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Marbury v. Madison: Judicial Review and Judicial Supremacy

Did the idea of “judicial review” originate with Marbury v. Madison? Does Marbury justify judicial supremacy? Professor Randy Barnett posits that the idea of judicial review existed before Marbury although the term itself was coined much later in the 20th century. Professor Barnett explains that it has always been the job of the Supreme Court to uphold the Constitution when it is in conflict with a statute. This does not mean that the Court has supremacy over the other branches of government. The judgments rendered by the Court need to be respected, although the opinions of the individual justices do not carry the force of law. https://youtube.com/watch?v=-MSRFax9CRY


The term "judicial review" is nowhere in the constitution, and it isn't really to be found at the founding. In fact, the term judicial review doesn't come into common usage until the 20th century, and it's about that time that Marbury versus Madison assumes its significance as a supposedly great constitutional case. There are many cases before Marbury in which the Supreme Court assumed that in a conflict between the higher law of the constitution and a statute, a statute would be null and void if it conflicted with that higher law. Marbury versus Madison simply represents the first time it finally held that a federal statute did, in fact, exceed the powers of Congress, and therefore was unconstitutional and void. It was simply the first occasion on which that power was used. It was not the first time that power had been recognized by the Supreme Court. Marbury has sometimes been used to justify what's called judicial supremacy, and that's the idea that the Supreme Court is somehow above all of the other branches of government when it interprets the Constitution when in fact, what the judicial power is is the power to decide cases and controversies that come before the court. When a case comes before the court and a conflict exists between the constitution and, let's say, a statute, the Supreme Court has no choice but to follow the higher law of the constitution. That is its duty, to follow the law. This does not mean that the Supreme Court's opinions in which they justify their outcomes, the decisions that they make, need to be followed by all of the other branches of government as though they were a statute unto themselves. What needs to be respected is the judgments of the Supreme Court. When they finally decide a case, the other branches of government respect the judgments of the Supreme Court, but that's not the same thing as adhering to the opinions of the justices when they justify their judgments. The idea that Marbury versus Madison invented the power of judicial review came about in the 20th century when people were trying to illegitimate the power exercised by the Supreme Court to invalidate, at the time, progressive legislation.

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