated by Chief Justice John Marshall in Marbury v. Madison(fn1) "was a constitutional amendment by fiat, a de facto addition to Article III"(fn2 )of the Constitution. Goldstone is wrong. It is true that Article III does not specifically grant the Supreme Court, or any federal court, the power to declare a law passed by Congress unconstitutional, but it was never necessary that such power be explicitly set forth. The power to rule that a statute violates the Constitution is an inherent judicial power,(fn3 )as inherent as the power of a court to draw up rules of practice, which also is not specifically set forth in Article III
Lawrence Goldstone is a student of the United States Constitution, and his book is well written and very interesting. In addition to his argument that the Framers of the Constitution never intended the Supreme Court to have the power to nullify congressional acts, he gives us a very good capsule biography of John Marshall, his relationship with George Washington, and his rise in Virginia and national politics before being appointed Chief Justice in 1801 by President John Adams. Goldstone also presents the interesting story of the ratification of the United States Constitution in both Virginia and New York, the early history of the Supreme Court under Chief Justices John Jay, John Rutledge and Oliver Ellsworth, and a play-by-play narration of the election of Thomas Jefferson over Aaron Burr in the House of Representatives.(fn4) During these early days, Supreme Court justices used to sit on the various federal circuit courts-riding the circuit-to decide cases, and in several cases they declared state laws unconstitutional. Thus, the power of judicial review was not something new when Chief Justice Marshall for the first time applied it to a federal statute. If a law violates the Constitution, how is a court supposed to react to it? Enforce it anyway? If the courts do not have this power, what check is there on a Congress that passes unconstitutional laws? The only check left would be a presidential veto. And then what happens if Congress overrides the veto? Should the President, who takes an oath to support and defend the Constitution, refuse to enforce it on grounds he is obliged not to enforce unconstitutional legislation? The only remedy Congress has in that case is the drastic remedy of impeachment. Without the high court's power of judicial review, a Congress strongly controlled by one party-even if the President were from another party-could become a legislative tyrant Jeffersonians maintained that Congress was competent to determine the meaning of the Constitution. They apparently forgot when the Federalist-controlled Congress in 1798 had passed the Sedition Act, a clear violation of the First Amendment. Suppose one of the trial judges before whom a Republican newspaper editor was to be tried for sedition found that the Sedition Act violated the First Amendment and dismissed the case? A case of judicial overreaching? Legislating from the bench? or defending the Constitution as the judge was sworn to do.
The title "The Activist" relates to the name given to judges who conservatives believe are putting their own values into the law instead of interpreting the law the way it was written.. Under this paradigm, conservatives prefer judges who are "originalists" or "texualists," who interpret what's there without adding what they want or taking away what they don't like. Thus, Chief Justice...
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