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From: hoffman@hdsvx1.UUCP (Richard Hoffman)
Newsgroups: misc.legal
Subject: Re: Interesting legal issues
Message-ID: <844@hdsvx1.UUCP>
Date: Tue, 7-Oct-86 11:17:05 EDT
Article-I.D.: hdsvx1.844
Posted: Tue Oct  7 11:17:05 1986
Date-Received: Thu, 16-Oct-86 22:13:01 EDT
References: <752@oswego.UUCP> <2169@j.cc.purdue.edu>
Reply-To: hoffman@hdsvx1.UUCP (Richard hoffman)
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Organization: Schlumberger HDS, Houston
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In article <2169@j.cc.purdue.edu> rsk@j.cc.purdue.edu.UUCP (Wombat) writes:
> ... the premise that the Supreme Court has the duty and the power to
>decide whether or not a certain statute is constitutional is not explicitly
>covered by the constitution; it is generally recognized as having been
>established by Marbury v. Madison., wherein Chief Justice Marshall
>claimed that it was the province of the judiciary to "say what the law is."
>This case marked the beginning of what we now recognize as common practice,
>i.e. the power of the courts to invalidate a statute on the ground that
>it is unconstitutional (or to refuse to do so).

I think it's a little more subtle than that.  In Marbury vs. Madison, a 
group of properly confirmed justices of the peace were asking the court
for a writ of mandamus against Madison, who was holding up the delivery of
their commissions.  Congress, in previous legislation (Judicial Powers Act,
1801) had granted the Supreme Court original jurisdiction to issue such a
writ against government office holders when appropriate.  The court found
that this act conflicted with the constitution, which specified when they
would have original and when they would have appellate jurisdiction.  Their
decision talks not so much about their duty to "say what the law is" as their
more prosaic duty, given *any* two apparently conflicting pieces of law, to
decide which shall apply.  Given this duty, and the fact that the Constitution
must be regarded as the Supreme Law (or else, they argued, what was the point
of establishing it at all?), the power of judicial review arise immediately.

It's interesting that in the Marbury vs. Madison case they used this power
to rule that they did not have jurisdiction -- that is, they refused a new
power offered to them by Congress on the grounds that it was unconstitutional.
-- 
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