JUDICIAL REVIEW AND LEGISLATIVE INVESTIGATION
Chief Justice John Marshall's justification for the practice of judicial review in Marbury v. Madison appealed to the writtenness of the Constitution. Judicial review is easier to justify if it is exercised with reference only to the written document.1
According to Chief Justice John Marshall, the Constitution forms the fundamental and paramount law of the nation. It follows that it is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it. It was equally plain that the judiciary must be the ultimate arbiter of what the Constitution says, for without judicial review the legislature could alter the constitution by an ordinary act. Marshall explained:
The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.2
Judicial review rests, in large part, on a factual assumption. Chief Justice Marshall implicitly assumed that legislators, though they swear to discharge their duties pursuant to the Constitution, would not always remain faithful to that pledge, or at least not as faithful as judges.3
But does the structure of the Constitution mandate judicial review, as is demonstrated by the fact that the legislature cannot be expected to restrain itself, or does the fact that the legislature cannot restrain itself mandate a constitutional structure containing judicial review? If it had been, or could be, conclusively demonstrated that the legisla...