How Did John Marshall Secure the Power of Judicial Review
by Jeffrey Rosen
The Supreme Court plays a crucial but paradoxical role in American commonwealth. Many Americans think of it equally the caput of the least democratic co-operative of the federal authorities, designed past the framers of the U.S. Constitution to protect vulnerable minorities against the tyranny of the majority. From the decisions protecting the complimentary speech of defendant Communists in the Common cold State of war era to the contempo decisions protecting the rights of suspected terrorists after 9/11, the Court, at its all-time, has often appeared to defend fundamental principles of freedom and equality in the face up of popular opposition. Nearly all of the most controversial bug in American politics -- from school prayer and gay rights to affirmative action and ballgame -- stop upwards before the Courtroom, and justices are appointed for life precisely so they tin consider these issues in constitutional rather than political terms. The Court's greatest power is judicial review, the power to strike down laws passed by federal and state legislatures, on the grounds that they violate bones principles in the Constitution. For all these reasons, information technology is easy to run into why the justices are often praised -- or vilified -- for thwarting the will of the American people.
The Court'due south power to strike down laws explains why information technology has long been criticized equally an anti-democratic institution. Yale legal scholar Alexander Bickel wrote in the 1960s that the Court was a "deviant institution in American commonwealth" considering whenever information technology strikes down a police force, "it exercises control, not in behalf of the prevailing bulk, only against it." At the starting time of the Democracy, the Courtroom was far weaker than Congress or the president -- information technology met in the basement of the Capitol for the get-go half of the 19th century, and was and so politically cautious that information technology struck down only ii federal laws betwixt 1803 and 1857. Today, the Courtroom is far more politically secure and assertive: between 1994 and 2002 information technology struck downwardly all or office of 32 federal laws. As a result, criticisms of the Court from interests on the Left and the Right are often strident, leading retired Justice Sandra Day O'Connor to express concern near the future of judicial independence.
The Framers of the U.South. Constitution were less concerned that the Court would impede democracy. In the Federalist Papers, Alexander Hamilton predicted that the federal courts would be the "least dangerous branch" of the federal government, because they had neither soldiers nor money to enforce their decrees. Hamilton also rejected the idea that the Supreme Court was inherently anti-democratic: when information technology struck downwardly federal and state laws in the name of the fundamental ramble principles, he explained, the Court would serve commonwealth rather than thwart it, because the Constitution represented the will of the people, while federal and land laws simply represented the will of the people's temporary and fallible representatives. The Court's power of judicial review would also protect express government and private freedom.
America's greatest primary justice was John Marshall, who served from 1801 to 1835. Two years afterwards his appointment, in the landmark case Marbury v. Madison, Marshall treated the Courtroom'south power to strike down laws equally if it were obvious, even though information technology does not appear explicitly anywhere in the text of the Constitution. Just although Marshall asserted the Court's ability to strike down laws in theory, he declined to press information technology very far in exercise. Marbury involved a politically fraught confrontation with Marshall's archrival and distant cousin, President Thomas Jefferson. At issue in the case was whether Jefferson'southward Secretarial assistant of State, James Madison, had acted illegally by refusing to evangelize the commission of William Marbury, a justice of the peace appointed by President John Adams in the concluding days of his administration. Marshall defused the confrontation past holding that Marbury did indeed have a correct to the commission, just that the Supreme Court had no power to club Madison to evangelize information technology because the relevant federal law authorizing the courts to issue orders of this kind was unconstitutional.
John Marshall's successor, Chief Justice Roger Taney, more often than not continued the policies of defending strong judicial authority while expressing more concern for states' rights.
Reproduction courtesy of the Missouri Heritage Projection
Source: https://www.thirteen.org/wnet/supremecourt/democracy/history.html
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