So Gorsuch’s nomination and upcoming vote has sparked several articles and questions about the role of the court. From the writings of several founding fathers, it was clear in their mind that the judciary wasn’t supposed to be as powerful as it is today. Today, the Supreme Court can strike down any law or regulation by declaring it unconstitutional. Many people attribute this power–called judicial review–to the case Marbury v. Madison, wherein the Chief Justice John Marshall wrote the following opinion:
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions.
All in all, Marshall’s argument makes sense. Article III of the Constitution grants the Judicial Branch–called the “Judicial Department” in the decision–original jurisdiction over all cases and “…have appellate jurisdiction.” Original jurisdiction means that the court has the power to hear the case for the first time which, according to section 13 of the Judiciary Act of 1789, Congress gave to petitioners in certain cases like Mr. Marbury. But Justice Marshall pointed out that Congress could not create a law that violated the U.S. Constitution according to Article III, Section 2, Clause 2 which lists the cases over which the Supreme Court has original jurisdiction, i.e. “…Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party….” Marshall points out that the Supremacy clause of the Constitution states it to be the supreme law of the land. Since the Constitution lays out what the court had original jurisdiction over, Congress would have had to amend the Constitution to change the court’s original jurisdiction. Naturally, people did not agree then and still don’t agree now. Jefferson, who was president at the time and whose Secretary of State, James Madison, refused to give Marbury his judicial commission, certainly disagreed.
You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
We hear this argument echoed today over and over, and naturally everyone lionizes Marbury v. Madison for ruining the judiciary. But Marbury v. Madison was not the first case where John Marshall used judicial review, and Marshall was working off of precedent, albeit precedent he had set. Hylton v. United States was a challenge of a tax that Hylton believed violated Article I, Section 2, Clause 3 and Article I, Section 9, Clause 3 of the Constitution. Marshall didn’t agree and the precedent for judicial review was set. Here Marshall argued that a law didn’t violate the Constitution. Naturally, no one batted an eye. Yet, after Marbury v. Madison, everyone loses their minds. Why they did when Hamilton–a friend and colleague of then Secretary Madison–wrote about this very issue in Federalist No. 78:
[T]he 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. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. 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
So the courts are supposed to, as Marshall said, “say what the law is….” But that enters a particular question that is almost never addressed, namely do the courts decide natural law or are they subject to it?