200-Year-Old Judicial Decision Still Echoes Worldwide

Judge George M. Marovich

Judge George M. Marovich (N.D. Ill.) wrote the following retrospective view celebrating the 200th anniversary on February 24, 2003, of the Supreme Court opinion in Marbury v. Madison.

Having fought a Revolutionary War to shake off the tyranny of the British Crown, the former American colonists had no desire to subject themselves to a new tyranny, even if it were the will of the majority. In writing the Constitution and particularly the Bill of Rights, the framers sought to put out of the reach of the majority certain basic rights. It was their strongly held conviction that individuals are endowed with certain rights that are inalienable, even by action of legitimately constituted governments.

The question arose as to who would determine if any of the branches of government had crossed the crucial boundary between what was consistent with the Constitution and what was an arbitrary exercise of power. On
February 24, 1803, the definitive answer came from Chief Justice John Marshall when he delivered the opinion of the court in the famous case of Marbury v. Madison. "It is emphatically the province and duty of the judicial department to say what the law is," said Marshall. The doctrine of judicial review was born—the concept of an independent Supreme Court with the authority to invalidate unconstitutional legislative acts and keep the government within the bounds of a written constitution.

Marbury has influenced constitutional thinking in most of the world. Some control of the constitutionality of legislation must exist outside the legislature itself if the Constitution’s status as higher law is to be meaningful. The trend in Western countries is strongly toward increasing recognition of this point, although very few have carried it as far as the United States in accepting the idea of judicial supremacy.

England has no written constitution. Courts will issue a ruling of "incompatible" in case of irreconcilable conflict but Parliament retains supremacy in dealing with the ultimate resolution of such conflicts. Parliament is supreme in the Netherlands as well. In France, the Constitutional Council can examine the constitutionality of a proposed statute only before it becomes law and citizens have no right to petition.

In New Zealand, a central constitutional tenet is parliamentary supremacy—courts cannot strike down laws passed by Parliament. In neighboring Australia, judicial review is exercised in accordance with Marbury and in India, Supreme Court decisions are binding on all courts, and that court has the power to declare a law or governmental practice unconstitutional.

Eastern Europe has a different legal history and culture, but when communism collapsed, most states in the region began to implement the political and economic reforms that would lead to democracy and a free-market economy. As a member of the U.S. Judicial Conference Committee on International Judicial Relations, it has been my honor and privilege these past few years to be involved with judicial leaders in these countries as they pursued judicial reforms.

These countries inherited a system that had a totally different view as to the purpose of law. Whereas the rule of law is seen in the United States and the democracies of Europe as having faith in constitutionalism and a belief that government itself is limited by law, it had a different purpose in Soviet society.

The Soviet bureaucracy, like its tsarist predecessors, sought to control society through law. The law had nothing to do with the defense of human rights or placing limits on the power of the state. Judges were under the control of the Communist Party, and were subservient to prosecutors and the Ministry of Justice. The law and the justice system were the tools of the state, used to advance state powers and control the citizenry.

In most of the Eastern European counties, like Russia, the transition to an independent judiciary remains incomplete and will depend on further reforms. The biggest change is a change of attitude. Independence and freedom are heady stuff and very contagious. The people are beginning to feel that their constitution is alive and has meaning. Judges have a greatly improved sense of self worth and are confidently asserting their independence. They have been exposed to judges from other countries and know how they are perceived and how they function.

Ultimately, these countries will decide for themselves what legal framework best suits their society, and it would be arrogant to suggest that the "American way" is the best or only way of doing anything.

Nevertheless, the concept of judicial independence, if not total acceptance of the doctrine of judicial review, is one of our greatest exports.

More on Marbury v. Madison

		As part of the Judiciary’s national educational outreach initiative, on-line lesson plans exploring Marbury v. Madison have been developed for use by educators. To access the plans, visit www.uscourts.gov/outreach/marburyvmadison.htm. The site includes five lesson plans that can be used singly or as a multi-part program. Students will learn how judicial review contributes to the government’s system of checks and balances, how it helps to maintain the Rule of Law, and how it fosters a stable, constitutional democracy.
	www.uscourts.gov/outreach/marburymadison.htm

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