Judicial Review

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Program: Judicial Independence in the New World
Segment Number: 11 (Watch entire program)
Duration: 00:04:50
Year Produced: 2009
Description:

John Marshall’s lifetime experience in the Virginia courts would lead him to establish Judicial Review on the federal level. Prominent Virginia Judges had already started to establish this American idea 20 years earlier.

The court system is an ever-changing and evolving entity, and there are key moments of history when Virginia's people and its judicial system made everlasting impressions on the country. JUDICIAL INDEPENDENCE IN THE NEW WORLD tells the story of the development of the court system in the early years of our nation's history. Historians take us back to the Court Days and Pre-Revolution and Post-Revolution periods to explain the rule of law and the basics of the court system we know today.

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Transcript

Narration:
The United States Constitution was ratified in 1788 and the Judiciary Act of 1789 provided for a supreme court. Although the federal courts had their roles, The Supreme Court wouldn't exercise its full power until John Marshall became the 4th Chief Justice in 1801. Marshall’s lifetime experience in the Virginia courts would lead him to establish Judicial Review. Prominent Virginia Judges had already started to establish this American idea 20 years earlier.

Howard:
I think it’s important to remember that Virginia in the 1770s and 1780s was the most populist, richest, politically most important state of all the states in the union. In the early days of the republic, Virginia was where so much of the action was. Of course we know about Virginia producing a row of presidents: what, George Washington, Thomas Jefferson, James Madison and so forth. It’s less well-known that the Virginia judiciary played a central role in developing the place of American judges and the idea of Judicial Review.

There was a Virginia case, Commonwealth vs. Caton in 1782, where the court didn’t reach the point of actually striking down an act of legislature, but in Commonwealth vs. Caton, George Wythe in dictum advanced the argument that if there were an act of legislature inconsistent with the constitution, then it would be the duty of the Supreme Court of Virginia to strike it down. That is to say that was dictum and not yet a holding, that was 1782.

Howard:
About a decade later, 1793, came a case called Kamper vs. Hawkins. In that case the court was reviewing an act of the General Assembly which purported to rearrange the law and equity jurisdictions of the Virginia courts. And the Supreme Court in reviewing that act of the Virginia General Assembly thought that the assembly had exceeded its authority, had rearranged the courts in a way that the assembly didn’t have the power to do. That 1793 opinion I think is a square precedent and actually is one of the landmarks on the road to Murberry vs. Madison in 1803 where John Marshall, looking at the federal constitution, said that the U.S. Supreme Court has the power and the duty to strike down an act of congress not consistent with the constitution.

Hobson:
He comes in as the 4th Chief Justice of the United States, but is probably the first one that people recognize the name. And the only formal law training Marshall had was the course of lectures that he attended under Professor Wythe at William and Mary in 1780. This was actually probably the second course of lectures that Wythe gave as the first professor of Law and Police at William and Mary. That was the first professorship of law in America, established in 1779 under Governor Thomas Jefferson.

Wythe had this ideal of training lawyers who would be statesmen. Marshall, in a sense was influenced not only as a student of Wythe, but then he argued cases before him in the courts of Virginia. Then, of course, Edmund Pendleton is also important in, say, Marshall’s development as a jurist. I think Marshall learned from both Wythe and Pendleton kind of the ideal of, you know, or the potentials of what a strong, vigorous, independent judiciary could accomplish.

In 1803 when he’s sitting on the U.S. Supreme Court in the famous case of Mulberry vs. Madison. Lawyers love this case dearly because this is the great precedent for what we call Judicial Review. This was the first time the U.S. Supreme court struck down a law of congress as infringing the Constitution.

The statute is saying that the Supreme Court can hear, can issue writs of mandamus to compel government officers to do something. And Marshall is saying no, we don’t have the jurisdiction to do that, so this kind of self-denies. No, we don’t have that power under the Constitution. Perhaps it helped matters that they were denying themselves power. At least, ostensively. Sacrificing that, and perhaps the greater power of course is to say well, we can hold legislatures accountable to the Constitution.

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