As a practicing attorney, I understand and appreciate the importance of precedent. I understand the need for the law to be predictable and consistent. I understand the importance of judicial history and opinion. At times, however, I like to undertake the exercise of asking “why?” Why do we do the things we do? Why do we follow the past like we do? I think reflection on the “why” will either strengthen our resolve in something that works or it allows us to revamp our approach for a better way. That is what I want to do today in this post. I want to ask the question of “why?”
Judicial review is the concept that the courts review acts of the other branches for constitutionality issues. The idea of judicial review isn’t found, explicitly, in the constitution. Instead, it is an idea created by … the courts. In today’s world, we would say that judicial review was created by judicial activism. The idea of judicial review arose from the case of Marbury v. Madison in 1803. Below is an excerpt from Wikipedia regarding Marbury v. Madison:
“Marbury v. Madison, 5 U.S. 137 (1803), was a landmark United States Supreme Court case in which the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.
The case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force the new Secretary of State James Madison to deliver the documents. The Court, with John Marshall as Chief Justice, found firstly that Madison’s refusal to deliver the commission was both illegal and remediable. Nonetheless, the Court stopped short of compelling Madison (by writ of mandamus) to hand over Marbury’s commission, instead holding that the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court’s original jurisdiction beyond that which Article III established. The petition was therefore denied.”
With this as a backdrop, I ponder the question of “why?” Why do we still follow judicial review? Is judicial review the way our founders intended it? What would we do without judicial review? Is Judicial Review still necessary today? I’m not meaning to give my opinion in this post. All I want to do is to create a discussion of this very important concept. Understanding the history and importance of judicial review will help one analyze its effectiveness today.
Do you believe that judicial review is important in today’s Republic? We’d love to hear your thoughts on this issue.
Until Next Time,
David A. Standridge
