Judicial Review
Judiciary Act of 1801
● Designed to protect the Constitution against Democratic-Republicans
● Increased the number of courts
○ Created judge positions for Federalists
● Six to Five members of the Supreme Court
○ Block democratic-republicans from appointing a judge for a long time
● John Marshall was appointed Chief Justice
○ Previously Secretary of State
■ Left appointment letters on his desk
● Democratic-Republican Congress tried to abolish courts/remove judges
● Supremacy Clause made sure the Supreme Court had power of judicial review
● Stuart v. Laird
○ Congress had the authority to reorganize the judiciary
○ Federalists would no longer win control over any branch
Marbury v Madison
● Marbury v. Madison decision would come to be appreciated for establishing the Court’s
“coequal” status among the branches of the American government.
● asked the Court to issue a writ of mandamus to James Madison
○ a judicial instruction to a government officer to perform his duty and deliver the
commissions
● No- win situation
○ Marbury favor- and ordered Madison to deliver the commissions, Marshall could
reasonably assume that its decision would be ignored
○ Madison favor-the Court would appear to be kowtowing to the
Democratic-Republicans and confirming the judiciary’s subordinate position
● Marshall’s ruling
○ Questions
■ does Marbury have a right to the commission?
■ do the laws of the United States afford him a remedy?
■ is the appropriate remedy a writ of mandamus issued by the Supreme
Court?
○ Marbury’s favor on the first two...but answered no to the last
● Marshall’s Reasoning
○ Writ of mandamus case is not listed in Article III
○ No power to add writ of mandamus to courts jurisdiction
○ If the Constitution is superior…
■ A legislative act contrary to the Constitution is not law
○ Any act of Congress that goes against the Constitution is void
● Gave power of judicial review
Three Eras of Court’s Judicial Review
Nation versus State
● Founding to Civil War
● Period Of Nationalization
● McCulloch v. Maryland
○ National Supremacy
○ Marshalls decision
■ “the power to tax involves the power to destroy.”
■ States cannot tax federal property
■ Federal authority trumped state authority
● Dred Scott v. Sandford and State’s Rights
○ Chief Justice Taney
○ Claiming that African Americans were not citizens under the Constitution
■ Escaped slaves in the North had to returned to their owners
■ Outlawing slavery infringed on property rights of those in the North
○ Discredited the courts
○ States can now strike down laws of states that go against national law
Regulating the National Economy
● End of Civil War to 1920a
● Economy is main issue
○ Rapid industrial expansion
○ Pressure to regulate companies/monopolies
● Primacy of Property Rights
○ Business was shielded from economic regulation
■ Sympathy towards property rights
○ Due process clause
■ Gave justification for protection of businesses from regulation...defined
them as ‘persons’
● Lochner v....
