Section 3: Judicial Review
Judicial Review, A Definition
The Supreme Court, A Brief History
Marbury v. Madison
A History of Judicial Review
The Pulitzer Case
The Tribune Cases
Other Supreme Court Decisions
The United States Supreme Courthttp://www.supremecourt.gov
Judicial Review, A Definition
Judicial review is the process by which courts may examine legislative and congressional actions (when those actions are challenged) and cases from lower courts (on appeal).
From The Oxford Companion to the Supreme Court of the United States, edited by Kermit l. Hall and published by Oxford University Press, 1992 edition:
Judicial Review is a distinctive power associated with the Supreme Court that is nowhere specifically mentioned in the Constitution. Chief Justice John Marshall in Marbury v. Madison (1803) asserted the major principle on which it rests by observing: '[I]t is imphatically the province and duty of the judicial department to say what the law is.' Through judicial review the Court most dramatically asserts its authority to determine what the Constitution means.
Arguments about original intent, judicial activism, etc. have existed from the very first. When courts rule, they always maintain that their rulings are in keeping with original intent, no judicial activism, etc. Opponents say just the opposite.
The truth is that whoever has the power to interpret the laws has as much power as the people who make them.
And so, how were we to determine the original intent of the Constitution?
In the immediate period, The Federalist. However, the three men who wrote the essays differed in their interpretations. They were Alexander Hamilton, the leader of the Federalists; James Madison, a leader of the Anti-Federalists; and John Jay.
Also, members of Congress who had been members of the Constitutional Convention were readily available to provide instant interpretation:
8 members of the House of Representatives
On The Common Law
Oliver Wendell Holmes served on the Supreme Court from 1902 to 1932. He wrote The Common Law in 1881. It is considered the classic book on the common law in America. This quote is from the 1949 edition by Little, Brown and Co., the 43rd printing, at page 36:
The truth is, that the law is, always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.
One of the most oft-quoted statements about the Supreme Court is one by former Justice Robert H. Jackson, who served from 1941 to 1954. He said, "We are not final because we are infallible, but we are infallible only because we are final."
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The Supreme Court, A Brief History
Article III of the Constitution describes the judicial branch of the federal government in such a way that many questions are left open. The article does not explain the structure of the federal court system, the size of the Supreme Court or the qualifications of the Supreme Court justices.
Article III says:
The Judiciary Act of 1789 set the size of the Supreme Court and directed that the justices of the Supreme Court preside over the circuit or district courts. Justices of the Supreme Court continued to sit as trial judges in civil and criminal cases until 1875.
Under the Judiciary Act of 1789, the Supreme Court was assigned a chief justice and five associate justices. The number of associate justices was reduced to four in 1801 and increased to six in 1807, to eight in 1837, to nine in 1863 and reduced to six in 1866. An act of 1869 provided for a chief justice and eight associate justices.
The chief justice is chief justice of the United States.
Article III of the Constitution does not mention judicial review.
Part of the Judiciary Act of 1789 was overturned in Marbury v. Madison. Chief Justice John Marshall held that in authorizing the Supreme Court to issue a writ of mandamus in an original jurisdiction case, Congress had exceeded its constitutional powers.
John Jay was the first chief justice of the United States (1789-1795). His successor was to have been John Rutledge of South Carolina, but the senate rejected his appointment, Oliver Ellsworth of Connecticut was chief justice from 1796 to 1799.
Marshall was appointed by President John Adams just before Jefferson became president and the Republicans took control of Congress. Marshall served from 1801 until his death in 1835.
Marshall is by any consideration the most important chief justice in history. He is called the second father of the Constitution - Madison being the first.
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Marbury v. Madison
The authority to examine the constitutionality of acts of Congress was first enunciated by Chief Justice John Marshall in Marbury v. Madison in 1803. Marshall wrote the opinion declaring a provision of the Judiciary Act of 1789 unconstitutional.
In doing so Marshall created a precedent for review of federal legislation. This concept was not specifically dealt with in the Constitution.
The plaintiff in the case was William Marbury and three other people who were in a similar situation.
