Judicial Review and James Madison

By Douglas V. Gibbs

James Madison entered the 1787 Constitutional Convention as a big-government nationalist.  Daily correspondence with Thomas Jefferson, coupled with the nature of the debates during the convention, transformed Madison.  In the end, he became a proponent of "limited government." 

Madison recognized the concept of Judicial Review, but questioned if the courts were the best way to provide a check against the legislature.  He did not fear the rise of an activist court as we see today.  He wasn't sure the courts would be willing to reject unconstitutional legislation.

Madison, when he was still a nationalist, suggested Congress should be able to "negative" State laws, a kind of "congressional review" of State laws.  Since the States have original authority over every issue, and because the foundational principles upon which the Constitution sits upon were designed to create a federal government that serves the States, rather than control the States, the idea of the federal legislature deeming State laws unconstitutional was widely rejected by the other delegates.

The debate over whether or not the federal legislature could "negative" State laws was resolved by the creation of the Supremacy Clause in Article VI., which establishes the right of the States to "negative" unconstitutional federal laws (nullification), placing the States above any federal branch as the final arbiters of the United States Constitution.

Madison mentions judicial review in his Federalist No. 39 and No. 44 essays, only to reveal the desires of certain circles.  Madison also, during that same time period, has been quoted from conversations and letters to fear judicial review because he felt such a concept would improperly exalt judges over legislators.

Judicial Review was launched into mainstream thinking regarding the authorities of the courts through the written opinion of Chief Justice John Marshall through the Marbury v. Madison case in 1803.  Judicial Review was used by John Marshall after that, but other judges did not adopt the concept as constitutional as readily as did Justice Marshall.  The concept did, however, emerge as an often used judicial tool by a number of judges in the federal courts after the Civil War.  The scheme of Federal supremacy broadened after the War Between the States, which served both to compromise State Sovereignty, while expanding the powers of the federal government.  Our modern court system takes full advantage of the concept, using Judicial Review regularly.  Today’s judges view themselves as the interpreters of the law, rather than being limited to only "applying" the law.

The concept of Judicial Review is anchored in the unconstitutional ideas that government exists to guarantee our rights, and that the federal government is supreme over the States.  Our rights are God-given, not government-given.  The States created the federal government to serve them; to protect, promote, and preserve the union.  The States are the parents of the federal government, so in the end, it is our responsibility, through our States, to decide what laws are constitutional, and which ones are not.

-- Political Pistachio Conservative News and Commentary