The Power of Judicial Review

The Judicial Branch is the balancing factor of the Government. It is the listener of the people of the US and it decides on all matters regarding the people. It "interprets the nation's law" (World Book 141). Being able to interpret the law gives the Judicial branch a special kind of power. One of which the Executive Branch and the Legislative Branch do not possess. The Judicial branch decides when a law has been broken, to what extent, and how to punish the criminal act. And that is what makes it the strongest branch.

Marbury v. Madison has been hailed as one of the most significant cases that the Supreme Court has ruled upon. In this paper, I will explain the origins and background in the case, discuss the major Constitutional issues it raised, and outline the major points of the courts decision. I will also explain the significance of this key decision.

In what is considered the first anti-federalist paper, “Brutus” writes: “In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other. This will retard the operations of government, and prevent such conclusions as will promote the public good.” This clash of ideas, opinions and lifestyles, he argued, did not lend itself to any overarching federal government. He continues: “The United States includes a variety of climates. The productions of the different parts of the union are very variant, and their interests, of consequence, diverse. Their manners and habits differ as much as their climates and productions; and their sentiments are by no means coincident. The laws and customs of the several states are, in many respects, very diverse, and in some opposite; each would be in favor of its own interests and customs, and, of consequence, a legislature, formed of representatives from the respective parts, would not only be too numerous to act with any care or decision, but would be composed of such heterogenous and discordant principles, as would constantly be contending with each other” (Anti-Federalist 1). The Federal Farmer adds: “Different laws, customs, and opinions exist in the different states, which by a uniform system of laws would be

With the young nation of America entered into the 19th century, there were still major issues when it came to the balance of powers of the different government branches. The status of judicial review in the Supreme Court was never pressed upon or given any real structure to. The power of judicial review had appeared many times in history before the set up of the Supreme Court as, in England, Chief Justice of the Common Pleas Sir Edward Coke made the originated the idea . During the ruling of the case of Dr. Bonham’s Case, Coke found that the London College of Physicians had no right to levy fines against anyone who violated their rules. He would later go on to state that, “no person should be a judge in his own case” (Fletcher 12). The act was revolutionary at the time as it set the notion of that an official body of government was needed to give fair governess to the people. The idea would pop up once in a while in events such as the Constitutional Convention where records that were kept by the textbook University of Chicago Law Review saw that “13 out of the 15 delegates made statements that were in support of the idea of judicial review” (Prakash 123). The interesting part about the quote is that it states that the idea of judicial review was in place in America many years before the actually case of Marbury v. Madison. Even in the Federalist Papers No. 78 which was published in May 28, 1788, by Alexander Hamilton, went into lengthy discussion about judicial review. In

The next paragraph that Hamilton wrote defined what the judiciary system is about. He first explains the roles of the Executive and legislature saying “the Executive not only dispenses the honors, but holds the sword of the community” and “the legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.” Directly following these statements, Hamilton described the judiciary by writing, “the judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Hamilton wrote that the judiciary’s job was “merely judgment.” The judiciary has the power of judgment over the different levels of government, including state governments. It has the power to judge whether the laws made by these governments are constitutional or the antithesis.

In 1787-1788 federalist essays came to life thanks to James Madison, John Jay, and Alexander Hamilton under the alias of “Publius”. This paper delves into the motivations of James Madison and how classical republicanism aided in the argument for the ratification.

The primary source is Federalist paper No. 10, which is a the first of James Madison’s contributions to the series of essays known as the Federalist Papers. This essay is a highly regarded paper among the collection. The Federalist No. 10 is merely rhetoric used to rationalize the benefits of a new system of government, explain how the new union will be constructed and most crucial to the essay, sway public opinion to support the ratification of the new constitution. This particular primary source is imperative to understanding the complexity of the United States government at the time of its birth as well as now. Madison makes an argument that the expansion of the federal government is necessary to protect liberty against the excess of democracy. The document reveals the advantages of a Republic and serves as an explanation as to why the U.S. espouses a Republican form of government and the Constitution.

