How would the legal history of the US change if Malbury vs Madison, somehow, didn't establish Judicial Review? Would the Supreme Court eventually assert that power, or would it just sorta disappear?
WI: No Process of Judicial Review
- Thread starter Roland Traveler
- Start date
Well, something to keep in mind about Marbury was that the Court ducked the immediate issue of Marbury not getting the appointment he was promised, because the Democratic-Republicans weren't the least bit interested in giving it to him, and wouldn't have listened if the Court said they had to. And really, that issue of consent is what it comes down to - there wasn't yet the precedent that the Court was sacred and above partisan politics, so they had no power that politicians weren't willingly ceding them. Marshall didn't exactly make up the whole doctrine of judicial review for this case, of course - it'd been discussed before, and I'd argue that the Supreme Court was always going to assert that it existed, simply because accepting that truth would make them more powerful. The question is whether or not it becomes accepted, and that's a more gradual issue for the politics of the 19th Century - Marbury didn't settle the issue, and so the matter not coming up in the case wouldn't resolve things either.
GeographyDude
Gone Fishin'
I'd be interested in how a nation's top courts work in a Parliamentary system such as the United Kingdom.
And how would the legal history of our US be? Better, I'd say! With a few notable exceptions, our Supreme Court has generally sided with the powerful. Perhaps the most notable cases when they twice struck down child labor laws in the early 1900s. But a whole slew of striking down overtime laws, etc, etc, etc.
It's a common misconception, but Marbury did not actually establish the Supreme Court's power of judicial review. The first case where the Court exercised judicial review was Hylton v. US where the Court heard a challenege to the Carriage Act of 1794 on the grounds that it was a direct tax, and therefore should have been apportioned among the states. The Court upheld the constitutionality of the tax, but the Justices were quite clear in their statements (the Justices still delivered their opinions individually at the time) that they were evaluating whether a federal law was acceptable under the Constitution. To my knowledge, only Justice Chase came close to questioning that by saying that it was unecessary, at the time in question, to determine if the Court had the power to invalidate an Act of Congress. However, he was the only one to say that so I think it is fairly clear that the Court was understood to have the power to invalidate the Act if it had determined it was unconstitutional. Moreover, lower federal courts did hold federal laws unconstitutional prior to Marbury, they just never made it to the Supreme Court. Plus, if you look at legal theory and practice at the time, judicial review is clearly an implied power of the Supreme Court. The Supremacy Clause of Article VI defines the Constitution as the US' fundamental law, and as such all other laws have to be inaccordance with it. Article III determines the Court's jurisdiction and gives it the "judicial power" of the US. This gives it the responsibility of ensuring the constitutionality of federal, and state, laws. That was consistent with the practice of most state courts at the time, and judicial review was described as a power of the federal judiciary in the debates surrounding the ratification of the Constitution. Basically, Marbury is seen as so significant because Chief Justice Marshall wrote the decision that way, and made it seem much more revolutionary than the case actually was.
I'd disagree with the idea that a more progressive legal tradition is necessarily a "better" one. While the Supreme Court has made bad decisions, most of the time it strikes down progressive or liberal legislation it has been correct in doing so from a legal standpoint. The Court's job is to apply the law and the Constitution, not to advance a particular social and political policy, no matter how desirable said policies may be. Further, I think that a United States without judicial review is going to be much less secure in terms of rights, be they state rights, personal rights, civil rights, etc. If the courts cannot hold the legislature and the executive responsible and restrict them to the Constitution, then there's really nothing securing the Constitution besides tradition and custom. This has worked in the United Kingdom, but I don't think we should assume it would work in the US, especially not at the time in question. In fact, I think there's a much stronger case for constitutional restrictions breaking down fairly quickly without it.
I'd disagree with the idea that a more progressive legal tradition is necessarily a "better" one. While the Supreme Court has made bad decisions, most of the time it strikes down progressive or liberal legislation it has been correct in doing so from a legal standpoint. The Court's job is to apply the law and the Constitution, not to advance a particular social and political policy, no matter how desirable said policies may be. Further, I think that a United States without judicial review is going to be much less secure in terms of rights, be they state rights, personal rights, civil rights, etc. If the courts cannot hold the legislature and the executive responsible and restrict them to the Constitution, then there's really nothing securing the Constitution besides tradition and custom. This has worked in the United Kingdom, but I don't think we should assume it would work in the US, especially not at the time in question. In fact, I think there's a much stronger case for constitutional restrictions breaking down fairly quickly without it.
