Marbury v. Madison Today

J. A. C. Grant

American Political Science Review, 1929, vol. 23, issue 3, 673-681

Abstract: In 1803 the Supreme Court, in an opinion written by Chief Justice Marshall, refused to enforce an act of Congress on the ground that it conflicted with the Constitution. This decision was noteworthy in that it was the first occasion on which the Supreme Court asserted such a right, and it has since come to be looked upon as the cornerstone of judicial supremacy.The accuracy of the Chief Justice's reasoning has been attacked on various grounds, and it has been pointed out that every argument used by him in favor of judicial review begins by assuming the whole ground in dispute. Very few authorities who have taken this view have asserted that the courts have usurped this power. Obviously nothing could be farther from the truth. A course of action which had the backing of nearly every influential member of the Constitutional Convention, which was frequently stated, generally without opposition, in the various ratifying conventions, and which was very clearly set forth in the Federalist, cannot be said to be a “usurpation of power” in any sense of the term. However, authorities do point out that the true explanation of this power of our courts is not to be found in the mere fact that we have a written constitution which is the “supreme law.” Marshall himself recognized this shortly after the Marbury case, when he gave equal weight to the “general principles which are common to our free institutions” along with “the particular provisions of the Constitution of the United States,” on the theory that “the nature of society and of government …. prescribe some limits to the legislative power.”

Date: 1929
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