In all cases involving ambassadors, other ministers and consuls and in which a State is to be a party, the Supreme Court has jurisdiction in the first instance. In all the other cases mentioned above, the Supreme Court has jurisdiction to appeal, both in law and in fact, with these exceptions and according to the rules that Congress will adopt. This conclusion in no way implies the superiority of the judiciary over the legislative power. It only presupposes that the power of the people is superior to both; and that if the will of the legislature, declared in its statutes, is contrary to the will of the people proclaimed in the Constitution, judges should be governed by the Constitution and not by the former. They should regulate their decisions by basic laws and not by non-fundamental ones. [14] It can carry no weight to say that, under the pretext of abomination, the courts can substitute their own pleasure for the constitutional intentions of Parliament. This could also be the case with two conflicting laws; Or it might as well happen in every decision on a single law. The courts must explain the meaning of the law; And if they were inclined to exercise will rather than judgment, the consequence would also be that their pleasure would be replaced by that of the legislature. The observation, if it proved anything, would prove that there should be no judges different from this body. [14] The constitutional question concerned the jurisdiction of the Supreme Court to hear the case. [51] The Judiciary Act of 1789 gave the Supreme Court original jurisdiction over orders of mandamus. Under the Judiciary Act, the Supreme Court would have had jurisdiction over the Marbury case. However, the Constitution describes cases in which the Supreme Court has jurisdiction in the first instance and does not include cases of mandamus.

[52] The Judiciary Act was therefore intended to confer on the Supreme Court a jurisdiction that was “not constitutionally justified.” [53] 726 See detailed summary and citations on authority in G. Gunther, Constitutional Law 1–38 (12th ed. 1991); For comments on the legitimacy of judicial review, see L. Hand, The Bill Of Rights (1958); H. Wechsler, Principles, Politics, and Fundamental Law: Selected Essays 1–15 (1961); A. Bickel, The Least Dangerous Branch: The Supreme Court At The Bar Of Politics 1–33 (1962); R. Berger, Congress v. The Supreme Court (1969). For a detailed historical attack on judicial review, see 2 W. Crosskey, Politics and the Constitution in U.S.

History chs. 27–29 (1953), with which Hart, Book Review, 67 Harv. 1456 (1954). A brief overview of the ongoing debate on this topic, in a work that is now a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate over Judicial Review, 1790-1961, in C. Beard, The Supreme Court And The Constitution 1-34 (1962 reprint of 1938 ed.) and bibliography at 133-149. While much of the debate focuses on judicial review of congressional legislation, similar scrutiny of state laws has also sparked much controversy. Marbury posed a difficult problem for the court, which was then headed by Chief Justice John Marshall, the same person who had not delivered the orders when he was secretary of state. If Marshall`s court ordered James Madison to deliver the orders, Madison could ignore the order, indicating the court`s weakness. If the court rejected William Marbury`s claim, it would be considered weak.

Marshall considered that Marbury was indeed entitled to his commission. However, Marshall J. argued that the Justice Act of 1789 was unconstitutional because it sought to give the Supreme Court initial jurisdiction in cases where states or ambassadors were not involved. The decision therefore stipulated that federal courts could review the actions of Congress or the executive branch in court. The First Congress passed the Judicial Act of 1789, which established the lower federal courts and established the details of federal court jurisdiction. Section 25 of the Justice Act provides that the Supreme Court hears appeals from state courts if the state court declares a federal law invalid or if the state court upholds a state law against an allegation that state law violates the Constitution. This provision gave the Supreme Court the power to review state court decisions that affect the constitutionality of federal and state laws. The Courts Act therefore contained the concept of judicial review. I do not pretend to defend the law that has been the subject of controversy: it does not matter which law they have declared null and void; it is their usurpation of power to do this that I complain about, for I firmly deny that they have such power; Nor can they find anything in the Constitution, directly or implicitly, that supports them or gives them the right to exercise that power. [66] The U.S. Supreme Court seeks to avoid reviewing the constitutionality of a statute when the case pending before it could be decided on other grounds, an attitude and practice that illustrate judicial deference. Brandeis J.

put it this way (citations omitted):[77] Judicial review was discussed in at least seven of the thirteen state ratification conventions and mentioned by nearly two dozen delegates. In each of these conventions, delegates affirmed that the proposed constitution would allow the courts to exercise judicial review. There is no record of a delegate from a state signatory to the ratification convention pointing out that federal courts have no judicial review. [31] But it is not only with respect to constitutional violations that judicial independence can be an essential safeguard against the effects of occasional bad humour in society. These sometimes go no further than the violation of the private rights of some citizens by unjust and biased laws. Again, the firmness of the judiciary is of great importance in mitigating the severity and limitation of the application of these laws. Not only does it serve to mitigate the immediate calamity of those that may have been adopted, but it also serves as a check for the legislature by adopting it; who recognize that the obstacles to the success of an unjust intention are to be expected from the courts, and are somehow constrained by the grounds of injustice that they meditate to relativize their attempts. It is a circumstance that is destined to have more influence on the character of our governments than few people realize. After reviewing the founders` statements, one scholar concluded: “The evidence from the Constitutional Convention and state ratification conventions is overwhelming that the original public meaning of the term `judiciary` [in Article III] included the power to strike down unconstitutional laws.” [35] The arguments against ratification by anti-federalists agreed that the federal courts would have the power to control the courts, although the anti-federalists viewed this negatively.