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Judiciary: The origins of judicial review, The

National Forum, Fall 1996 by Burger, Warren E

Lord Bryce, the noted English political thinker, once said that:

No feature of the government of the United States has awakened so much curiosity . . caused so much discussion, received so much admiration, and been more frequently misunderstood, than the duties assigned to the Supreme Court and the functions which it discharges in guarding the Ark of the Constitution.

In some quarters the Supreme Court's guardianship of that Ark probably has received more guarded praise than in distant places. Lord Bryce, of course, had reference to the doctrine of judicial review, sometimes described as the doctrine of judicial supremacy, in the interpretation of constitutional terms and principles.

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It is helpful to an understanding of the issues surrounding the unique role of the judiciary in the American constitutional system to examine one particular aspect. The setting in which Marbury v. Madison was decided in 1803, with all its momentous consequences for our country, is important. That great case had its antecedents in our colonial experience and its taproots in the declarations of fundamental rights of Englishmen dating back to the Magna Carta almost 500 years before our independence.

The colonial experience of living under a distant parliamentary system with no check on the legislative or executive, except that of popular will in a very limited way, led our Founding Fathers to feel strongly the need for limitations on all branches of government. They were skeptical if not suspicious of power. The intellectual spadework for the system ultimately adopted for our federal government had been done by such seventeenth- and eighteenth-century political theorists as Thomas Hobbes and John Locke. The great rationalist Montesquieu contributed the idea of a separation of powers within the government itself, with each branch acting as a kind of brake upon the others.

As the system worked, one of the functions exercised by the Supreme Court involves measuring executive or legislative action - or that of the states - against the Constitution whenever a challenge to such action is properly brought within the framework of a "case" or "controversy." The Supreme Court does not "reach out" for cases as the popular media occasionally imply; it can select cases for review, but a significant portion of the cases argued are appeals that the Court is required to review.

Some commentators on the development of the Constitution in the United States have suggested from time to time that the subject of judicial review of legislative action was not in the minds of the delegates to the Constitutional Convention in 1787. However, such an obviously important question could not have entirely eluded their attention. Some of the delegates, without doubt, looked to an independent judiciary with fixed tenure as a means of protecting the states and the people against the powers of the new national government, whose scope was as yet unseen and unknown and was therefore feared. Others, particularly the propertied classes, probably regarded a Supreme Court and an independent federal judiciary as a source of protection against the egalitarian, popular government that attracted considerable support as the French upheavals of the eighteenth century unfolded; Thomas Jefferson gave support to this trend. The delegates could not have failed to be aware that the exercise of such powers by the judiciary must in some way involve limitations on legislative and executive action that was contrary to fundamental law as expressed in the Constitution.

Some residual controversy remains as to the exercise of judicial review today, but it is largely as to scope, not as to authority. It is now accepted that the first significant exercise of the power by the Supreme Court in 1803 was not judicial usurpation as Jefferson charged. But when a case or controversy is properly brought before the Court on a claim that some govemmental action is contrary to the Constitution, someone must decide the issue: the Court must decide. Needless to say, the major challenges to the Court's power have occurred during those periods when, for whatever reason, the Supreme Court has been under attack for its role in contemporary affairs. As an example, many polemics as well as some of the most thoughtful and scholarly challenges were written during the 1930s when, to many of its critics, the Supreme Court represented the dead hand of the past, impeding legitimate experimentation and innovation while the legislature and the executive were trying to cope with a national economic crisis.

It is often assumed that the doctrine of "judicial review" was the invention of Chief Justice John Marshall in the most famous of all his opinions. It is true that Chief Justice Marshall first applied this keystone doctrine of our constitutional law in the Marbury case. But Marshall did not originate, and never claimed to have originated, a novel doctrine: he was well aware of the general acceptance of the idea that constitutional adjudication was inherent in the very nature of the separation of powers under our written Constitution. This is not to disparage Marshall, for he was the one who recognized the need to enunciate the doctrine as part of federal jurisprudence, and he seized - some have said he strained - to take the first opportunity to assert the power of the Court to measure an act of Congress by the yardstick of the Constitution. ...

Judiciary: The origins of judicial review, The

National Forum, Fall 1996 by Burger, Warren E

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