GeographyDude
Gone Fishin'
In my moral universe, the rights and welfare of individual persons trump abstract legal principles. Now, the interesting thing is that we'd probably agree on what many (most?) of the bum decisions have been. I guess I just go further in saying the Supreme Court in general has been a bust, and I guess I'm more confident in saying there probably are better alternatives if we look, for example, at the UK and a bunch of other countries, yes, we probably can do a better job of protecting individual rights, as well as well-functioning federalism (note: and I don't consider the bad ol' days of southern states excluding the participation of their African-American citizens to be well-functioning federalism!).
Okay, we have the 1918 and 1922 Supreme Court decisions in which they struck down child labor laws, seriously out of step with evolving social values.
Then there's the decision famous for Oliver Wendell Holmes, Jr. laying down the "clear and present danger" test for free speech and using the analogy that it's not protected free speech for someone to yell fire in a crowded theater because there'd be no time for additional speech to remedy the bad speech. Well, the citizen lost in that case. This is the case Schenck v. United States (1919). The Court ruled that a socialist mailing anti-war pamphlets to young men met the "clear and present danger" test ? ?
Yes, this was the hysteria of World War I and Supreme Court wants to do their part and show they're just as much a part of the team as anyone else, but they're supposed to be a bulwark against this kind of stuff. Instead, we get a bum result, in spite of the colorful quotes.
I don't think the Supreme Court started coming down in favor of freedom of speech and freedom of religion until later in the 1900s.
I lay a lot of the blame on abstract formalism.
No, I'm not a lawyer, just a guy who's read some history, but it seems to me that they make a lot of decisions divorced from real people and real circumstances.
I'd rather have an honest pragmatic conservative making decisions than an abstract formalist, and I say this as a leftie progressive!
And in general, I don't think we should view ourselves as stuck. These days in the early 21st century, we have a Supreme Court which makes a goodly number of pro-corporate decisions, Citizens United probably being first and foremost among them. In the short-term, all we can do is be active as citizens to get better nominees and for the Senate to do a better job either confirming or rejecting. In the longer arc, I don't think we should be afraid of changing the institution.
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I think is the crux of our disagreement. I place tremendous value on the rights and welfare of individuals, but that is a personal and subjective position. The values I hold are not necessarily the same as those held by others, nor are they inherently better or worse than other sets of values. I hold the ones I think are best, but as I've said that is ultimately a personal judgement. So, if the Court were to prioritize a certain set of values over the law, then, while it would be advancing an agenda some would approve of, it would be supplanting its ultimate task of ensuring the rule of law and justice. Basically, if the Court, or any court, does not apply the law, then it is really just imposing its own values and whims and that is emphatically not justice. This isn't to say that there aren't laws I don't like or that courts can make errors. Both are absolutely true. But as long as court applies the law and does so fairly, even if its a law I happen to dislike, the court is being just.
Very true. Public opinion and values had shifted in favor of regulating child labor by that time. However, that doesn't change the fact that the federal gvernment's attempts to regulate it, while in keeping with public sentiment, exceeded the power of the federal government under the Constitution. The fact that something is popular doesn't excuse it being unconstitutional. Moreover, the fact that te Child Labor Amendment, which would have given the federal government the power in question, failed to get enough support from the states for ratification would seem to indicate that federal child labor regulation wasn't as popular as it might seem. Apparently, people were okay with that proceeding on a state level.
Free speech jurisprudence is a bit of a mess, as it isn't entirely clear if the Court has overruled Schenck or not. Officially, it is still good law but the Court has moved away from certain aspects of the decision. That said, I think the World War 1 speech cases are actually a good example of why the Court should not include extra-legal considerations when deciding a case. depending on your perspective, the Court may have strayed from proper First Ammendment in those cases by falling to war hysteria.
However, I think it is a mistake to characterize the Court as uniformly weak on freedom of speech and religion in the period. In 1921 the Supreme Court decided in favor of Benjamin Gitlow in Gitlow v. New York by holding that New York's statute violated the Constitution. This was the first time the Court had ever applied the Bill of Rights to the states and it opened the door to "incorporating" the entire thing. I would consider that one of the most important cases for citizens' liberties and rights.
I agree, the Supreme Court does make many, if not most, of its decisions divorced from real people's experiences. However, I would say that is a good thing. Ultimately, the job of the Supreme Court is simply to interpret the law and the Constitution (and to exercise limited original jurisdiction, but that doesn't really have any bearing on this discussion). What the public thinks or experiences has no place in that interpretation because the law is what it is regardless of if it is popular or not. Popular considerations are unquestionably relevant to the legislature when it creates law, but they cease to be once the law is made. Let me put it another way: The Supreme Court decides if a law is permissible, not if it is a good law. The latter question is completely irelevant to their decision (or at least it should be. That certainly hasn't always been the case.).
