Who established the role of the Supreme Court in judicial review

John Marshall (1755–1835), the fourth chief justice of the United States, served on the Supreme Court for 34 years. He is the longest serving chief justice in Court history. He remains one of the most honored members in Court history. During his tenure (1801–1835), the Court vastly expanded the role of the national government at the expense of states’ rights advocates and broadly interpreted the legislative, executive, and judicial powers that the founders had enumerated in the Constitution.

The Court under Marshall’s leadership limited the reach of the First Amendment (and other provisions of the Bill of Rights) to actions of the national government. However, by establishing the role of the Court as a co-equal branch of government, Marshall laid the groundwork for this institution to protect First Amendment rights in the future, after they were also applied to the states through the due process clause of the Fourteenth Amendment.

Marshall worked extensively in the early American government

Born in Germantown, Virginia, to Thomas and Mary Marshall, John Marshall was one of 15 children. He was largely educated by his father at home. He briefly attended a series of law lectures at the College of William and Mary and passed the Virginia bar in 1780. This brief period of instruction reinforced the knowledge he had gained earlier in life through reading books and interacting with political leaders.

As a soldier in the American Revolution, Marshall worked extensively with George Washington and held the rank of captain when he left the Continental Army in 1781. He served in the Virginia House of Delegates at various times between 1782 and 1796 and was a recorder for the Richmond City Hustings Court from 1785 to 1788.

He worked with James Madison and other delegates at the Virginia Ratifying Convention in 1788 in support of the new Constitution. Marshall was among the more prominent members of the Federalist Party who opposed the adoption of the Sedition Act of 1798. He also served as a minister to France (1797–1798), as a member of the U.S. House of Representatives (1799–1800), and as President John Adams’s secretary of state (1800–1801).

Chief Justice John Marshall projected a sense of power and stature in leading the high court that had been absent until his tenure. He strengthened the Court's position as coequal with the legislative and executive branches of government and established the Court’s power of judicial review in the political system. (Image via Wikimedia Commons, Artist: Alonzo Chappel, public domain)

Marshall projected a sense of power over the Court

Adams appointed Marshall as chief justice of the United States in 1801 after Oliver Ellsworth resigned and John Jay declined the position. As chief justice, Marshall projected a sense of power and stature in leading the high court that had been absent until then. He wrote many of the Court’s decisions during his tenure as chief justice. He also strongly encouraged other justices to refrain from writing separate opinions from the decision of the Court.

Marshall made the Court a coequal branch and established judicial review

Marshall’s ingenious legal interpretations had two effects. They strengthened the Court’s position as a coequal with the legislative and executive branches of government, and they established the Court’s power of judicial review in the political system.

In a landmark case, Marbury v. Madison (1803), Marshall ruled that acts of Congress can be reviewed and struck down if the Court deems them to be unconstitutional. This power of judicial review allowed Marshall to substantiate the Court’s power by ruling that section 13 of the Judiciary Act of 1789 was void and violated Article 3 of the Constitution. Without this power, the provisions within the First Amendment and elsewhere in the Bill of Rights would not have had nearly the impact they have had in American history.

Marshall reinforced the national goverment's power over the states

Marshall’s legal skill further reinforced the national government’s power over the states. The Supreme Court’s decision in McCulloch v. Maryland (1819), upholding the constitutionality of the national bank, broadly interpreted the “necessary and proper” clause of Article 1, section 8 of the Constitution. Marshall believed this clause provided the basis for additional “implied powers” to belong to Congress, and he did not believe that states had the power to frustrate such powers by taxing federal institutions.

When Marshall was chief justice, the First Amendment and other provisions of the Bill of Rights were understood to limit only the national government. Marshall affirmed this understanding in Barron v. Baltimore (1833), where he argued that the purpose of the Bill of Rights had been to limit the national government rather than the states. The Fourteenth Amendment and the doctrine of selective incorporation have extended the vast majority of the provisions in the Bill of Rights, including all provisions of the First Amendment, to state and local governments.

Chief Justice John Marshall reinforced the national goverment's power over the states and introduced the concept of "implied powers" in the Constitution. When Marshall was chief justice, the First Amendment and other provisions of the Bill of Rights were understood to limit only the national government. However, he Fourteenth Amendment and the doctrine of selective incorporation have extended the vast majority of the provisions in the Bill of Rights, including all provisions of the First Amendment, to state and local governments. (Image via Viriginia Museum of Fine Arts, Artist: Rembrandt Peale, 1834, public domain)

Marshall Court set many precedents

The Marshall Court set precedents for numerous other issues, while at the same time maintaining this dual theme of enhancing the Court’s position and reinforcing national supremacy. Several cases dealt with the commerce clause in Article 1 of the Constitution, which vests all powers to regulate commerce in Congress.

For instance, the Fletcher v. Peck (1810) decision was a blow against states’ rights advocates, while at the same time it established the precedent for protecting individual property rights and contracts. Dartmouth College v. Woodward (1819) reaffirmed the Fletcher decision by ruling that the Supreme Court could strike down state laws, but it focused on those specifically related to states’ regulation of corporations. In Gibbons v. Ogden (1824), the Court bolstered the commerce clause by prohibiting states from passing any laws that might interfere with the transportation of goods across state lines.

One of Marshall’s most notable commentaries comes from Marbury v. Madison (1803): ”The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”

This article was originally published in 2009. Daniel Baracskay teaches in the public administration program at Valdosta State University.

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Sweezy v. New Hampshire (1957) stands as the first U.S. Supreme Court case to expound upon the concept of academic freedom though some earlier cases mention it.

