Marbury v. Madison: Judicial Review and Judicial Supremacy [No. 86]
Articles,  Blog

Marbury v. Madison: Judicial Review and Judicial Supremacy [No. 86]


The term “judicial review” is nowhere in the
constitution, and it isn’t really to be found at the founding. In fact, the term judicial review doesn’t
come into common usage until the 20th century, and it’s about that time that Marbury versus
Madison assumes its significance as a supposedly great constitutional case. There are many cases before Marbury in which
the Supreme Court assumed that in a conflict between the higher law of the constitution
and a statute, a statute would be null and void if it conflicted with that higher law. Marbury versus Madison simply represents the
first time it finally held that a federal statute did, in fact, exceed the powers of
Congress, and therefore was unconstitutional and void. It was simply the first occasion on which
that power was used. It was not the first time that power had been
recognized by the Supreme Court. Marbury has sometimes been used to justify
what’s called judicial supremacy, and that’s the idea that the Supreme Court is somehow
above all of the other branches of government when it interprets the Constitution when in
fact, what the judicial power is is the power to decide cases and controversies that come
before the court. When a case comes before the court and a conflict
exists between the constitution and, let’s say, a statute, the Supreme Court has no choice
but to follow the higher law of the constitution. That is its duty, to follow the law. This does not mean that the Supreme Court’s
opinions in which they justify their outcomes, the decisions that they make, need to be followed
by all of the other branches of government as though they were a statute unto themselves. What needs to be respected is the judgments
of the Supreme Court. When they finally decide a case, the other
branches of government respect the judgments of the Supreme Court, but that’s not the same
thing as adhering to the opinions of the justices when they justify their judgments. The idea that Marbury versus Madison invented
the power of judicial review came about in the 20th century when people were trying to
illegitimate the power exercised by the Supreme Court to invalidate, at the time, progressive
legislation.

One Comment

  • Andy Spicer

    I really enjoy the content that you produce but I often find myself sighing in disappointment when I read a video title that particularly interests me and then see that it’s 3 or 4 min long. I realize that there is an audience for these shorts but I wish that you’d do longer, more thorough videos on these topics. This one is a particularly good example.

Leave a Reply

Your email address will not be published. Required fields are marked *