Marbury had been appointed by President John Adams to be a justice of the peace in the District of Columbia. But, the commission was not delivered by the Secretary of State's office before John Adams' term as president ended.
Marshall himself had been involved in the failure to deliver the commissions. He was the secretary of state under Adams. His brother, James, had been assigned the task and for some reason or other didn't carry it out.
James Madison was the new secretary of state, but he was in Virginia. His father had died. Levi Lincoln was acting in his place. That's the way Madison got his name on the suit.
Besides Marbury, the others who did not have their commissions delivered were Robert Townsend Hope, William Harper and Dennis Ramsay. They had been appointed to various positions.
When the case got to the Supreme Court, Marshall ruled against Marbury and dismissed the suit.
A section in the 1789 Judiciary Act empowered the U.S. Supreme Court to issue writs of mandamus. Marbury asked the court to issue a writ that would enable him to receive his commission.
In his ruling, Marshall said the Supreme Court did not have the jurisdiction to issue a writ of mandamus because the applicable section of the 1789 Judiciary Act empowering the court to do so was unconstitutional.
The decision avoided a direct conflict between the executive branch (especially President Jefferson) and the Supreme Court over the ongoing question of the powers of the federal government.
More than that, the ruling established that the Supreme Court would have jurisdiction over acts of Congress. It was the beginning of judicial review as we know it today.
Ironically, the Supreme Court now has some authority to issue writs of mandamus. The authority is limited and is rarely used.
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A History of Judicial Review
First, a listing of pertinent events:
Fletcher v. Peck, 1810
Section I, in part says:
Fletcher v. Peck, 1810
In Fletcher v. Peck, the United States Supreme Court overturned an act by a state legislature -- the first time this had been done.
The Supreme Court held that a state legislature could not constitutionally rescind land grants to individuals who had purchased the land in good faith.
Chief Justice John Marshall delivered the opinion of the court. He explained that the result was justified both by the contract clause and "by general principles which are common to our free institutions."
The Georgia legislature in 1794 authorized the sale of 35 million acres in the Yazoo, what is now Alabama and Mississippi, to four land companies. As things turned out, the companies involved had got the land by bribing members of the legislature. As a result, the legislators were voted out of office.
A new, reform legislature was seated and it rescinded the Yazoo grant and invalidating all property rights related to the sale. However, in the meantime, the companies that had acquired the land began selling it off.
One such purchaser was Robert Fletcher. After the actions of the reform legislature, Fletcher sued John Peck, the man he had bought his land from.
This was the difficult decision that confronted Chief Justice Marshall and the court: Whether to uphold the original land grant or uphold the action of the reform legislature.
In his opinion, Marshall said that Georgia did have rights to the land within its borders and therefore to sell the land in question. But, Marshall reasoned, the state did not have the right to terminate a contract.
Hence, Fletcher won his suit and was allowed to keep his land.
Barron v. Mayor and City Council of Baltimore, 1833
John Barron owned a wharf in the harbor at Baltimore. When dredging for municipal street construction made his wharf too shallow for most ships to enter, he sued the city.
The suit contended that the city's action violated the Fifth Amendment, which provides that private property shall not be taken for public use without just compensation.
The legal issue was this: Could the Fifth Amendment be used to restrain the legislative power of a state (or its municipality) -- as well as that of the United States, which it does.
Chief Justice John Marshall wrote the opinion for the court.
After surveying the history of the Bill of Rights, Marshall said that the first ten amendments restrained only the federal government. Therefore, Americans would have to look to state constitutions for protection of their civil and political liberties.
After 1868 the 14th Amendment should have brought the states and their municipalities under the Bill of Rights. However, no case involving the First Amendment was successfully brought to the court until 1925 when the court agreed to hear a New York case - Gitlow v. New York.
The Supreme Court didn't overturn a state case dealing with the First Amendment until 1931 in Stromberg v. California.
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The Pulitzer Case
President Theodore Roosevelt was particularly sensitive to criticisms in the press. And it was as a result of this sensitivity that he instituted the first government prosecution of the press for libel since the cases brought under the Sedition Act of 1798.
The circumstances involved the acquisition of a canal route in Central America. The idea for a canal had long been discussed.
