Arguments for and against Judicial review under Marbury v. Madison

Arguments for and against Judicial review under Marbury v. Madison

1. Federalism Used to assert judicial review and supremacy

   1. VAWA 1994

   2. Lopex 1995 (core commerce power)

   3. Seminole Tribe 1996 (Congress does not have power to abrogate state sovereign immunity when it legislates purely under commerce power)

   4. Boerne 1997 (Section 5 of 14^th amendment)

2. Arguments against judicial review

   1. Marshall’s reference to history or text is lacking

      1. Marshall made no arguments based on history or legislative debates

      2. Marsh made no arguments based on democracy or representation of the people

      3. If the commissions had been for political positions like cabinet members then the non-deliverance would have been considered a political act and therefore non-reviewable by the court;

      4. Textualist - Nowhere is it written in the constitution that the court should have power of judicial review

   2. Imbalance of power – thwarting the democratic system - if court has judicial review then that gives them too much power. It is a usurpation of power

      1. Gives a non-elected branch of gov’t ultimate say on constitutional issues binding other branches.

      2. Madison didn’t think it would be legitimate for the judiciary to have this power, thought not politically credible in a democracy.

      3. Marbury is a usurpation of power the founders never intended to give. Constitutional supremacy was to be over the states, not a coequal branch of federal govt.

   3. What about other branches? Judiciary not the only branch that can protect citizens.

      1. Allows room for officials to exercise judgments about the violations of human rights.

      2. President has right and duty to exercise an indep view and veto legislation he doesn’t agree with, not inconsistent with Marbury.

   4. Courts are defective in protecting human rights. (Thayer, Jefferson)

      1. Judicial humility to avoid usurping the power of the legislature and the power should only be used when there is a rights violation. Should only be used in a judicial role, no congressional negative, always avoid political questions.

      2. When have case in controversy, judicial standard of review should be the rule of clear mistake.

         1. Judge should enforce act of legislature if there is any rational basis.

         2. Would allow progressive legislation to proceed, leaves most controversial issues in the hands of legislatures and Pres, elected representatives.

   5. Does not respect popular constitutionalism or majoritarian decisions.

   6. The structure of the gov’t – federalism (both vertical and horizontal) will enforce this. States can represent themselves politically – strong political actor - and don’t need the Court to go to bat for them.

   7. Restrained judiciary forces people to stand up for their rights.

      1. Forces congress to take leadership positions, not just pandering to the polls and relying on court to do dirty work.

      2. Keeps incentives in tact for legislature to act to resolve human rights abuses.

      3. Popular protest could vote bad leaders out of office.

   8. Aggressive judiciary leads to reactionary politics, not democratic resolutions.

      1. Changes may not take hold, increased level of resistance.

      2. Judiciary needs help from congress and executive to enforce judgments.

3. Arguments for judicial review

   1. Marshall - Judicial review is part and parcel of the nature of judicial power – judicial supremacy

      1. “It is emphatically the province of the judicial department to say what the law is (some supremacist courts stop the quote here) those who apply the rule of particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the court must decide on the operation of each.”

         1. There are different types of supremacy – the supremacy of the constitution over ordinary law.

         2. One way to tell if Congress is ignoring the constitution or considering it, is to look at the debates and see if Congress is putting the constitution first.

         3. So this is not total judicial supremacy – it is allowing for other branches of gov’t to be interpreting the constitution.

      2. The Supreme Court is needed b/c of its expertise, ability to confer finality (need to have issue resolved), independence – decision made by other entity rather than legislature.

   2. Marshall - A written constitution is a kind of higher law that requires judicial interpretation

      1. Once you have written text, it’s interpretation becomes a fine art that lawyers and judges are better at interpreting than legislatures.

      2. Does a written constitution mean that it can conflict with legislation – some form of disagreement would be expected?

         1. There may be something different about having a written constitution – assimilated constitutional law to ordinary law that might not have been what the colonial experience with constitutional interpretation may have warranted.

   3. Courts have a unique role in preserving fundamental values and ensuring stability

      1. Bickel – courts have ways of dealing with principles and enduring values that legislature don’t have.

      2. Legislatures are more subject to passing trends, immediate results, b/c they are subject to reelection.

      3. Courts will take a longer-term view of what is needed, rather than acting on expediency or just being results oriented. They are in a better position to balance stare decisis, need for stability and preservation of core values; with urgent pressing needs b/c they have a lifetime tenure – immune from constant shifts of public opinion.

      4. Courts can check vague and abstract statutes against real flesh and blood factual situations to test constitutionality in a way that the legislature can’t. -> But what about congressional fact-finding?

   4. Courts can better supervise inter- and intra-governmental relations

      1. Supervises federal system – relations between state gov’ts and among states themselves

         1. Can serve a role of protecting state power from federal intrusion? But can’t the states do that themselves? Is the judiciary needed to serve as an umpire vertically as well as horizontally?

      2. Internal national system, involving allocation of powers among legis, exec, and judicial branches

   5. Prevents always having to go back to the people for recourse against constitutional transgressions.

   6. Representation reinforcing process – policing procedural mechanisms to ensure democracy – a check against majoritarian politics (fed judges appointed for life so better insulated)

      1. Stone in Carolene Products

         1. When legislation restricts political processes which can ordinarily be expected to bring about repeal of undesirable legislation.”

         2. To protect discrete and insular minorities from discrimination and to ensure their participation in the pol process

      2. Ely

         1. Ely – when ins are choking off channels of political changes to ensure that they will stay in and the outs will stay out

            1. 
               Court has special expertise in area of procedure and that judicial review is consistent with majority rule b/c it is perfecting democracy.
               

         2. Though no one is actually denied a voice or vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system. (CITY OF BOERNE)

      3. Valid Interests protected (Ely)

         1. Protecting freedom of speech and freedom of press b/c they are critical to functioning of open and effective democ.

         2. Protects voting rights b/c franchise is central to participation in democratic process

         3. Protects minorities against defects of democratic process resulting from prejudice

   7. Judicial review will be limited to cases in which there are clear constitutional issues

      1. Like Chevron, Courts at that time made a point in stressing how clear constitutional issue was – that if there was any possible doubt they would defer to legislature.

      2. It was only when the conflict was clear enough that they suspected legislature was ignoring constitution and would not give deference.

   8. Ratcheting up – Katzenbach v. Morgan – Congress can act by granting more rights, but they can’t strip away more than we already have. Court needs to check against this case.

      1. Boerne says the opposite.

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