The term judicial review is familiar to virtually any moderately attentive student of American history. It achieved resonance from the moment the principle was enunciated in Marbury v. Madison, a Supreme Court case decided in 1803 that was the first to declare an act of Congress (Section 13 of the Judiciary Act of 1789, to be exact) unconstitutional. The details of the case are far less interesting than the principle that arose from it: In the waning days of his presidency, John Adams declared a number of "midnight appointments" to positions as justice of the peace. When John Madison became Jefferson's Secretary of State in 1801, he refused to honor the appointments. One of the failed JPs sued Madison for the commission, and the Supreme Court decided the case in 1803. Some or all parts of the background of the case are covered in encyclopedias and scholarly books about the period or the American judiciary. All accounts cite the institution of the principle of judicial review by the Supreme Court as the
decisive element of the case. The overriding constitutional principle embedded into the decision was this: Since the Constitution of the United States is the supreme law of the land, it must have the weight to overrule laws made by Congress that conflict with it. The effect of Marbury v. Madison was to clarify the role of the judiciary in general and the Supreme Court in particular as a major branch of American government. The Court's duty and right under the Constitution was to preserve, not change, the Constitution, and to establish its own principles for interpretation of the Constitution. Implicit in that role was the idea that government actions and policies found to be in conflict with the Constitution were subject to review, and more, that such review was specifically and exclusively the province of the judiciary.1
Though an important American legal principle, judicial review was not used to declare an act unconstitutional...