JUDICIAL REVIEW OF ACTS OF CONGRESS
Judicial review of acts of Congress is not provided for in the Constitution in such explicit terms as is judicial review of State legislation, but it is nevertheless fairly evident that its existence is assumed. In the first place, the term "cases arising under the Constitution" is just as valid a textual basis for the one type of constitutional case as for the other; and, in the second place, it is clearly indicated that acts of Congress are not "supreme law of the land" unless they are "in pursuance of the Constitution," thus evoking a question which must be resolved in the first instance by State judges, when State legislation coming before them for enforcement is challenged in relation to "the supreme law of the land." Furthermore, most of the leading members of the Federal Convention are on record contemporaneously, though not always in the Convention itself, as accepting the idea.[258]
The argument for judicial review of acts of Congress was first elaborated in full by Alexander Hamilton in the Seventy-eighth Number of The Federalist while the adoption of the Constitution was pending. Said Hamilton: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their [legislative] agents."[259] It was also set forth as something commonly accepted by Justice Iredell in 1798 in Calder v. Bull[260] in the following words: "If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case." And between these two formulations of the doctrine, the membership of the Supreme Court had given it their sanction first individually, then as a body. In Hayburn's Case,[261] the Justices while on circuit court duty refused to administer the Invalid Pensions Act,[262] which authorized the circuit courts to dispose of pension applications subject to review by the Secretary of War and Congress on the ground that the federal courts could be assigned only those functions such as are properly judicial and to be performed in a judicial manner. In Hylton v. United States,[263] a made case in which Congress appropriated money to pay counsel on both sides of the argument, the Court passed on the constitutionality of the carriage tax and sustained it as valid, and in so doing tacitly assumed that it had the power to review Congressional acts.
All the above developments were, however, only preparatory. Judicial review of acts of Congress was made Constitutional Law, and thereby the cornerstone of American constitutionalism, by the decision of the Supreme Court, speaking through Chief Justice Marshall in the famous case of Marbury v. Madison[264] decided in February, 1803. The facts of the case briefly stated are that Marbury had been appointed a justice of the peace in the District of Columbia by John Adams almost at the close of his administration, and John Marshall who was serving simultaneously as Secretary of State failed to deliver to Marbury his commission which had been signed before the new administration had begun. One of the first acts of Jefferson was his instruction to Secretary of State Madison to withhold commissions to office which remained undelivered. Thereupon Marbury sought to compel Madison to deliver the commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction and in pursuance of section 13 of the Judiciary Act of 1789[265] which prescribed the original jurisdiction of the Court and authorized it to issue writs of mandamus "in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."
Marshall's Argument
In the portion of his opinion dealing with judicial review Marshall began his argument with the assumption that "the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness * * *" and, once established, these principles are fundamental. Second, the Government of the United States is limited in its powers by a written Constitution. The Constitution either "controls any legislative act repugnant to it; or, * * * the legislature may alter the Constitution by an ordinary act." But the Constitution is paramount law and written as such. "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. * * * If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply." To declare otherwise, the Chief Justice concluded, would be subversive of the very foundation of all written constitutions, would force the judges to close their eyes to the Constitution, and would make the judicial oath "a solemn mockery."[266] The Court must therefore look into some portions of the Constitution, and if they can open it at all, what part of it are they forbidden to read or obey? In conclusion the Chief Justice declared that the Constitution is mentioned first in the supremacy clause and that "the particular phraseology of the Constitution * * * confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, [of government] are bound by that instrument."[267]
Importance of Marbury v. Madison
The decision in Marbury v. Madison has never been disturbed, although it has often been criticized. Nor was its contemporary effect confined to the national field. From that time on judicial review by State courts of local legislation in relation to the local constitutions made rapid progress and was securely established in all States by 1850 under the influence not only of Marbury v. Madison, but also of early principles of judicial review established in the circuit courts of the United States.[268]