An incident during the Spanish-American war had sparked new American interest in a canal across the isthmus of Panama. The battleship Oregon was ordered to Cuban waters from Puget Sound and it had made the long voyage around Cape Horn amid national interest. Also, we had acquired possessions in the Pacific as a result of the war.
The problem was acquiring the rights to land for a canal in Central America. The isthmus was then a part of Colombia and France had purchased the rights in 1876. By 1889 the construction company under Ferdinand DeLesseps, who had been the engineer for the Suez Canal, had spent $260 million without completing the canal and then had been forced into bankruptcy.
A new organization, the Panama Canal Company, was formed to try to sell the assets of the French owners to the United States.
The company asked $109 million for its concession. But a commission appointed by President McKinley reported on November 16, 1901, in favor of a competing syndicate that had a concession to build through Nicaragua. The Panama company responded by lowering its price to $40 million.
Meanwhile, Roosevelt (who had become president upon the death of McKinley) had come to thinking that the digging of the canal would be his way of making his own impact on the presidency -- and to get away from the impression that he had merely inherited it. So he persuaded the commission to change its recommendation and support the canal across the isthmus, then in Colombia.
This about-face came on January 18, 1902, nine days after the House of Representatives had voted 308 to 2 in favor of a Nicaraguan canal.
The Senate amended the bill with a provision that the president was to acquire from Colombia a right of way across the Isthmus of Panama. But if he couldn't do so "within a reasonable time and upon reasonable terms" he was to turn to the Nicaragua plan. The bill became law on June 28, 1902.
Meanwhile, of course, considerable maneuvering had been going on behind the scenes.
William Nelson Cromwell, a prominent New York lawyer, had been retained by the Panama Canal Company to represent its interest.
He had been on the job since 1899. In 1900 the Republican campaign fund received a $60,000 contribution from Cromwell. The party's platform was changed to favor the Isthmian Canal through what was now known as Panama as opposed to a route in Nicaragua.
Eventually the proceedings over the location were to bog down. The Senate did approve a treaty on March 17, 1903, but Colombia refused to sign. Then the idea was pushed that Panama could secede from Colombia, and such a plot was laid.
On October 19, 1903, three United States war ships were ordered to the scene. The revolution occurred as planned on November 3. Within an hour, Roosevelt authorized recognition of the new nation. Afterwards Roosevelt boasted in a speech: "I took the Canal Zone and let Congress debate."
The United States then paid the Republic of Panama $10 million and $40 million as promised to the French government for the Panama Canal Company.
The World Investigates
William Nelson Cromwell had submitted his bill for services rendered to the Panama Canal Company for $800,000. But rumors of misdeeds persisted.
The New York World, Joseph Pulitzer's newspaper, began making inquiries. This came to the attention of Cromwell.
Cromwell sent a representative, Jonas Whitley, one of his press agents, to talk with Caleb Van Hamm, the managing editor of the World. Van Hamm was warned not to print falsities about Cromwell or the situation in Panama.
The World then proceeded to run a series of articles, five in all, critical of the canal deal. But, the paper had not checked with two of the men it was writing about: Charles P. Taft, brother of William H. Taft, and Douglas Robinson, the brother-in-law of Roosevelt.
Meanwhile on November 2, the day before the election in 1908, the Indianapolis News ran an editorial questioning where the $40 million had gone.
(Roosevelt was not a candidate for reelection. William Howard Taft won, defeating William Jennings Bryan. It was Bryan's third loss.)
In early December Roosevelt's reply to the Indianapolis News editorial was carried by the Associated Press.
On December 8, 1908, the World published a long editorial accusing Roosevelt of lying and calling for a Congressional investigation. The World wanted an answer to the question: Who got the money?
The World said that the people who had the answers were Cromwell, Roosevelt and Elihu Root, formerly secretary of war and now secretary of state.
The editorial said it was Roosevelt and Root who had aided Cromwell in the Panama revolution and said that the $40 million was paid not to the French government but to J.P. Morgan & Co. The newspaper used a record from the 1906 Senate investigation to support its claims.
The World editorial created a nationwide sensation.
