Doctrine of Judicial Review

Marshall based his decision on the premises that the Constitution was set forth as the will of the people and was designed to be permanent. Further, the Constitution contains specific limits on the powers of Congress and gives the judiciary the power to review cases in which an ordinary act of Congress and the Constitution conflict. Thus, he argues, when Congress creates a law which conflicts with the Constitution, it is going beyond the limits imposed on it by the Constitution (and therefore by the people), so if the judiciary were to allow such an act to stand unchallenged it would effectively render the Constitution meaningless because its sanctions would have no practical force. Marshall maintains that this proves that in cases where an act of Congress and the Constitution conflict, the Constitution must be considered superior by the Court, since no ordinary law is necessarily eit

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nterpretation as more correct than a strict one because a loose interpretation allows for the hermeneutic vocabulary of morality and human solidarity to enter into the decision-making process (witness the moral decisions of Brown v Board of Education and Roe v Wade). However, I do not believe Rorhy would not disapprove of the doctrine of judicial review just because he disagrees with Marshall's reasoning behind the Marbury v Madison ruling. It seems to me that Rorhy would actually support judicial review precisely because it makes room for the vocabulary of morality to be added to the vocabulary of law. The Constitution can most optimistically be viewed as a Deweyan "structure of culture" and the judiciary as a force promoting the will to truth, the urge to create rather than to dominate, and the attainment of "working harmony among diverse desires." Therefore, I believe that although Rorhy would classify Marshall's rather conventional epistemological stance as wrongheaded, he would, in the end, support the decision Marshall made. B.F. Skinner would vehemently disagree with Rorhy about the existence of an "overarching ahistorical structure" governing human life. He, as the father of modern behaviorism, believed that the l
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Approximate Pages = 11 (250 words per page)

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