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Judicial Review: Federalist versus Republicans

Updated on November 19, 2012


Judicial Review: Federalist versus Republicans will be the author’s attempts to not only explain what judicial review is, but also explain the origins, and the political apathy leading up to the birth of judicial review. Judicial review was the conception of the major landmark case in American history known as Marbury v. Madison. This case involved William Marbury and four other associates who were appointed as peace justices to the District of Columbia by President John Adams in the last hour of his presidency, to make the appointment official a commission signed and sealed by the state department was to be delivered to Marbury and the other would be justices. The commissions would never be delivered and Marbury and company would file a petition in the Supreme Court.


In construction of this academic essay the author has incorporated a number of resources via the internet, James Pendergrast Memorial Library at Albany State University, Powder Springs Library, and the East Marietta Library both libraries are a part of the Cobb County Library system. The texts that have been useful in putting together this paper are: Winfield H. Rose’s Further Thoughts on "Marbury v. Madison," which can be found in JSTOR, also, Alan D. Hornstein’s Appellate Advocacy in a Nutshell, Geoffrey C. Hazard Jr.’s, and Michele Taruffo’s American Civil Procedure: An Introduction, andanother work involving Geoffrey C. Hazard Jr. this time working with author Fleming James in the book Civil Procedure.

Literature Review

The year is 1801; Ireland, England, Great Britain, and Scotland form the United Kingdom. Georgia would receive its first Jewish governor in the form of David Emanuel. This same year John Marshall would be appointed as United States Chief Justice. Massachusetts legislature would enact the very first state voter registration law. (Brain History, 2011) Fall of that year four men would walk into the United States Department of State, change the course of United States history and give birth to a concept known as judicial review.

Marbury, Ramsey, Harper, and Hole all made a trip to the United States Department of State, on a mission. That mission, obtain their commissions. In the last hour of his presidency, then President John Adams appointed the four men as Justices of the Peace for the District of Columbia. Signed in the last hour, under then Secretary of State John Marshall, the commissions disappeared. (Fleming James, 1985)

March 14, 1801, at this time in United States history that Thomas Jefferson and his Republicans would gain control of the White House. Marbury the Maryland native was a federalist, the rival party to the Republicans. When Marbury and company went to the United States Department of State to claim their commissions they did not receive them. On orders from President Thomas Jefferson, to then Secretary of State James Madison the commissions were not to be delivered.

Marbury and his accomplices would file a petition in the Supreme Court to demand that the Secretary of State be forced by order of the court to hand over the commissions. The basis for their defense the Judiciary Act of 1789. The court consisted of Chief Justice John Marshall, Justice Alfred Moore, Justice William Patterson, Justice William Cushing, and Justice

Bushrod Washington and Justice Samuel Chase. All appointed by either George Washington or John Adams.

The whole debacle that was Marbury v Madison had political implications. Thomas Jefferson viewed the actions by the Supreme Court on behalf of William Marbury as attack on the executive branch. To avenge this, President had congress repeal the “Circuit Court Act of 1801,” he would have the June and August term of the Supreme Court suspended, as well levied an impeachment versus a Supreme Court judge. This same year the “Judiciary Act of 1801” would also pass. It established ten new court districts, added three new circuit courts, added new judges, and gave the president power to appoint Judges. President Jefferson also made it his mission to stop the appointment of “Midnight Judges,” those judges who were appointed by the president in their last hour of presidency. (Hornstein, 1984)

The court would hear this case on argued Friday February 11, 1803, with the decision presented on Wednesday February 23, 1803. Charles Lee would represent Marbury and company as their attorney.

The court had two problems, the first being provided the court did decide in favor of Marbury, the court would have no way to enforce they ruling, Madison could ignore the decision handed down by the court, ultimately making the court look weak. The court did not want to seem like they wanted to vindicate the president, which was the second problem. (Fleming James, 1985)

In making their decision the court also had three questions to answer. Question one, “Does Marbury even have a right to his commission?” Question two, “If Marbury does have a right to his commission, and his rights were violated, does he receive protection? Third and final question, “If Marbury is eligible for protection, what can the Supreme Court do for Marbury and his associates?”

The answer for the first two questions is a definite yes. It is the third question, which is the most crucial. The court could vote in favor of Marbury, but how would they make Secretary Madison surrender the document? Furthermore there is question of section 13 of the Judiciary Act, giving congress the jurisdiction to do so. Article 3 section 2 of the constitution gives the Supreme Court jurisdiction in a case such as this, provided that the case came from an appellate or lower court. Marbury’s case originated in the Supreme Court and, the justices would find that section 13 of the Judiciary Act contradicts the constitution.If one were to argue in defense of section 13, they would contain that it says it can issue a court order. Section 13 states “In cases warranted by principle and usages of the law.” The justices arguing in favor of section 13 would say that section 13 does not specify the nature of the case, does not say if the case should originate in the Supreme Court or on appeal. This all depends on how section 13 is interpreted. (Geoffrey C. Hazard Jr., 1993)

Since section 13 contradicts the constitution, the Supreme Court decided that it had no jurisdiction in the case of Marbury v. Madison. Marbury and his companions lost, and never received their commissions. However, Chief Justice John Marshall would use this case to answer a question. “Who is to say, what the constitution says?” With the ruling in Marbury v. Madison Chief Justice John Marshall established the Supreme Court, as the proverbial authority on what the constitutions says. Thus Judicial Review was born.

