The principle of judicial review was published in Federalist Paper No. 78, written by Alexander Hamilton. Hamilton first got rid of the idea that legislators should impose the Constitution on themselves: for example, in Cohen v. Virginia in 1821, the Supreme Court expanded its powers to constitutionally review the decisions of state criminal courts. Sometimes Supreme Court decisions require a legal interpretation or the interpretation of federal law. Here, the court can rely on the clear meaning of a law to determine what Congress or a state legislature intended to do, or it can turn to legislative history, the written record of how the bill became law. Similar forms of reasoning apply in cases of constitutional interpretation, but judges (especially liberals) are often willing to use a third method: the living constitutional approach. They update the meaning of the provisions and do not adhere to the literal interpretation or historical intent, so the Constitution can function as a “living document.” At the beginning of the national period, the judiciary was the weakest of the three branches of government. When Chief Justice John Marshall established the principle of judicial review in marburyMadison by declaring an act of Congress unconstitutional, he significantly strengthened the judiciary. Although the Supreme Court exercised this prerogative only once again before the Civil War (Dred Scott v. Sanford), the introduction of judicial review has made the judiciary an equal actor to that of the executive and legislative branches.
The Court has not always supported a more important role for the federal government. First, it has been found that much of President Franklin Roosevelt`s New Deal legislation is unconstitutional, largely because it violates the economic rights of individuals and corporations. Roosevelt responded by trying to increase the size of the court, which would allow him to appoint new judges who sympathized with his agenda. This attempt to “take over” the court failed, but at that time the court nevertheless began to rule in Roosevelt`s favor. This decision set a precedent for the government`s judiciary to declare a law unconstitutional. This decision was essential to put the judiciary on an equal footing with the legislative and executive branches. As Justice Marshall wrote, since Marbury, the Supreme Court has significantly expanded the powers of judicial review. In Martin v. Hunter`s Tenant, 14 U.S. 304 (1816), the Court held that it can hear civil cases in state courts if they occur under federal or constitutional law. A few years later, it decided the same for state criminal cases.
Cohens v. Virginia, 19 U.S. 264 (1821). In 1958, the Supreme Court expanded judicial review to mean that the Supreme Court had the power to override any state, executive, judicial or legislative action if it found it unconstitutional. Cooper vs. Aaron, 358 U.S. 1 (1958). Today, there is no serious opposition to the principle that all courts, not just the Supreme Court (and not just federal courts), have the power to strike down laws or executive actions that are inconsistent with the applicable federal or state constitution.
Marbury asked the Supreme Court to issue a writ of mandamus ordering that the commission be served on the basis of the Judicial Act of 1789. However, Chief Justice of the Supreme Court, John Marshall, ruled that the part of the Judicial Act of 1789 that authorized writs of mandamus was unconstitutional. At no time in this century has devotion to this principle been invoked more vigorously than in 1937, when Franklin Roosevelt presented a plan to increase the number of Supreme Court justices. The conflict sparked by the president`s plan is more understandable when viewed in the historical context of the expansion of the judiciary, as well as in the contemporary context of pro- and anti-New Deal policies. Judicial review was enshrined in the Supreme Court`s landmark decision in Marbury v. Madison, who understood the crucial passage of Chief Justice John Marshall: “It is the duty of the Department of Justice to say what the law is. Those who apply the rule to specific cases must necessarily explain and interpret the rule. When two laws collide, the court must decide how each law works. In other words, the Supreme Court can only deal with cases originally brought before the Supreme Court if those cases involve ambassadors, foreign ministers or consuls, and if a state is a party. Otherwise, you can challenge your case in the Supreme Court, but you cannot get it in the first instance.
Since Marbury was not ambassador, foreign minister or consul, and a state was not a party to the case, the Constitution did not allow the Supreme Court to assert its original jurisdiction over the case.