Marbury v Madison and the Doctrine of Judical Review

Authors

Edward S. Corwin, Princeton University

Abstract

What is the exact legal basis of the power of the Supreme Court to pass upon the constitutionality of acts of Congress? Recent literature on the subject reveals a considerable variety of opinion. There are radicals who hold that the power owes its existence to an act of sheer usurpation by the Supreme Court itself, in the decision of Marbury v. Madison. There are conservatives who point to clauses of the Constitution which, they assure us, specifically confer the power. There are legists who refuse to go back of Marbury v. Madison, content in the ratification which, they assert, subsequent events have given the doctrine of that decision. There are historians who show that a considerable portion of the membership of the body that framed the Constitution are on record as having personally favored judicial review at one time or another, either before, during, or after the Convention. Finally, there are legal-historians who represent judicial review as the natural outgrowth of ideas that were common property in the period when the Constitution was established. In the following article I accept this last view as in a general way the correct one. In doing this, however, I discover that I have only raised some further questions. For before ideas contemporary with the framing of the Constitution can be regarded as furnishing the legal basis of judicial review, it must be shown that they were, by contemporary understanding, incorporated in the Constitution, that they were regarded by the framers of the Constitution as furnishing judicial review, and that they were logically sufficient to do so. To investigate these questions is the purpose of the study to follow.

Recommended Citation

Edward S. Corwin, Marbury v Madison and the Doctrine of Judical Review, 12 Mich. L. Rev. 538 (1914).
Available at: https://repository.law.umich.edu/mlr/vol12/iss7/2