Status of the judicial power before Marbury Marbury v. Madison

secretary of state madison ordered president jefferson withhold commissions made @ last minute outgoing president adams.



sir edward coke

although power of judicial review said have originated marbury, concept of judicial review has older roots in united states, , possibly in england well. idea attributed english jurist edward coke , opinion in dr. bonham’s case, 8 co. rep. 107a (1610), although attribution has been called 1 of enduring myths of american constitutional law , theory, nothing of history . bonham s case not mentioned in marbury v. madison, , court later stated bonham s case did not make common law supreme on statutory law:

[n]otwithstanding attributed lord coke in bonham s case, 8 reporter, 115, 118a, omnipotence of parliament on common law absolute, against common right , reason. actual , practical security english liberty against legislative tyranny power of free public opinion represented commons.

coke s meaning has been disputed on years, example scholars contend coke meant construe statute without challenging parliamentary sovereignty. remarks seem suggestive of judicial review considered obiter dicta, rather part of rationale of case.

any notion courts declare statutes void defeated in england glorious revolution of 1688, when king james ii removed , elected parliament declared supreme. however, continued known in american colonies , @ bars of young states, coke s books influential. doctrine enshrined in state constitutions, , 1803 had been employed in both state , federal courts in actions dealing state statutes, insofar statutes conflicted language of state constitutions.

a number of legal scholars argue power of judicial review in united states predated marbury, , marbury merely first supreme court case exercise power existed , acknowledged. these scholars point statements judicial review made in constitutional convention , state ratifying conventions, statements judicial review in publications debating ratification, , court cases before marbury involved judicial review.

at constitutional convention in 1787, there number of references judicial review. fifteen delegates made statements power of federal courts review constitutionality of laws, 2 of them supporting idea.

likewise, @ state ratifying conventions, on 2 dozen delegates in @ least 7 states indicated under constitution, federal courts have power declare statutes unconstitutional. professors saikrishna prakash , john yoo point out, respect ratification of constitution, no scholar date has identified 1 participant in ratification fight argued constitution did not authorize judicial review of federal statutes. silence in face of numerous comments on other side revealing.

the concept of judicial review discussed in federalist papers. alexander hamilton asserted in federalist no. 78 under constitution, federal courts have not power, duty, examine constitutionality of statutes:

[t]he courts designed intermediate body between people , legislature, in order, among other things, keep latter within limits assigned authority. interpretation of laws proper , peculiar province of courts. constitution is, in fact, , must regarded judges as, fundamental law. it, therefore, belongs them ascertain meaning, meaning of particular act proceeding legislative body. if there should happen irreconcilable variance between two, has superior obligation , validity ought, of course, preferred; or, in other words, constitution ought preferred statute, intention of people intention of agents.

the opponents ratification, known anti-federalists, agreed federal courts have power declare statutes unconstitutional, concerned give federal courts power. robert yates argued: supreme court have right, independent of legislature, give construction constitution , every part of it, , there no power provided in system correct construction or away. if, therefore, legislature pass laws, inconsistent sense judges put upon constitution, declare void.

a number of courts engaged in judicial review before marbury decided. @ time of constitutional convention, there had been cases in state courts of @ least 7 states involving judicial review of state statutes. between ratification of constitution in 1788 , supreme court s decision in marbury in 1803, judicial review used number of times in both state , federal courts. 1 scholar counted thirty-one cases during period in courts found statutes unconstitutional, concluding: sheer number of these decisions not belies notion institution of judicial review created chief justice marshall in marbury, reflects widespread acceptance , application of doctrine.

scholars have pointed out supreme court had engaged in judicial review before marbury, although had not struck down statute in question because concluded statute constitutional. in hylton v. united states, 3 u.s. (3 dall.) 171 (1796), court upheld federal tax on carriages against claim tax violated direct tax provision of constitution. therefore, concept of judicial review familiar before marbury.

however, important note nothing in text of constitution explicitly authorized power of judicial review, despite persistent fears voiced anti-federalists on power of new federal court system:

the judicial power shall extend cases, in law , equity, arising under constitution, laws of united states, , treaties made, or shall made, under authority; cases affecting ambassadors, other public ministers , consuls; cases of admiralty , maritime jurisdiction; controversies united states shall party; controversies between 2 or more states; between state , citizens of state, between citizens of different states, between citizens of same state claiming lands under grants of different states, , between state, or citizens thereof, , foreign states, citizens or subjects.