Origins of Judicial Review: Marbury v. Madison

During the more than two centuries since the ratification of the U.S. Constitution, two major issues have been central to our constitutional history. The first involves federalism, the relationship between the federal government in Washington and the states. Generally, the power of the federal government has grown over the course of American history. The second major issue in our constitutional history has been the rights of citizens. The Supreme Court inescapably played a central role in debates over both federalism and rights.

The Constitution spells out many of the powers, duties, and limits on the legislative and executive branches, but says very little about the role of the judicial branch. In the landmark case of Marbury v. Madison (1803), the Supreme Court asserted that it had the power of judicial review, which enabled the Court to determine whether laws and actions of the government were constitutional or in violation of the Constitution. In Chief Justice John Marshall's words, from the Court's opinion in the case, "It is emphatically the province and duty of the judicial department to say what the law is." The power of judicial review gave the Court the power and duty to declare laws that violated the Constitution void. Judicial review thus added enormously to the Court's power within the U.S. government. The Court would seldom use this power prior to the Civil War. In the late nineteenth century, however, the Court used the power of judicial review more frequently to protect business corporations from government regulation. In the twentieth century, the Court continued to exercise its power of judicial review frequently in order to define the powers and limits of government and to protect citizens' rights. Without the Court's power of judicial review, our Constitutional system of checks and balances between the three branches of government would operate differently, with only two branches, the legislative and executive, to check one another.