On Today’s episode of Learning The Law, we would take a break from English Locus Classicus and pay attention today to an old American case upon which founded the concept of judicial review, strengthened the doctrine of checks and balances and as well extended the power of the judiciary to make laws just as it interprets laws. This is the case of Marbury v Madison decided in the year 1803.
In the case of Marbury V Madison, the core issue for determination before the court is who can ultimately decide what the law is; is it the executive, the legislature or the judiciary? The court held that it is the judiciary that has the ultimate power to determine and to say what the law is.
The decision of this case gave the court the unalloyed ability to strike down laws that are in conflict with the constitution on the primary ground that such law is unconstitutional and that power of the court to strike down any act of parliament or any executive order which is not in consonance with the constitution is called judicial review. This implies that before any law is made by the legislature or any order is given by the executive such law or order must first be subjected to a litmus test to determine the legality and applicability of such order or law and that litmus test is called judicial review.
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Judicial review in its basic meaning is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. This Judicial review power established in the case of Marbury v Madison strengthened one of the core pillars of modern society which is the pillar of checks and balances. It set up the judiciary as a watchdog to checkmate the arbitrary activities of both the legislature and the executives. Check and balances were specifically created to prevent any branch of the Federal Government from becoming too powerful to usurp the powers of other arms of government.
Why the decision in Marbury v. Madison is a landmark one is that it greatly expanded the power of the Supreme Court of the United States by establishing its right to overturn acts of Congress; a power that was not explicitly granted by the Constitution of the United States.
The decision in Marbury V Madison also posited that Congress or the lawmakers do not have the power to modify the Constitution through regular legislation because the Supremacy Clause in the Constitution places the Constitution before other laws and makes the Constitution supreme and above other laws.
Today, any country of the world that is practicing constitutional democracy has come to accept and appreciate the 1803 decision in the Marbury v Madison and since then it has become a popular opinion, generally accepted that it is the judiciary that has the power to decide what is law and what is not law.
Marbury v. Madison, 5 U.S. 137 (1803)