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” (Fleming James, 1985)

Chief Justice John Marshall

That year in 1803 President Thomas Jefferson and his republicans would have their victory over Marbury and his federalist.

Judicial Review is the power of a court to review the actions of a group in terms of lawfulness or constitutionality. It has three main, functions first it allows critical decisions made by lower courts, to be struck down. Second, appellate courts can monitor the actions of lower courts; lower courts here are forced to apply the law correctly or be faced with the possibility of decisions being overturned. Third, if any controversies were to arise, they are then examined and resolved for the future guidance of courts and citizens. This is mainly seen at the level of the highest court. (Fleming James, 1985)

After the Marbury v. Madison decision there have been a number of cases that have involved Judicial Review. 1997, the Balanced Budget Act appropriates millions of dollars to New York healthcare system. The act passes, but Doctors do not receive the funds needed to carry out their duties, as healthcare professionals. President Bill Clinton uses the Line Item Veto Act to deny money to New York Hospitals. A Line Item Veto allows the veto of a specific part of a bill without congressional approval. The City of New York, along with two hospital associations, a hospital, and two health care unions, challenged the President Bill Clinton’s cancellation of a provision in the Balanced Budget Act of 1997, which surrendered the Federal Government's ability to recover nearly $2.6 billion in taxes levied against Medicaid providers by the State of New York. Clinton v. New York was also a consolidation of two cases, since both involve the Line Item Veto Act. In the second case, the president’s veto of the Taxpayer Relief Act of 1997 was challenged by Snake River farmer’s cooperative and one of its individual members. The Taxpayer Relief Act of 1997 involved a provision permitted some food refiners and processors to concede recognition of their capital gains in exchange for selling their stock to eligible farmer’s cooperatives. In a 6 to 3 majority decision, the court determined the act violates presentment clause of constitution, and legislation must be all together passed or all together rejected. Furthermore, it was determined that New York City and its affiliates and the farmers’ cooperative suffered injuries due to the line item veto act. (Fleming James, 1985)

Arizona 1963, a schizophrenic named Ernesto Miranda is arrested as a suspect in a rape of an eighteen year old female. Ernesto Miranda is identified in a police lineup, it is at this time that two officers take Miranda to a separate room and accuse him of as an accomplice to a murder completely unrelated to the rape case. Ernesto Miranda was told to stand up and was interrogated for four hours, he was not told he had the right to remain silent or had the right to an attorney. When Ernesto Miranda requested a lawyer, he was denied and the attorney was prevented from seeing Ernesto Miranda. Ernesto Miranda would be convicted on confession.

1966, Miranda v Arizona would create “Miranda Rule,” to prevent police from coercing suspect into professing to a crime. The Supreme Courts new rule had four warnings. One, you have the right to remain silent. Two, anything you say can and will be used against you in a court of law. Three, you have the right to an attorney. Finally, if you cannot afford an attorney, one will be provided for you. (Geoffrey C. Hazard Jr., 1993)

Miranda v Arizona would be responsible for making sure that suspects in criminal investigations were not coerced by police into confessing to a crime they may have not committer. However, two years after Miranda, congress passed legislation that voluntary confessions can be used as evidence in federal court without Miranda warning. (Rose, 2004)

The decision in Miranda v Arizona, at was very controversial, among politicians, police, and the population in general. The ruling came at a time where crime was a rising concern in the nation. Critics of Miranda would argue that it contributes to crime. The warning has no support in American history. The rule is too rigid and will lead to more litigation. Adding to this more cases challenging confessions have been appealed post Miranda than prior to the ruling. Some critics say that this ruling aids criminals by encouraging them not to talk to police. Critics basically believe that Miranda leaves crimes unsolved and criminals unpunished. (Rose, 2004)

Pro Miranda supporters would argue this; the intent of the 5th amendment is unclear, leaves room for interpretation. The ruling clearly indicates what police must do. It helps poor and uneducated citizens. It assures the integrity of the process, because it prevents police from exploiting psychological vulnerability of citizens.

In the year 2000 the Miranda ruling would be once again reaffirmed in the case Dickerson v. United States. In this case the Miranda rule was anchored into constitutional practice. In a 7-2 decision that the court determined that the Miranda warnings were a constitutional mandate that cannot be overturned by state law or federal legislation. (Hornstein, 1984)


Judicial Review is essentially, a vehicle in which the Supreme Court of the United States of America can determine and answer, as to what is and what is not constitutional. It can allow the decisions of lower courts to be struck down provided those decisions are erroneous and or unfavorable. The lower courts have a reason to apply the law the correct way, if they are faced with the reality of having their ruling overturned. Lastly, important controversies can be studied and solved.


Brain History. (2011, October 13). Retrieved from Brain History:

Fleming James, G. C. (1985). Civil Procedure. Boston: Brown Publishing.

Geoffrey C. Hazard Jr., M. T. (1993). American Civil Procedure: An Introduction. New Haven: Yale University.

Hornstein, A. D. (1984). Appellate Advocacy in a Nutshell. St. Paul: West Publishing .

Rose, W. H. (2004, July 12). Further Thoughts on "Marbury v. Madison". Retrieved from


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      4 years ago

      None can doubt the veiatrcy of this article.


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