493To get out of the predicament, Marshall applied the idea of judicial review. Although
the idea was not original to Marshall, the Court had never before exercised its authority
to rule on the constitutionality of a federal law. Marshall’s reasoning was quite clever:
the Court’s opinion said that Marbury was due his commission, but the Court could not
give him his job because the part of the Judiciary Act of 1789 that gave it the power to do
so was unconstitutional! The portion of the act in question was Section 13, which gave the
Court the power to issue orders (writs of mandamus) to anyone holding federal office.
Because this section expanded the original jurisdiction of the Supreme Court, Marshall
ruled that Congress had overstepped its bounds in passing it. The original jurisdiction of
the Court is clearly specified in the Constitution, so any attempt by Congress to change
that jurisdiction through legislation would be unconstitutional; the only way to change
original jurisdiction would be through a constitutional amendment.^10 Marshall writes:
“It is emphatically the province and duty of the judicial department to say what the law is.... If two laws conflict with each other, the courts must decide on the operation of each. So
if a law be in opposition to the Constitution... the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty.”^11
Judicial Review in Practice
Chief Justice Marshall and the Federalists lost the battle—poor Mr. Marbury never did
get his job, and Jefferson appointed the people he wanted to be justices of the peace—but
the Supreme Court won the war. By asserting its power to review the constitutionality of
laws passed by Congress, the Court became an equal partner in the institutional balance
of power. Although it would be more than 50 years until the Court would use judicial
review again to strike down a law passed by Congress (in the unfortunate 1857 Dred Scott
case, which concerned slavery and effectively led to the Civil War), the reasoning behind
Marbury has never been challenged by subsequent presidents or Congresses.^12
Interpreting federal laws may seem like a logical responsibility for the Supreme
Court, but what about state laws? Should the Supreme Court have final say over
them as well? The Constitution does not answer this question. But the supremacy
clause requires that the Constitution and national laws take precedence over state
constitutions and state laws when they conflict. The Judiciary Act of 1789 made it clear
that the Supreme Court would rule on these matters.
The contours of the relationship between the national government and the states
have been largely defined by the Supreme Court’s assertion of judicial review and its
willingness to intervene in matters of state law. For much of the nineteenth century,
the Court embraced dual federalism, in which the national government and the
states operated on two separate levels (see Chapter 3). Later the Court involved itself
more in state law as it moved toward a more active role for the national government in
regulating interstate commerce and using the Fourteenth Amendment to selectively
incorporate the amendments that constitute the Bill of Rights (see Chapter 4).
All in all, the Court has struck down more than 180 acts of Congress (and about 1,400
state laws). This sounds like a lot, but Congress passed more than 60,000 laws in its first
230 years. Over time, the Court has ruled on state laws in many important areas, including
civil liberties, desegregation and civil rights, abortion, privacy, redistricting, labor laws,
employment and discrimination, and business and environmental regulation.
When the Supreme Court strikes down a congressional or state law, it
engages in constitutional interpretation—that is, it determines that the
law is unconstitutional. But the Supreme Court also engages in statutory
interpretation—that is, it applies national and state laws to particular cases
(statutes are laws that are passed by legislatures). Often the language of aChief Justice John Marshall favored
the idea of judicial review and claimed
this power for the Court in the
Marbury v. Madison decision.constitutional interpretation
The process of determining
whether a piece of legislation or
governmental action is supported by
the Constitution.statutory interpretation
The various methods and tests used
by the courts for determining the
meaning of a law and applying it to
specific situations. Congress may
overturn the courts’ interpretation
by writing a new law; thus, it also
engages in statutory interpretation.Full_15_APT_64431_ch14_488-529.indd 493 16/11/18 1:44 PM