HKB
HAMILTON'S ARGUMENT
The argument for judicial review of acts of Congress was first elaborated in full by Alexander Hamilton in the Seventy-eighth Number of The Federalist while the adoption of the Constitution was pending. Said Hamilton: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their [legislative] agents."[259] It was also set forth as something commonly accepted by Justice Iredell in 1798 in Calder v. Bull[260] in the following words: "If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case." And between these two formulations of the doctrine, the membership of the Supreme Court had given it their sanction first individually, then as a body. In Hayburn's Case,[261] the Justices while on circuit court duty refused to administer the Invalid Pensions Act,[262] which authorized the circuit courts to dispose of pension applications subject to review by the Secretary of War and Congress on the ground that the federal courts could be assigned only those functions such as are properly judicial and to be performed in a judicial manner. In Hylton v. United States,[263] a made case in which Congress appropriated money to pay counsel on both sides of the argument, the Court passed on the constitutionality of the carriage tax and sustained it as valid, and in so doing tacitly assumed that it had the power to review Congressional acts.
MARBURY v. MADISON
All the above developments were, however, only preparatory. Judicial review of acts of Congress was made Constitutional Law, and thereby the cornerstone of American constitutionalism, by the decision of the Supreme Court, speaking through Chief Justice Marshall in the famous case of Marbury v. Madison[264] decided in February, 1803. The facts of the case briefly stated are that Marbury had been appointed a justice of the peace in the District of Columbia by John Adams almost at the close of his administration, and John Marshall who was serving simultaneously as Secretary of State failed to deliver to Marbury his commission which had been signed before the new administration had begun. One of the first acts of Jefferson was his instruction to Secretary of State Madison to withhold commissions to office which remained undelivered. Thereupon Marbury sought to compel Madison to deliver the commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction and in pursuance of section 13 of the Judiciary Act of 1789[265] which prescribed the original jurisdiction of the Court and authorized it to issue writs of mandamus "in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."
Marshall's Argument