The Controversy over Judicial Review

The Constitution did not explicitly give the Supreme Court the power of judicial review. This power was essentially usurped by the Court in 1803, through the holding of Marbury v. Madison. In this case, the Court was asked to issue a writ of mandamus ordering President Jefferson to deliver a commission of Marbury as a justice of the peace. The commission had originally been executed by President John Adams but it had not been delivered. Jefferson wanted to give the commission to one of his own supporters and refused to deliver the commission to Marbury. Chief Justice John Marshall had been a supporter of Adams and opponent of Jefferson's. Ironically, he was also the one who forgot to deliver the commission to Marbury. Marshall was faced with the choice of issuing the writ, and watching Jefferson ignore the writ, or rejecting the application for the writ, and supporting Jefferson. Marshall did not want to provoke a confrontation with the executive branch, since the Court had no other avenue for enforcement of its decisions. Had Jefferson ignored the writ, the Court would have been permanently disabled as an independent branch of the government.

Marshall found an ingenious solution. He said that the refusal of the executive branch to deliver the commission to Marbury was illegal and that it was remediable by mandamus. He also said that the executive branch was bound to obey the laws and that a citizen had the right to seek

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h an understanding of a particular provision. This is a more flexible form of interpretivism and one which is advocated by many critics of judicial activism. Of course, one of the most visible examples in the debate over judicial activism is the evolution of substantive due process analysis. Ely points out that the Fourteenth Amendment Due Process Clause was adapted from the Due Process Clause found in the Fifth Amendment. The Fifth Amendment was drafted by the original framers of the Constitution and was intended to apply to actions by the federal government. From its inception, the Fifth Amendment Due Process Clause was understood to refer only to lawful procedures. Consequently, interpretivists have argued that the Fourteenth Amendment Clause, which applies to the states, must also have been intended as referring only to procedures. There is no indication otherwise in any legislative histories and the verbiage of both clauses is identical. One of the first signs of trouble with the Fourteenth Amendment Due Process Clause came in 1905, with the decision in Lochner v. New York. In this case, the Court articulated a substantive due process analysis protecting economic rights. The majority opinion drew scathing criti
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