The next day Roosevelt wrote to Henry L. Stimson, the United States attorney in New York, saying:
In the message, Roosevelt equated the alleged defamation of public officials with "blackening the good name of the American people."
The point is that the World may have made factual mistakes, but the main force of the editorial had merit: that is, asking the question who got the money in the Panama Canal deal was a legitimate one.
Roosevelt's attempts at imposing criminal libel against the press reversed the long doctrine that the government of the United States could not be libeled -- individuals might sue, but not the government for them, which is what criminal or seditious libel is.
Not so incidentally, no such criminal libel statutes were on the books.
On February 17, 1909, a District of Columbia grand jury indicted Joseph Pulitzer, Caleb Van Hamm and Robert Hunt Lyman of the World and the Press Publishing Company, the corporate name of the World. The defendants were charged with five counts of criminally libeling.
Charles P. Taft, Elihu Root and William Nelson Cromwell.
Frank Cobb of The World responded in an editorial that said:
On March 4, 1909, the day Roosevelt left office, a federal grand jury in New York indicted the World and one of its editors (Caleb Van Hamm, who had been involved with the original stories on Panama) on the ground that 29 copies of an offending issue had been circulated at the military reservation at West Point; others had been routinely sent to the New York post office for examination by postal inspectors.
An 1825 federal law, amended in 1898, entitled "An Act to Protect the Harbor Defenses from Malicious injury and for other purposes" was used as the basis for the indictment, although the law had never been used before for a libel prosecution.
This was the case the government pursued against the World. Roosevelt left office, but under the Taft administration the new attorney general, George W. Wickersham, continued the prosecution.
Then a United States district judge in Indianapolis dismissed the case against The Indianapolis News executives on the ground that the government had no right to prosecute the defendants in Washington. He used the Sixth Amendment -- that is, they were being prosecuted somewhere other than where the crime had been committed.
This was the original case, based on the February 17, 1909, indictment. The federal judge also discussed in his opinion the role of a free press. Later Roosevelt called the judge, Albert B. Anderson, "a jackass and a crook."
The Case Goes to the Supreme Court
On January 25, 1910, a United States district judge in New York, Charles M. Hough, quashed the indictment of the World, saying there was no federal law authorizing the prosecution.
That left the case involving the military bases still pending.
And, Pulitzer was not satisfied. He wanted the principle of freedom of the press to be settled by the Supreme Court to ensure that the press would be free from such restraints in the future.
The case went on appeal to the United States Supreme Court. Arguments were heard before the court on October 24, 1910.
On January 3, 1911, the court ruled unanimously in favor of the World.
However, the decision was more or less on technical grounds. The court said the law in question (about distributing the newspapers on a military installation) was not applicable. It did not give a ringing support for the concept of freedom of the press.
The case: United States v. Press Publishing Company, 219 U.S. 1, January 3, 1911.
Joseph Pulitzer died on October 29, 1911. His will provided an endowment for a journalism school and prizes in his name at Columbia University. The school opened in 1912. The Pulitzer Prizes have been given annually since 1917.
Lofton, John. The Press as Guardian of the First Amendment. Columbia, South Carolina: The University of South Carolina Press, 1980.
Swanberg, W.A. Pulitzer. New York: Charles Scribner's Sons, 1967.
Emery, Edwin. The Press and America. Third Edition. Englewood Cliffs, New Jersey: Prentice-Hall, Inc., 1972.
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The Tribune Cases
1. Henry Ford sues The Chicago Tribune
Before World War I, an executive at Ford Motor Company was quoted as saying that Ford employees who volunteered for the National Guard would lose their jobs. The Chicago Tribune ran an editorial entitled "Flivver Patriotism."
The editorial said:
One of the points here is the use of the word anarchist and the implication it had, especially in Chicago.
The case was delayed by legal maneuvers. It came to trial on May 12, 1919, and lasted 98 days. Robert R. McCormick, the publisher of the Tribune, spent $300,000 on the case. Ford spent more.
This was a state case. The trial was held at a neutral site, Mount Clemens in southeastern Michigan.
It was this trial that established Ford as a man who didn't know much about anything but building a car, and caused the expression Henry Fordism to come into the language.