Most constitutional academic freedom issues today revolve around professors’ speech, students’ speech, faculty’s relations to government speech, and using affirmative action in student admissions. 

Although academic freedom is regularly invoked as a constitutional right under the First Amendment, the Court has never specifically enumerated it as one, and judicial opinions have not developed a consistent interpretation of constitutional academic freedom or pronounced a consistent framework to analyze such claims.

Introduction
In 1800 the Federalists and their candidate, President John Adams, lost the election to Thomas Jefferson.  Early in 1801 the lame-duck Federalist Congress enacted a controversial Judiciary Act that created 58 new judgeships, including 42 justiceships of the peace, for Adams to appoint.  Jefferson complained that the Federalists "have retired into the judiciary as a stronghold."  On the night March 3, 1801, John Marshall, acting as secretary of state, affixed the official seal to the commissions for the justices of the peace.  He did not, however, deliver the commissions.  The next day, after Thomas Jefferson was inaugurated, he directed the new secretary of state, James Madison, to withhold delivery of 17 of the 42 commissions, including that of William Marbury.  William Marbury sued for a writ of mandamus to require Madison to hand over his commission.

William Marbury The decision in Marbury's case, written by Chief Justice John Marshall (the very same John Marshall who affixed the seal to Marbury's commission--talk about a conflict of interest!) established and justified the power of judicial review.  It is the first case read by virtually every first-year law student and is generally considered the greatest of all landmark cases.  Marshall strained to reach his result.  The plain words of Section 13 of the Judiciary Act indicate that Marbury went to the wrong court or invoked the wrong statute (or both), but Marshall proceeded as if the suit were authorized by Section 13 and then declared the statute unconstitutional on the grounds that it purported to expand the Court's original jurisdiction in violation of Article III.  Marbury's suit was dismissed for lack of jurisdiction.  Marshall's decision--brilliant in its conception--allowed the Court to brand Jefferson a violator of civil rights without issuing an order that the President could have ignored.

Case
Marbury vs. Madison (1803)

Fragment from John Marshall's Handwritten Decision

Questions

1. Is judicial review a good idea? Should nine unelected judges be able to tell our elected representatives what they can and cannot do?
2. Are courts more likely to block an enlightened consensus with their adherence to outdated principles or to protect the politically weak from oppressive majorities?
3.  Are judges, protected with lifetime tenure and drawn generally from the educated class, more likely to be reflective and above the passing enthusiasms that drive legislative action?
4.  Does Marbury mean that legislators or members of the executive branch have no responsibility to judge the constitutionality of their own actions?
5.  Could we have a workable system of government without judicial review?

"The prime and most necessary function of the Court has been that of validation, not that of invalidation.  What a government of limited powers needs, at the beginning and forever, is some means of satisfying the people that it has taken all steps humanly possible to stay within its powers." --Professor Charles L. Black

Links
Marbury v. Madison Background & Players
(James Madison Univ.)

Judicial Review (Wikipedia) 1800-1809 American Events Timeline

John Marshall - Definer of a Nation

1803 Petition, Debate & Vote of Wm. Marbury & Others
(from Annals of Congress)

Pitching quoits

Quoits, Anyone?: The Personality Differences of John Marshall and Thomas Jefferson "[John Marshall] was proud of his skills in pitching quoits--a game involving a kind of round horseshoe--and could be observed at the Quoits Club in Richmond toward the end of his life downing Madeira and rum  punch, getting down on his hands and knees earnestly measuring the distance between his quoit and those of his opponents, and then shouting in unaffected happiness when he won.  It is hard to imagine the withdrawn and aristocratic Jefferson in a similar posture." --Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America (2006).

Chief Justice John Marshall

The Judiciary Act  (Section 13):

     The act to establish the judicial courts of the United States authorizes the supreme court "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."

Article III of Constitution
Section. 2 

     The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States; --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 

      In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.  

Original Intent & Judicial Review

The Constitution does not expressly provide for judicial review.  What should be made of this fact?  Does it suggest that the framers did not intend to give the courts such a power?  Not necessarily, although that is one explanation for its absence.  It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated.  A third possibility is that the framers didn't think that the issue would ever come up, because Congress would never pass legislation outside of its enumerated powers. 

Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review.  Of those that did so, nine generally supported the idea and two opposed. One delegate, James Wilson, argued that the courts should have the even broader power to strike down any unjust federal or state legislation.  It may also be worth noting that over half of the thirteen original states gave their own judges some power of judicial review.

Footnote: The Flying Fish Case John Adams T. Jefferson Vice President Thomas Jefferson opposed the 1799 order of President  Adams allowing the seizing of ships.

Many people know the first  Supreme Court decision to declare an act of Congress unconstitutional (It's Marbury , of course), but few people could identify the Court's first decision declaring Executive Branch action to be unconstitutional.  Little v Barreme (1804), called the Flying Fish case, involved an order by President John Adams, issued in 1799 during our brief war with France,  authorizing the Navy to seize ships bound for French ports.  The president's order was inconsistent with an act of Congress declaring the government to have no such authorization.  After a Navy Captain in December 1799 seized the Danish vessel, the Flying Fish , pursuant to Adams's order, the owners of the ship sued the captain for trespass in U. S. maritime court.  On appeal, C. J. Marshall rejected the captain's argument that he could not be sued because he was just following presidential orders.  The Court noted that commanders "act at their own peril" when they obey invalid orders--and the president's order was outside of his powers, given the congressional action.