[SOUND] The fourth question in Marbury versus Madison that needs to be addressed is what's the authority for judicial review of legislative acts? What Marbury versus Madison is most famous for is establishing the authority of the federal courts to review the Constitutionality of Federal statutes. As I already mentioned, nothing in the Constitution gives to the courts this power. Nothing was said at the Constitutional Convention, Philadelphia in 1787, that indicates that courts have this authority. It's not a power that's ever existed in England. it didn't exist in 1787, the time the Constitution was ratified. It doesn't exist today. In England, Parliament is sovereign. One would think that if the framers wanted to give the courts the power to declare statutes unconstitutional, they would have said so. But in Marbury versus Madison, the Supreme Court says not withstanding the silence in the Constitution, this is in the power of the Federal judiciary. John Marshall begins his discussion here by asking a question that's phrased in clearly loaded terms. He asks can an Act repugnant to the Constitution be the law of the land? Notice the phrasing. Can an Act repugnant to the Constitution be the law of the land? Just to ask the question in that way, of course, suggests the answer. John Marshall says that the Constitution is regulatory. It's controlling over all other laws. Didn't have to be this way. Think of the Constitution as compared to the Declaration of Independence. No court in American history has ever found a law unconstitutional for violating the Declaration of Independence. The Declaration of Independence is not a regulatory document. It's not controlling. But the Supreme Court, in Marbury versus Madison, says the Constitution is controlling over all other laws. That, of course, doesn't explain the role of the judiciary. John Marshall addresses that in what's the most famous sentence in Marbury versus Madison, where he declares, quote, it's the province and duty of the Judicial Department to say what the law is. John Marshall then gives several arguments, of course, he's writing for the Supreme Court, as to why it's the province and duty of the Judicial Department to say what the law is. He says that the Constitution is meant to impose limits on government. Those limits are meaningless if they're not enforced. What's to stop Congress from adopting an unconstitutional law, and the President from signing it? What's to stop Congress from adopting even a very repressive law, and the President from signing it? It's the ability of the Court, according to John Marshall, to enforce the Constitution. He says that Article Six of the Constitution says the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. John Marshall says to give that effect, there must be the power of judicial review. He says that all Federal judges take an oath of office. They would be violating that oath if they had to enforce unconstitutional laws. All of these arguments can be questioned. None are unassailable. The fact that the Constitution has limits doesn't tell us what role the judiciary should have relative to those limits. For example, if Congress were to pass a bill that's unconstitutional, there's still a check, there's still the ability of the President to veto that bill. In terms of the supremacy clause, it tells us that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. But it doesn't specify what's the role of the judiciary in assuring its supremacy. It's true, of course, that all Federal judges take an oath to uphold the Constitution. But it's also true that the President, all members of Congress, in fact, elected officials, government officers at all levels, take an oath to uphold the Constitution. And so, none of John Marshall's arguments are unpersuasive, but none are conclusive either. Yet, it's been established ever since 1803 that Federal courts have the power to declare unconstitutional Federal statutes. Perhaps this came to be accepted and not controversial because of the lack of controversy at the time, and also because of the history that followed it. As I already mentioned, because the Supreme Court was ruling in favor of the incumbent President, the Jefferson administration, they had no reason to oppose what the court did in Marbury versus Madison. Because the Court was declaring unconstitutional a Federal statute that appeared to increase judicial power. No one saw this as a power grab by the Supreme Court and the Federal courts. History is also important here. It wasn't until 1857 in the infamous case of Dredd Scott versus Sanford, that the Supreme Court again declared unconstitutional a Federal statue. So, decades when by after Marbury versus Madison where it was accepted that the Federal courts had this power, but they didn't use this power. And a great deal went on in those decades to venerate those who had designed the government, those who were the first officials under it. Myths were created about those individuals. Myths like George Washington chopping down the cherry tree, or Betsy Ross sewing the American flag. All of these were myths about those who were part of early American history. And what they did took on special status. And this included Marbury versus Madison. The controversy over judicial review did not end with Marbury versus Madison. At intervals throughout American history, individuals argued that there should not be judicial review, and this continues to this day. Not that long ago, a prominent Harvard law professor, Mark Tushnet, wrote a book titled Taking the Constitution Away From the Courts, in which he argued we should eliminate the power of judicial review. Jame MacGregor Burns, a Pulitzer Prize winning political scientist from Williams College, wrote a book just a few years ago arguing that Marbury versus Madison was wrong, and that we should eliminate judicial review. These are arguments worth considering. They're concern is that the Supreme Court is unelected. What's to check an unelected judiciary within an American Democratic system? I think they were also concerned that over the course of American history the Supreme Court often has failed. Often the most important tasks in the most important times. I think their criticism of judicial review are powerful, important to address. Yet, I also believe they're fundamentally wrong. I think that judicial review is essential for the very reasons that John Marshall said in Marbury versus Madison The Constitution is meant to impose limits on the government. Those limits have meaning only if they are enforced. What is to stop the government from adopting unconstitutional laws but for the Court's being there to say no. The critics of judiciary review focus on Congress and the President, and say that we can trust them. Now, I think history shows that often we can't trust Congress and the President to comply with the Constitution. But I'm even more concerned about state and local governments, every city council, every school board, every police commission. What's to insure that they comply with the Constitution? We know that often pressure, political pressures, electoral pressures, will cause government officials to violate the Constitution, intentionally or unintentionally. What Marbury versus Madison tells us is if the Constitution is to have meaning, it must be enforced, and it's the province and duty of the judicial department to say what the law is. Perhaps I'm particularly skeptical of the arguments advanced by those like Tushnet and Burns who want to eliminate judicial review because of the legal work that I've done over my career as an attorney. I represented a Guantanamo detainee. I represented a homeless man in the United States Supreme Court. I represented individual at the Supreme Court who received a life sentence for shoplifting $152 worth of video tapes. I've argued a couple of death penalty cases in the Federal Courts of Appeals. As I think about clients like this, it's really the Federal judiciary or nothing. When, after all, is the last time that a legislature adopted a law to increase the rights of criminal defendants? When's the last time that a state legislature on its own adopted a law to provide more rights to prisoners? What the Supreme Court was saying in Marbury versus Madison, though it didn't put it in these terms, is that for individuals like this, if the Constitution's to have meaning, it's the courts or nothing. I'll accept that the courts have often failed through American history. I wrote a book that was published in 2014 titled The Case Against the Supreme Court, which argues that the Supreme Court often has failed. But that isn't a mere reason to eliminate judicial review. There are certainly things we can do to improve the way the courts function. But the underlying reasoning and the ultimate conclusion of Marbury versus Madison remains true today. For the Constitution to have meaning, it must be enforced, especially for those vulnerable in our society. If the Constitution is to have meaning, it must be enforced. If it is to happen, it has to be through the Federal judiciary. Yet, the criticisms that are raised by those who oppose judicial review must be taken seriously. Who's to check the courts? We've given to the judiciary this tremendous power to declare laws, Federal, state and local. And executive actions, federal, state, local, unconstitutional. But what's the limit on the judiciary? That's what I'll address in the next segment. [SOUND]
