Judicial Review of Legislation, and Where It Came From

In one line

The American power to hold a statute void was inferred in 1803 from a written constitution of limited powers, and the Indian power was conferred by article 13.

In the wording a student can write in an exam: judicial review of legislation is the power of a court to declare a statute void for inconsistency with the constitution; it may be conferred expressly, as by article 13 of the Indian Constitution and section 52(1) of the Constitution Act 1982, or inferred from constitutional supremacy, as in Marbury v. Madison.

What Marbury actually decided

The facts. In the last days of the Adams administration, William Marbury was appointed a justice of the peace for the District of Columbia. His commission was signed and sealed but not delivered. The incoming Secretary of State, James Madison, withheld it. Marbury moved the Supreme Court directly for a mandamus, relying on section 13 of the Judiciary Act 1789.

The three questions Marshall CJ posed. Has the applicant a right to the commission he demands? If he has a right, and that right has been violated, do the laws of his country afford him a remedy? If they do afford him a remedy, is it a mandamus issuing from this court?

The three answers. Yes: the appointment was complete on signature and sealing, and Marbury had a vested legal right. Yes: where there is a legal right there is a legal remedy, and the government of the United States has been emphatically termed a government of laws and not of men. No: section 13, in so far as it purported to enlarge the Supreme Court's original jurisdiction beyond what Article III specifies, was repugnant to the Constitution.

The reasoning on review. A written constitution is either a superior paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts and alterable when the legislature pleases. If the former, a legislative act contrary to it is not law. And then the sentence the whole doctrine rests on: it is emphatically the province and duty of the judicial department to say what the law is.

What is often got wrong. The Court did not strike down a statute that anybody wanted; it declined jurisdiction. Marshall CJ established the power of review in the course of refusing to exercise a jurisdiction Congress had purported to give him, which is why the decision could not be defied.

And what came next was a long silence. The Court did not hold another Act of Congress unconstitutional until 1857, in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), where it held the eighth section of the Missouri Compromise Act of 1820 void as beyond the power of Congress over the territories, having already held that a person of African descent whose ancestors were sold as slaves was not a citizen within the meaning of the Constitution. Fifty four years separate the first exercise of the power from the second, and the second is the most discredited decision in the reports, which is worth saying whenever Marbury is presented as an unmixed achievement.