What would the Supreme Court look like without Marbury V. Madison?

Discussion in 'Alternate History Discussion: Before 1900' started by googoo4, May 15, 2019.

  1. googoo4 I'm Not The Hero This Site Needs Nor Deserves

    May 13, 2018
    Specifically, what if it just never happened, what would the Supreme Court's powers be, and would there be another case in the future where they would get judicial review? Also, what would change short-term in history?
  2. googoo4 I'm Not The Hero This Site Needs Nor Deserves

    May 13, 2018
    Well, so much for getting a fast response :/
  3. UCB79 Bookworm, 1st class

    Oct 8, 2017
    Off the top of my head I’d say it would de-
    pend on who succeeded John Marshall(I’m
    assuming googoo4 he’s still CJ ITTL). If it
    wasn’t a non-entity but someone of intell-
    igence & force, then perhaps s judicial re-
    view would have come later but nonetheless
    been established(I could see, with no MAR-
    BURY, it nonetheless becoming obvious @
    least to thinking Americans that it was needed).
    Last edited: May 19, 2019 at 10:21 PM
  4. Alcsentre Calanice Our Equivalent of Click Bait

    Aug 20, 2014
    Mimigernaford, Transrhenian Republic
    Judicial review is mentioned already in the Federalist Papers, so the idea was certainly around.
    UCB79 likes this.
  5. Mad Bad Rabbit Well-Known Member

    Aug 18, 2007
    They would rule on conflicting or confusing sections of the law, or how to apply the facts of a case to existing law; but would simply give up and dismiss the case if the law violated the Constitition, like they do now for "political questions" (see Goldwater v. Carter) Sorry, Congress will have to fix that, next case.
    googoo4 and Fabius Maximus like this.
  6. Nathan Bernacki Well-Known Member

    Dec 18, 2016
    Assuming this altered Supreme Court continues into the 1950s, how does that impact Brown VS Board of Education or even Roe VS Wade in the 1970s? Do segregation and abortion become 'state issues'?
  7. David T Well-Known Member

    Nov 8, 2007
    I have to keep on explaining three things:

    (1) Judicial review was *not* the aspect of *Marbury v. Madison* that created the most controversy or got the most public attention at the time--it was the Court's scolding of Jefferson (while at the same time Marshall was careful to avoid a confrontation by holding that the Court had no power to issue a writ of mandamus). Jefferson was later bitter about the case, but solely on account of Marshall's extended discussion of Marbury's right to his commission, which Jefferson characterized as merely an "obiter dissertation." https://www.loc.gov/rr/program/bib/ourdocs/marbury.html

    (2) The Court had already implicitly assumed the power of reviewing the constitutionality of federal statutes in *Hylton v. US* in 1796. http://caselaw.findlaw.com/us-supreme-court/3/171.html (To be sure, there the tax on carriages was upheld as *not* being a direct tax--but the point is that the Court assumed that it had the power to determine whether it was constitutional or not.)

    (3) It seems to me that Section 25 of the Judiciary Act of 1789 pretty clearly recognizes judicial review: "That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed in the Supreme Court of the United States upon a writ of error..." https://usa.usembassy.de/etexts/democrac/8.htm

    In other words, to claim it had no power of judicial review, the Court would have to declare a federal statute unconstitutional!