This paper examines the origins and evolution of judicial review in the United States, tracing the concept from its extra-constitutional beginnings through Chief Justice John Marshall's landmark 1803 decision in Marbury v. Madison. The paper surveys the legislative process, the amendment procedures of Article V, the Judiciary Act of 1789, and the precedents that informed Marshall's reasoning. It also analyzes Texas v. Johnson (1989) as a modern illustration of judicial review in action, particularly regarding First Amendment protections for symbolic speech. The paper concludes by assessing what options remain for the executive and legislative branches when the Supreme Court strikes down legislation as unconstitutional.
The paper demonstrates synthesis of primary legal sources (case law and statutory text) with secondary scholarly commentary. Rather than simply describing what courts decided, the author incorporates legal historians such as Treanor to show that Marshall's ruling was not novel but consistent with prior judicial practice — a nuanced historiographical point that strengthens the analysis.
The paper opens with a framing introduction that defines judicial review and stakes its extra-constitutional nature. It then proceeds through a series of thematically labeled subsections — the legislative process, Article V, the Judiciary Act of 1789, and Marbury v. Madison — before pivoting to a contemporary case study in Texas v. Johnson. A brief conclusion synthesizes the findings and returns to the central thesis about Marshall's enduring legacy. This is a classic expository legal essay structure suitable for an undergraduate course.
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 the 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 examines 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.
The legislative process is the means by which laws are enacted in the United States. 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 to be effective, and the Supreme Court has assumed responsibility for making that determination. In this regard, Treanor (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).
The process required to amend the Constitution, as 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 anywhere in that text. The salient points of Article V concern the various ways the legislative and executive branches of the federal and state governments may seek 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 that constrain the majority are debated intensely and thoroughly before being acted on by American society at large, and such instances are, in fact, relatively rare (Arthur 22).
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 the Federalist Papers, there is no mention of judicial review in the U.S. Constitution itself. The origins of the concept are discussed further below.
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, it failed to provide for a number of eventualities that would ultimately be settled by the findings reached in Marbury v. Madison, discussed further below.
One of the more interesting aspects of Chief Justice Marshall's decision in this case was his ability to "think outside the box" and render a decision based on his perception of the Supreme Court's role in formulating the law of the land, rather than merely deciding the narrow issues in a dispute over the delivery of a commission appointing a justice of the peace. Chief Justice Marshall's reasoning — his choice not simply to issue a writ of mandamus affirming the Court's authority to do so — may not have been as original as many assume. 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). Treanor also suggests that Chief Justice Marshall's rationale was in reality grounded in a number of previous decisions that had themselves weighed in on constitutional boundaries (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). In other words, Marbury v. Madison did not create judicial review from nothing; it gave formal, authoritative expression to a practice that had already taken root in American jurisprudence.
The research showed that each of the three branches of federal government enjoys certain responsibilities and rights, and the system of checks and balances that exists provides some equilibrium among them. When the Supreme Court, in its capacity as the "ultimate expositor of the constitutional text," determines that a law fails judicial review, there is little the other branches can do to compel it to act otherwise. Certainly, a president acting as commander in chief could, in moments of deep frustration with the Court's decisions, contemplate extraordinary measures, yet the institutional weight of judicial review has historically prevailed.
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