JUDICIAL REVIEW

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 C

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rule of constitutional interpretation just stated is rightly applied. Id. at 173-174. Van Devanter supported his position with legislative practice, congressional enactments, historical anecdotes and court decisions. Van Devanter's opinion was that: the power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American Legislatures before the Constitution was framed and ratified. Id. at 174. Van Devanter articulated a rule that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information . . . recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. Id at 175. While Justice Marshall derived judicial review from the express language of the
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