When he took the stand, Ford was unable to say when the United States had become a nation. He had been quoted in the Tribune in 1916 as saying that "history is more or less bunk." He was asked about that. He said,
Ford: I have heard the name.
Q: Who was he?
Ford: I have forgotten who he is; he is a writer, I think.
It was one of the great media events of its time.
2. Thompson and City of Chicago v. Tribune
William Hale Thompson, also known as Big Bill, was mayor of Chicago. He was involved in a series of cases against the Tribune.
The disputes between Thompson and The Tribune began when The Tribune accused the city of not putting up war posters sent by Washington during World War I. Thompson sued. The Tribune renewed its claim.
In all Thompson had four libel suits of $1,350,000 pending.
The Tribune later charged that after six years of Thompson's rule as mayor the city was:
Robert R. McCormick, the publisher of The Tribune, was a staunch believer in freedom of the press. He determined to fight the issue to the end, no matter what the cost.
A trial judge, Harry M. Fisher, ruled in favor of the newspaper in the suit brought by the city of Chicago. Judge Fisher said that if the city's contentions prevailed:
The fundamental right of freedom of speech is involved in this litigation and not merely the right of liberty of the press. If this action can be maintained against a newspaper it can be maintained against every private citizen who ventures to criticize the... government.
Meanwhile, The Tribune had sued members of the Thompson administration seeking a return of $3 million in fees paid for consultants on a bridge built across the Chicago River. The trial began in June 1926 and lasted for two years.
In the end the judge ordered Thompson, Cook County Treasurer George Harding and Improvements Board Chairman Michael Faherty to repay $2,245,604. The decision was overturned on appeal.
This series of suits established McCormick as a champion of press freedom. They helped set the stage for an even bigger confrontation by McCormick involving freedom of the press - the Near case.
Robert R. McCormick and Henry Ford shared the same birthday - July 30. On July 31, 1941, McCormick was 61 and Ford was 78. McCormick wrote this letter to Ford:
It occurs to me on this, our birthday, to write and say I regret the editorial we published about you so many years ago. I only wonder why the idea never occurred to me before.
It was the product of the war psychology which is bringing out so many similar expressions today.
I am not planning to publish this myself, but you are perfectly welcome to use it in any way you wish.
Robert R. McCormick
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Other Supreme Court Decisions
The Constitutional Convention failed to act decisively on the question of slavery and it did not go away. A provision in the Constitution provided that the question would not come before the nation before 1808 (Article 1, Section 9). And 1808 came and went without any action whatsoever.
The first time Congress dealt with the issue was in the Missouri Compromise of 1820. Missouri applied for admission to the union. At the time the 22 states were split evenly between slave and nonslave.
The South contended that the Constitution had approved of slavery. The balance kept the status quo in the Senate.
To keep the balance, Maine was admitted as a nonslave state and Missouri as a slave state. The compromise further drew a line in the middle of the Louisiana Purchase with the territory at the north free.
This set the stage for the Kansas-Nebraska Act of 1854 - and ultimately to the Dred Scott decision.
The Kansas-Nebraska Act gave the territories of Kansas and Nebraska the right to decide for themselves whether or not to allow slavery. This in effect negated the Missouri Compromise.
This led to violence in Kansas and the term "bleeding Kansas."
The Dred Scott Case, 1857
When the question arises as to decisions by the United States Supreme Court that went against what modern constitutional scholars would say, two cases stand out.
The first is the Dred Scott case, technically known as Scott v. Sandford. This case more than any other indicates the feelings of one segment of society just before the Civil War and the unwillingness of the Supreme Court to speak to the issue of slavery.
John Emerson was an Army surgeon who acquired Dred Scott as a personal slave while living in St. Louis in 1833. Emerson took Scott with him when he, Emerson, moved to Illinois and Wisconsin. Neither state recognized slavery. Then Emerson moved to Louisiana where he married Eliza Irene Sanford and then back to St. Louis.
Emerson died, leaving Mrs. Emerson and the Scotts in St. Louis. By now Scott had married Harriet Robinson and eventually they had two children.
