Judicial review principles and scope

Judicial Review: The Legacy of Marbury v. Madison

The supreme law of the land is the U.S. Constitution, and the Supreme Court has become the final arbiter of what the Constitution means for the federal government and several states. The process by which the Court renders judgment in this regard has come to be known as judicial review, but this process is entirely extra-constitutional and is based in large part on the precedential findings made in Marbury v. Madison in 1803. This paper examine the origins and evolution of judicial review through an analysis of controlling legislation, and a discussion of what happens when a law is struck down as unconstitutional. An assessment of what alternatives are available to the executive and legislative branches once the judicial branch has exercised judicial review is followed by a summary of the research in the conclusion.

Review and Discussion

The Legislative Process. This is the process by which laws are enacted in the U.S. Although the legislative and executive branches of the federal government enjoy the constitutional right to propose and enact legislation for a wide variety of purposes, such legislation must "pass constitutional muster" in order for it to be effective and the Supreme Court has assumed this responsibility. In this regard, Treaner (2005) reports that, "The Supreme Court has claimed originalist sanction for the view that it is 'the ultimate expositor of the constitutional text,' and in the past decade has struck down a string of congressional statutes on originalist grounds" (455).

Article V. The process required to amend the Constitution set forth in Article V makes it extremely difficult to change the Constitution and there is no specific mention of judicial review or the Supreme Court at all in the text. The salient points of Article V regard the various ways the legislative and executive branches of the federal and state governments can go about seeking amendments to the Constitution and what is required to ratify them. According to Arthur (1995), "The required two-thirds and three-fourths majorities help assure that self-incapacitation is effective. Although constitutional amendment is possible, most amendments have involved constitutive rules, extending the vote to new groups, revising procedures for electing officials, or providing for the transfer of power during emergencies" (22). Instances of substantive issues involving fundamental constitutional principles constraining the majority are debated intensely and thoroughly and then acted on by American society at large are, in fact, relatively rare (Arthur 22).

Judicial Review. According to Black's Law Dictionary (1990), the term judicial review refers to the "power of courts to review decisions of another department or level of government (Marbury v. Madison, 5 U.S. 137, 177)" (849). Although Alexander Hamilton described the basic principles of judicial review in an article in the Federalist Papers, there is absolutely no mention of judicial review in the U.S. Constitution. The origins of the concept of judicial review are discussed further below.

Judiciary Act of 1789. In her book, Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, Marcus (1992) reports that today, "The judicial system, created by the Judiciary Act of 1789, not only exists but thrives" (3). Despite the importance of the Act in establishing the form of the American judicial system, the Act failed to provide for a number of eventualities that would be settled at the time by the findings reach in Marbury v. Madison discussed further below.

Marbury v. Madison (1803). In reality, one of the more interesting aspects of Chief Justice Marshall's decision in this case was his ability to "think outside the box" and make a decision based on his perceptions of the Supreme Court's role in formulating the law of the land rather than merely deciding the issues involved in the case involving the delivery of a commission simply appointing a justice of the peace. The Chief Justice's reasoning in not simply issuing a writ of mandamus and supporting the Supreme Court's authority to do so or deciding otherwise, though, may not have been as original as many might think. According to Treanor, "The prevalence of pre-Marbury exercises of judicial review helps explain why the assertion of judicial review in Marbury provoked little controversy, a fact that previous scholars have often found surprising" (455). This author also suggests that Chief Justice Marshall's rationale in deciding Marbury was in reality based on a number of previous decisions that had stepped on the constitution (Treanor 455). As Treanor emphasizes, "What appears to be a puzzling, unconvincing, and uniquely aggressive exercise of judicial review was fully consistent with prior judicial decisions in which courts had invalidated statutes that trenched on judicial authority and autonomy" (455).

Texas v. Johnson (1989). Perhaps as no other issue in the post-September 11, 2001 climate is that of flag-burning. The debate is heated and emotionally charged, and it is easy to get caught up in the rhetoric. Nevertheless, it is important to keep in mind what the flag represents to many people and avoid characterizations that would lead to misunderstandings. The U.S. flag and - in the case of Texas v. Johnson, state flags can mean a great deal to citizens and it is natural to expect them to want their flags honored and respected. When people use the symbolism inherent in the national or a state flag, they touch buttons that are not otherwise reachable and it is not surprising to see legislation seeking to ban such activities in response. Notwithstanding the ability of flags to be used for this button-touching purpose, though, it is equally important to keep in mind just what the First Amendment is all about.

The U.S. flag and the several state flags also represent the fundamental constitutional right of all Americans to speak their minds in any fashion they desire, and this right has been expanded to include such a wide array of activities that to prohibit flag-burning just does not make sense. The U.S. flag from this perspective protects the very right of its citizens to burn it whenever they damn well please. As Raskin (2003) emphasizes, "Because 'speech' and 'nonspeech' were mixed together in the flag-burning [in Texas v. Johnson], Justice Brennan followed the Court's O'Brien standard, which requires government to show a 'sufficiently important governmental interest in regulating the nonspeech element' in order to justify any 'incidental limitations on First Amendment freedoms'" (2000). This author also notes that Justice Brennan also maintained that the asserted "governmental interest," though, must be "unrelated to the suppression of free expression" (Texas v. Johnson 414-17 cited in Raskin at 211). According to this author, "The problem for Texas was that its asserted interest 'in preserving the flag as a symbol of nationhood and national unity' was precisely related to political expression. The state wanted to control the symbolic uses of the flag to prevent anti-government messages (emphasis added) (Raskin 211). To hold otherwise, the Court reasoned, would be to sanction different treatments by different interest groups in the physical integrity of the flag. For example, to hold that the ceremonial burning of flags when they had become unserviceable was allowed but to outlaw the practice by those who wanted to burn flags for other reasons would be say that "the flag itself may be used as a symbol only in one direction. We would be permitting a State to 'prescribe what shall be orthodox'" (Texas v. Johnson 414-17 cited in Raskin at 211).