Judicial Review

It is June and that means the Supreme Court of the United States is announcing it's decisions. Another one was handed down this morning and that prompted one pundit I heard on the radio to opine that the Constitution does not give the Supreme Court as much power as it currently exercizes, meaning the Court does not have the power to limit or abolish the legislation passed by the Congress and signed into law by the President. In short, according to the man on the radio, judical review is an unconstitutional agrandizement of the Supreme Court that began with Marbury vs. Madison in 1803. Over the course of my life I have heard many people say the same thing, that Chief Justice John Marshal invented the power and foisted it on the American people in the Marbury vs. Madison decision, and that the Congress and the President should resist the Supreme Court's usurpation with patriotic vigor. Strangely, even the U.S. judiciary's official website goes with the Marbury vs. Madison origin story. I think this is wrong.

Just as I look to the authoress of the New Testament to expalin the New Testament, I look to the authors of the Constitution, reveranlty called "The Framers", to the Founding Fathers, and the Patriots to explain the Constitution. And among The Framers, Founders, and Patriots, three stand out as explainiers of the Constitution: John Jay, (Member of the Continental Congress, writer of the Olive Branch Petition, ambasador to Spain during the American Revolution, signer of the Treaty of Paris, delegate to the Constitutional Convention, first Chief Justice of the Supreme Court, Governor of New York, and founding member and first Vice President of the American Bible Society), James Madison (colonel in the Orange County militia, drafter of the Constitution, 4th President of the United States, and respondent in the case of Marbury vs. Madison), and Alexander Hamilton (founding member of the Hearts of Oak militia, officer in the Continental Army, member of the Congress of the Confederation, delegate to the Constitutional Convention, founder of the Bank of New York which is now known as BNY Mellon Bank, founder of the New York Post, and first United States Secretary of the Treasury, and founder of the U.S. Coast Guard) After the Constitution was written, debated, and passed by the delegates it was sent to the 13 States for ratification. It was a touch and go thing as one State, Rhode Island was totally against the Constitution and several were on the fence. Many of the Founding Fathers and Patriots were opposed to ratification and lead a campaign against the ratification. But these three, Madison, Hamilton, and Jay gave themselves the task of convincing the people of New York to ratify the Constitution. They wrote a series of essays for publication in the various nwespapers in New York, that explained and defended the Constitution to the New Yorkers. The essays are now called Federalist Papers.

In Federalist Paper #78, published in the New York Packet 17-20 June 1788, Alexander Hamilton explained the judicial branch of the new Constitution, and was not ambiguous about the Supreme Court's power to define the limits of Congress's power to make laws, and that the Supreme Court is a buffer between the Congress and the People who have to live under the Congress's laws.

"If it is said that the legislative body is themselves the constitutional judges of their own powers and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

Furthemore, that the Supreme Court is the final barrier to legilative tyrrany, interpretting the laws pased by the Congress and judging them according to the Constitution, the Constitution being superior to any act of Congress.

If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . .where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

Thus we see that the authors of the Constitution considered the doctrine of judicial review to be fundamental to the Supeme Court's role in our government, and, therfore judicial review should not be though of as an arrogancy of Chief Justice John Marshall only invented in 1803.