Did the Framers Intended for the Court to Have the Power of Judicial Review

Judicial Review

The Event:  Does the Constitution Give the Supreme Court the Power to Invalidate the
Actions of Other Branches of Government?

Introduction
In 1800 the Federalists and their candidate, President John Adams, lost the election to Thomas Jefferson.  Early in 1801 the lame-duck Federalist Congress enacted a controversial Judiciary Act that created 58 new judgeships, including 42 justiceships of the peace, for Adams to appoint.  Jefferson complained that the Federalists "have retired into the judiciary as a stronghold."  On the night March 3, 1801, John Marshall, acting as secretary of land, affixed the official seal to the commissions for the justices of the peace.  He did not, nevertheless, deliver the commissions.  The adjacent day, after Thomas Jefferson was inaugurated, he directed the new secretarial assistant of country, James Madison, to withhold delivery of 17 of the 42 commissions, including that of William Marbury.  William Marbury sued for a writ of mandamus to require Madison to hand over his committee.
William Marbury The decision in Marbury's example, written past Master Justice John Marshall (the very same John Marshall who affixed the seal to Marbury's commission--talk about a conflict of interest!) established and justified the power of judicial review.  It is the first case read past almost every first-year police pupil and is mostly considered the greatest of all landmark cases.  Marshall strained to accomplish his result.  The plain words of Section xiii of the Judiciary Act indicate that Marbury went to the incorrect court or invoked the wrong statute (or both), only Marshall proceeded every bit if the suit were authorized by Section 13 and so alleged the statute unconstitutional on the grounds that it purported to expand the Court'due south original jurisdiction in violation of Article Iii.  Marbury's arrange was dismissed for lack of jurisdiction.  Marshall's conclusion--brilliant in its conception--allowed the Court to make Jefferson a violator of ceremonious rights without issuing an order that the President could have ignored.

Case
Marbury vs. Madison (1803)

Fragment from John Marshall'south Handwritten Decision

Questions

1. Is judicial review a skilful thought? Should ix unelected judges exist able to tell our elected representatives what they can and cannot do?
2. Are courts more than likely to block an enlightened consensus with their adherence to outdated principles or to protect the politically weak from oppressive majorities?
3.  Are judges, protected with lifetime tenure and fatigued generally from the educated class, more probable to be cogitating and above the passing enthusiasms that bulldoze legislative action?
4.  Does Marbury hateful that legislators or members of the executive branch accept no responsibility to judge the constitutionality of their own actions?
5.  Could we accept a workable system of regime without judicial review?

"The prime number and about necessary function of the Courtroom has been that of validation, non that of invalidation.  What a authorities of express powers needs, at the beginning and forever, is some means of satisfying the people that it has taken all steps humanly possible to stay inside its powers."

--Professor Charles L. Blackness

Links
Marbury v. Madison Background & Players
(James Madison Univ.)

Judicial Review (Wikipedia) 1800-1809 American Events Timeline

John Marshall - Definer of a Nation

1803 Petition, Debate & Vote of Wm. Marbury & Others
(from Annals of Congress)

Pitching quoits

Q uoits, Anyone?: The Personality Differences of John Marshall and Thomas Jefferson "[John Marshall] was proud of his skills in pitching quoits--a game involving a kind of circular horseshoe--and could be observed at the Quoits Club in Richmond toward the end of his life downing Madeira and rum  punch, getting downwardly on his easily and knees earnestly measuring the distance betwixt his quoit and those of his opponents, and then shouting in unaffected happiness when he won.  Information technology is hard to imagine the withdrawn and aristocratic Jefferson in a similar posture." --Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America (2006).

Chief Justice John Marshall

The Judiciary Deed  (Section thirteen):

     The act to plant the judicial courts of the United states of america authorizes the supreme court "to result writs of mandamus, in cases warranted past the principles and usages of law, to whatever courts appointed, or persons property office, under the dominance of the United States."

Article 3 of Constitution
Section. 2

     The judicial Power shall extend to all Cases, in Constabulary and Disinterestedness, arising under this Constitution, the Laws of the United states of america, and Treaties made, or which shall be made, under their Potency;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Political party;--to Controversies between two or more than States;--between a State and Citizens of another Country;--between Citizens of different States; --between Citizens of the same State challenge Lands under Grants of different States, and betwixt a State, or the Citizens thereof, and strange States, Citizens or Subjects.

      In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall take original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and nether such Regulations as the Congress shall make.

Original Intent & Judicial Review

The Constitution does not expressly provide for judicial review.  What should exist made of this fact?  Does information technology suggest that the framers did not intend to give the courts such a power?  Not necessarily, although that is one caption for its absenteeism.  It is also possible that the framers thought the power of judicial review was sufficiently articulate from the structure of authorities that it demand not be expressly stated.  A third possibility is that the framers didn't think that the upshot would ever come up up, because Congress would never pass legislation outside of its enumerated powers.

But 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review.  Of those that did and so, ix generally supported the idea and two opposed. I consul, James Wilson, argued that the courts should accept the even broader power to strike downwardly whatever unjust federal or state legislation.  It may besides be worth noting that over half of the thirteen original states gave their own judges some power of judicial review.

Footnote: The Flying Fish Case Two Views on Seizures John Adams T. Jefferson Vice President Thomas Jefferson opposed the 1799 order of President  Adams allowing the seizing of ships.

Many people know the commencement  Supreme Court determination to declare an human action of Congress unconstitutional (It's Marbury, of class), but few people could place the Court'due south kickoff decision declaring Executive Branch action to be unconstitutional. Little v Barreme (1804), called the Flight Fish case, involved an gild by President John Adams, issued in 1799 during our brief state of war with French republic,  authorizing the Navy to seize ships bound for French ports.  The president's order was inconsistent with an act of Congress declaring the regime to have no such authorisation.  After a Navy Captain in December 1799 seized the Danish vessel, the Flying Fish, pursuant to Adams's guild , the owners of the ship sued the captain for trespass in U. S. maritime courtroom.  On entreatment, C. J. Marshall rejected the captain'south argument that he could not exist sued because he was simply post-obit presidential orders.  The Court noted that commanders "act at their own peril" when they obey invalid orders--and the president's order was outside of his powers, given the congressional action.

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Source: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm