  
 Delegation Resource Manual: Judicial Manual
Page 110
YMCA PA Youth & Government Program
The decision in Marbury's case, written by Chief Justice John Marshall (the very same John
Marshall who affixed the seal to Marbury's commission--talk about a conflict of interest!) established
and justified the power of judicial review. It is the first case read by virtually every first-year law
student and is generally considered the greatest of all landmark cases. Marshall strained to reach his
result. The plain words of Section 13 of the Judiciary Act indicate that Marbury went to the wrong
court or invoked the wrong statute (or both), but Marshall proceeded as if the suit were authorized
by Section 13 and then declared the statute unconstitutional on the grounds that it purported to
expand the Court's original jurisdiction in violation of Article III. Marbury's suit was dismissed for
lack of jurisdiction. Marshall's decision--brilliant in its conception--allowed the Court to brand
Jefferson a violator of civil rights without issuing an order that the President could have ignored.
The Constitution does not expressly provide for this style of “judicial review” of the
meaning of the legislation. What should be made of this fact? Does it suggest that the framers did
not intend to give the courts such a power? Not necessarily, although that is one explanation for its
absence. It is also possible that the framers thought the power of judicial review was sufficiently
clear from the structure of government that it need not be expressly stated. A third possibility is
that the framers didn't think that the issue would ever come up, because Congress would never pass
legislation outside of its enumerated powers.
Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes,
expressed an opinion on the desirability of judicial review. Of those that did so, nine generally
supported the idea and two opposed. One delegate, James Wilson, argued that the courts should
have the even broader power to strike down any unjust federal or state legislation. It may also be
worth noting that over half of the thirteen original states gave their own judges some power of
judicial review.
For those individuals who are eliminated from the judicial tournament at lunchtime on
Saturday, you will engage in a discussion with legal experts on the topic of judicial review. What is it
really? Is it proper? How far should go the courts go when reviewing the legislation? After the
discussions, the group will be broken down into several breakout groups and apply the principles to
bills passed by the previous Youth Legislature.
Final Thoughts:
Local attorneys: You may be able to find a local attorney who is willing to donate his or her time to
assist in providing pointers. Also, they may be willing to allow you to use their library for doing
research. If you need help contacting a local attorney, contact your local bar association. They will
be glad to help you find an attorney in your area to help you out. Attorneys really enjoy these
activities.
The Internet: You will be able to find a number of good, free links for legal research from our
judicial page at http://www.ymcapa.org/Judicial.html.
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