We may have slightly different political identifications, I agree unequivocally with the sentiment. I would rather have a pragmatist than an ideologue of any political wing.
While I think we are currently surrounded by a lot of unsupported hysteria and hyperbole regarding the Surpeme Court, and especially its pro-corporate decisions, and I'd argue a lot of what people think they know about it is incorrect, I am no fan of Citizens United. That said, I am far from convinced the Court's ruling was incorrect. As I've said before, the simple fact that I don't like a ruling or a law does not mean that law or ruling is wrong. The Supreme Court should apply law as it was supposed to be applied, regardless of if its a good law. If we don't like it, then we should change the law not the institution.
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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!
In other words, to claim it had no power of judicial review, the Court would have to declare a federal statute unconstitutional!
CaliGuy
Banned
Very interesting!
Of course, I would also like to point out that, in Federalist Paper No. 78, Alexander Hamilton envisioned the courts only striking down laws which are at an "irreconcilable variance" with the U.S. Constitution; indeed, I wonder how much things would have been different had Hamilton's view on this been adopted by the courts.
Well, another thing to keep in mind is that statutory interpretation isn't the same thing as judicial review, so they could theoretically use the former to argue against the latter. The question being why they'd limit their own power for any reason.
When Congress says "you have jurisdiction" (to review cases about the constitutionality of laws and either affirm or reverse the state court's decision) and the Court says "No, we don't" that decision is itself a form of judicial review. Indeed, that was the very point of *Marbury.* That is not statutory interpretation; it is finding the statute to be unconstitutional.
GeographyDude
Gone Fishin'
The child labor law the Court struck down in 1918 said that the products of child labor could not be shipped between states in interstate commerce.
As they said in one of the Paper Chase episodes, "a really brilliant jurist would have found a way." (this was a '70s movie which spun into a TV series)
On *Marbury*: Very few contemporaries commented on Marshall's discussion of judicial review--amazing as this may seem to later generations, the issue was just not that controversial at the time. 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." http://odur.let.rug.nl/~usa/P/tj3/writings/brf/jefl272.htm
GeographyDude
Gone Fishin'
So, only legislation which really jumps out at the justices as unconstitutional.Very interesting!
Of course, I would also like to point out that, in Federalist Paper No. 78, Alexander Hamilton envisioned the courts only striking down laws which are at an "irreconcilable variance" with the U.S. Constitution; indeed, I wonder how much things would have been different had Hamilton's view on this been adopted by the courts.
The challenge is that I'd very much like for the Court to let stand legislation regarding child labor but strike down legislation impinging on freedom of speech and freedom of religion. I think this would be defendable as the rights of individuals trumping the rights of corporations, just not sure how this might be phrased, either in the Constitution at the beginning or later added as an Amendment.
The job of the court is to adjudicate the law, not make it. If they came down on the side of the powerful, while doing their job, it is because the law favored the powerful.
Yell at Congress, not the Court.
GeographyDude
Gone Fishin'
Just from trying to be an active and engaged citizen and from reading newspapers and books which talk about Supreme Court decisions,
it sure looks like it often comes down to a single, one-dimensional 'logical' reason.
Honest to gosh, it does. And I know they're longish decisions which talk about all kinds of reasons pro and con, but when it gets down to the core of why the majority is making their decision, often it's the one-dimensional 'logical' reason.
An exception would be the Bakke decision in 1978, when the guy sued the University of California public university system over affirmation action for medical school. The Court ruled that diversity among students was a value and thus you could use race as a plus factor, but you couldn't run a hard quota.
This reasoning was more sophisticated that most SCOTUS reasoning, but they still missed the point. Bakke primarily was the victim of blatant age discrimination because he was a little bit older than the average medical school student, like just in his early 30s (for crying out loud!). Nowadays, a small number of medical students are even in their 40s and I understand most medical schools no longer practice age discrimination. They rather drew this lesson, but the Supreme Court did not.
Now, Bakke himself graduated middle of his medical school class in 1982. This kind of tickles me because it's thumbing its nose at medical school admissions and saying, you people don't know what you're doing near as much as you like to pretend you do!
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If the law conflicts with the Constitution, the Court is doing its job. If the law does not conflict with the Constitution, the Court is not doing its job.
CaliGuy
Banned
Whether or not a law conflicts with the Constitution is often a subjective question, though.
Thats why we have a Supreme Court. They should be as objective as possible.