WI: Marbury v. Madison without judicial review?

[Aelita]

This is semi-relevant to a future TL I'm planning. But the essence of the question is pretty simple. In the landmark Supreme Court case Marbury v. Madison, Chief Justice Marshall essentially established for the first time the interpretation that Article III permitted the courts to nullify law that contradicted the Constitution.

It's rather interesting how he was able to do this. The ruling favored the new president's administration, (Marbury, the plaintiff in the case, had been appointed by Jefferson's predecessor, Adams, but his commission hadn't been delivered yet), but it did so under the grounds that the law the plaintiff had based his case on (granting SCOTUS the power to issue writs of manamus) was unconstitutional, because it altered the original jurisdiction of SCOTUS, something which is explicitly defined in Article III of the Constitution.

It was a highly politicized case, and who knows, a different Supreme Court chief justice or slightly different political pressures might have led to the Court never entering the domain of judicial review.

So what happens if there's no landmark ruling for judicial review? Does Congress slowly gain the customary ability to effectively amend constitutional questions by statute? Does someone else try to do it later? And without judicial review, does a firm culture of constitutionalism ever develop?

 

[NKVD]

You'd have to have Thomas Jefferson win the election of 1796. John Marshall is never nominated, but it's possible that the Supreme Court will grant itself the power of judicial review at some point later on.

Congress would probably decide Constitutional questions itself, like it did in the election of 1800.

 

[Westbrook]

It's the first-ever case of judicial activism!

Well, it makes the Court much less important in that it's not the final arbiter of what is "Constitutional." Looking at from a future angle, maybe the Court isn't so politicized?

 

[elder.wyrm]

Then it happens later in a different case.

Judicial review was a generally understood part of the checks between the three branches. Marbury v Madison just formalized that view.

The far more important and more controversial decisions made by Marshall were ones like McCulloch v Maryland and Dartmouth v Woodward.

 

[WCDouglas]

I agree, with all the Constitutional questions at some the Court, whether Federalist or Jeffersonian is going to create judical review. Afterall it already existed for contracts is it isn't a big leap to apply it to the Constitution.

One note, prior to Marbury, the view was that it was the President who decide Constitutionality. That was established by President Washington, in the first veto, with the Congress able to overide. Adams concurred, he seriously considered vetoing the Alien and Sedition Acts on Constitutionally (despite agreeing with the intend). What Jefferson's view was in unknown, as he didn't get the opportunity.

 

[Whanztastic]

What if the Attorney General is the one who decided the Constitutionality of a law? I doubt that it is a real possibility, would be interesting though.

EDIT: OH! And the DeptJust is its enforcement arm. Imagine an extremely convergent universe where J. Edgar Hoover is the enforcer of the constitution.

 

[Whanztastic]

Wow, I killed this thread