Dred Scott sued, claiming that under Missouri law he should be freed under the principle that he had lived in nonslave states. Missouri law followed the dictum, "once free always free." The trial judge sided with Scott.
Mrs. Emerson had remarried and moved away leaving her brother, John A. Sanford, in charge of her affairs. Sanford appealed the ruling of the judge.
The Missouri Supreme Court in 1852 overturned the trial court and the legal precedents his decision had been based on - therefore keeping the Scotts enslaved.
Scott's lawyers then began a new suit in federal court. This was done with the intention of getting the U.S. Supreme Court to rule favorably on the previous Missouri decisions that had declared "once free always free."
It was during this time that the spelling of Sanford was changed somehow in court records to Sandford.
But when the case got to the Supreme Court, it ruled against Scott (and his wife and two children) on March 6, 1857, in a 7 to 2 decision. The chief justice, Roger B. Taney, a former slaver owner, wrote the opinion.
In his opinion Taney said that because Scott was black he was not a citizen and therefore did not have the right to bring a suit. Taney referred to the language in the Declaration of Independence and said that "it is too clear for dispute, that the enslaved African race was not intended to be included, and formed no part of the people who framed and adopted this declaration..."
In his book, A Book of Legal Lists, Bernard Schwartz ranks the Dred Scott decision as the worst in the history of the Supreme Court.
The Oxford Companion to the Supreme Court of the United States makes this statement regarding the case: "American legal and constitutional scholars consider the Dred Scott decision to be the worst ever rendered by the Supreme Court. Historians have abundantly documented its role in crystallizing attitudes that led to war. ... It took the Civil War and the Civil War Amendments to overturn the Dred Scott decision."
Many excellent sources of information are readily available on this and other cases. Among them:
Even the events in the last half of the 19th century failed to curb the enthusiasm in part of the country for a different kind of enslavement: segregation.
In the South, state after state passed so-called Jim Crow laws that created what were euphemistically called "separate but equal" facilities for blacks and whites. The practice was so pervasive that it eventually covered every aspect of life in the South.
The question arose: are these laws constitutional? To decide that question, a group was organized in New Orleans with the intent to challenge the Louisiana segregation laws. Homer Plessy agreed to be the test case. Plessy was a Creole who was one-eighth black. He was classified under the law as "colored."
Plessy was 30 years old and a shoemaker. He bought a ticket on a train from New Orleans to Covington. The conductor was aware of the circumstances, and Plessy was arrested. The date: June 7, 1892.
At the trial, the lawyers for Plessy argued that both the 13th and 14th amendments were applicable. When the Louisiana courts rejected that argument, the case went to the U.S. Supreme Court. The trial judge was John Howard Ferguson, hence the style of the case.
The Supreme Court ruled on May 18, 1896, that the 13th Amendment applied strictly to slavery and that the separation of the races did not imply that one was superior to the other. The court said that long-standing customs of society had to be taken into consideration.
Justice Henry Billings Brown wrote the opinion for the court. The vote was 7 to 1.
The dissenting justice, John Marshall Harlan, wrote one of the most eloquent statements in the history of the Supreme Court.
Here's what Justice Harlan said:
With the Plessy decision to back them up, Southerners intensified the separation of the races and did so with impunity. By the 1950s, Southern life was totally and completely segregated. Even the changes wrought by World War II melted away.
In this context, a new chief justice, Earl Warren, led the Supreme Court in a historic unanimous decision on May 17, 1954 - Brown v. Board of Education. Brown dealt with several instances of segregation in public schools. Warren, writing for the court, said that segregation in schools was unconstitutional.
The decision ended years of work by the National Association for the Advancement of Colored People and its lawyer, Thurgood Marshall.
Although Brown dealt only with the integration of public schools, the case opened a public debate on civil rights and became a catalyst for change.
The Civil Rights Act of 1964 and the Voting Rights Act of 1965 - both pushed by President Lyndon Baines Johnson, helped to finally undo what years of indecision and misdirection had wrought.
One of the best books on such cases as these is The Oxford Companion to the Supreme Court of the United States, edited by Kermit L. Hall and published by Oxford University Press.
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