Marbury vs. Madison (5 U.S. 137, 1803) involved an application for a writ of mandamus against the then Secretary of State Madison, directing him to deliver to Marbury his commission as a Justice of the Peace for the District of Columbia. In determining whether or not mandamus would lie, the Supreme Court made a four part inquiry involving the following questions, to wit: 1) whether or not the applicant Madison has a right to the commission he demands; 2) in the affirmative, whether or not the laws of the United States afford him a remedy for its violation; 3) in the affirmative, whether or not mandamus is the proper remedy.
The case is considered a landmark case, because it was the first time that the US Supreme Court, through then Chief Justice Marshall, enunciated the doctrine of judicial review, i.e., that the Supreme Court has the power to review federal or state legislation, or acts of government officers and other individuals, to determine whether or not they are in consonance with the provisions of the Constitution, and to strike down such laws and acts if they are found to be unconstitutional. Specifically, Chief Justice Marshall stated that: “”If an act of the legislature, repugnant to the constitution, is void, does it notwithstanding its invalidity, bind the courts, and oblige them to give it effect?…
It is emphatically the province and duty of the judicial department to say what the law is…If two laws conflict with each other, the courts must decide on the operation of each (5 U.S. 137, 178). So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty” (5 U.S. 137, 179).
Over the years, the doctrine of federal and state judicial review has been developed and enhanced, despite there being no express provision on its grant to the judicial branch of government under the constitution. In interpreting the constitution, there are generally six forms of construction that are usually applied, i.e., historical, textual, structural, doctrinal, ethical, and prudential (Fallon, 1987).
The historical construction centers on the original legislative intent behind the provision, while the textual interpretation involves the text itself, and the structural interpretation contrasts the text with the structure given in the constitution. Ethical and prudential considerations generally involve a determination of whether or not it would be proper, ethical, or wise to make a ruling. The doctrinal form of construction involves another doctrine, that of stare decisis.
The complete Latin term is stare decisis et non quiete movere. Literally translated, it means “stand by decisions and do not move that which is quiet.” The doctrine of stare decisis or of case precedents is one of the central tenets of a common law legal system. Past precedent generally circumscribes the leeway by which a court can address a certain issue, because the rule is that once something has heretofore been judicially determined, then that is all there is to it. “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . .
This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error so fruitful in the physical sciences, is appropriate also in the judicial function” (Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 1932).
For some justices, the doctrine of stare decisis would be no doctrine at all, if overruling justices gave reasons that did not go beyond pointing out that the previous decision was wrong (Nelson, 2001). This presents a huge burden on the exercise of judicial review, especially since cases hinging on the constitutionality of statutes are usually considered landmark cases and are the basis for applying the stare decisis doctrine.
The main arguments against the doctrine of judicial review are against its validity, in that, as mentioned, it is not specifically vested as a power of the judiciary in the constitution, and that it goes against the doctrine of stare decisis. The proponents of the validity of judicial review would rely on the broad definition of judicial power under the constitution, and the fact that it has been long recognized and accepted in other common law jurisdictions.
If judicial review were considered an absolute power, it would definitely undermine the common law doctrine of stare decisis, because judges and justices would be given free reign to determine what the law is and apply their interpretations on a case to case basis whenever they saw fit. However, to think that either judicial review or stare decisis are absolutes would be absurd, because no government power is absolute.
Instead of focusing on an apparent conflict or adverse relationship between the two, it is submitted that despite the criticisms against judicial review, it is an inherent function of judicial power, and should be harmonized with the stare decisis doctrine. One author proposes thus: “Even in cases of first impression, judges do not purport to have unconstrained discretion to enforce whatever rules they please. Many of their arguments appeal instead to external sources of law, like statutes or established customs.
These external sources of law will often be indeterminate and incomplete; they will leave considerable room for judicial discretion. But unless they are wholly indeterminate, they will still tend to produce some degree of consistency in judicial decisions. If …the primary purpose of stare decisis is to protect the rule of law by avoiding an endless series of changes in judicial decisions, we may be able to achieve this purpose without applying a general presumption against overruling past decisions.
We may, in short, be able to refine the doctrine of stare decisis to take advantage of the consistency that would tend to exist even in its absence” (Nelson, 2001). The doctrine of stare decisis is about stability, while judicial review is about fairness and justice. Applying both and harmonizing their purposes would allow for flexibility and wisdom, especially in cases when past decisions are not on all fours with the facts of the case at hand.
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932) (dissenting opinion by Justice Brandeis).
Fallon. (1987). A Constructivist Coherence Theory of Constitutional Interpretation. 100 Harv. L. Rev. 1189.
Marbury vs. Madison, 5 U.S. 147 (1803).
Nelson, C. (2001). Stare Decisis an
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