The Federalist Papers written by James Madison, Alexander Hamilton, and John Jay are one of the greatest collections of literature from the time period of 1787 to 1788 when the Constitution was being ratified by the states. This collection of eighty-five essays was written for the states, to help them better understand and grasp a concept of why they should vote for the ratification of The Constitution. Why did the Madison, Hamilton, and Jay write The Federalist Papers and what is there underlying meaning? Who were James Madison, Alexander Hamilton, and John Jay? What was Madison trying to say in regards to the concept of federalism, separation of powers, republics and ratifying the Constitution and why? Each of these questions can be further explored and answered in Madison’s Federalist #51. By analyzing #51, with the addition of #10, clarity can be gained on the meaning behind these essays and there obvious importance to the nation’s history.

Robert Yates’, an anti-Federalist and author of both Brutus no.11 and 12, main concern associated with the power of elected Federal Branches. Robert Yates opposed the ratification of the Constitution, and had been convinced that the federal judges would interpret the Constitution broadly, “so as to expand their jurisdiction and influence, and that Congress would be supportive of such loose interpretations because they would ultimately expand federal legislative power as well. Judicial interpretation would become the vehicle for expanding federal power. (P.57)” He thought that more power should be held within the states. Yates had a great amount of concern that the Supreme Court would have more power than the Constitution. In Brutus no.11, Yates aims his focus towards the overall power of the judiciary branch and protecting the individual. He claimed the Judiciary branch had no accountability, meaning in hindsight, they could basically do whatever they pleased simply because they had no one to keep them in check, asides from the President. In Brutus no.11, he explains; “The opinions of the Supreme Court, whatever they may be, will have the force of law; because there is no power provided in the Constitution, that can correct their errors, or control their adjudications. (Pg.57)” Yates

Another premise Hamilton presents in supporting his claim that judiciary stands “the least dangerous” branch is political rights and liberties of citizens. He emphasizes on the independence of judiciary from other branches that will ensure the political rights and liberties of citizens are not endangered. He believes the judiciary branch neither has the illicit jurisdiction nor the implementing power to jeopardize the political rights and liberties of people. He makes it clear that “the general liberty of the people can never be endangered from that quarter [judiciary]” and this will not be the case if “the power of judging be not separated from the legislative and executive powers”. However, He believes the judiciary on occasions may treat an individual unfairly, but in general the courts will never threaten liberties. Also, Hamilton argues that Constitution grants Congress the authority to establish federal courts in addition to the Supreme Court and to determine most of the jurisdiction of all federal courts. Hence, the judiciary branch will not be able have rulings that will endanger the basic rights political rights of citizens.

A landmark case in United States Law and the basis for the exercise of judicial review in the United States,

Federalist No. 78 is an essay by Alexander Hamilton. It was written to analyze and justify the structure of the judiciary under the Constitution of the United States. Hamilton addressed the concerns of Anti-Federalists in regards to the power of the Judiciary. The Anti- Federalist believed the constitution made the judges too independent; implying that “There is no power above them, to control any of their decisions.” However, Hamilton viewed the Judicial Branch in a much inferior and less important role of all branches. Hamilton says, that the Judiciary branch of the proposed government would be the weakest of the three because it had "no influence over either the sword or the purse” This indicates that the Judicial branch has no control of

Hamilton discusses the powers of the judiciary in the Federalist papers essay no 78. He asserts that the judicial arm of the government is the least likely to threaten liberty and property of the citizens. Part of this assertion was brought about by his conviction and beliefs, that the judiciary was the weakest branch of government. The constitution spells out three branches of government which are independent of each other and perform different roles to the benefit of citizens. This document also spells out the checks and balances that help in regulating the three branches. For the judiciary, however, its nature of the roles makes it weakest. It also means that the role that judiciary plays in ensuring justice is meted upon every individual in the country makes it the least arm of government that can threaten individuals’ political rights.

Even with a representative government, its separation of powers, and a system of checks and balances, Madison also favored the implementation of a written Constitution, detailing the limits of the federal government’s power. The written Constitution of the United States created a paradigm shift in the way the world viewed Constitutions. It created a tangible means whereby citizens could hold the government accountable. While the Constitution of the United States accomplished many goals in regards to establishing the role of the federal government, it left much open to

The judicial branch carries the most power because they have the ability to settle disagreements surrounding the meaning of law.The judicial branch takes power and has the ability to rectify disagreements enclosing the meaning of law.’’Decide if laws or actions by the president are constitutional’’