Ridgway, Whitman H.

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Maryland Law ReviewVolume 47 | Issue 1 Article 19The Role of the Supreme Court: Introduction byWhitman H. RidgwayWhitman H. RidgwayFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Legal History, Theory and Process CommonsThis Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted forinclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationWhitman H. Ridgway, The Role of the Supreme Court: Introduction by Whitman H. Ridgway, 47 Md. L. Rev. 115 (1987)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol47/iss1/19THE ROLE OF THE SUPREME COURTINTRODUCTION BY WHITMAN H. RIDGWAY*The role of the Supreme Court in our constitutional system hasbeen the subject of lively debate over the past two hundred years.Article III of the Constitution vested all judicial power "in onesupreme Court, and in such inferior Courts as the Congress mayfrom time to time ordain and establish."' The supremacy clause ofarticle VI made the Constitution the supreme law of the land andbound the state and federal governments to it.2 What was left un-said, however, was which branch of government has the responsibil-ity to decide whether a law is constitutional.The founding fathers considered alternative methods to dealwith laws deemed to be inconsistent with the Constitution. In theVirginia Plan presented at Philadelphia in May 1787, James Madisonproposed the creation of a Council of Revision, composed of theExecutive and a convenient number of the National Judiciary, to ex-amine federal and state acts and to reject those which it found want-ing.3 The founding fathers rejected this plan, adopting one dividingsuch power between the Executive,4 who could veto congressionallegislation, and the judiciary.5Both the Federalists and Anti-Federalists recognized that thepower of judicial review was implicit in the design of the Constitu-tion. As Alexander Hamilton wrote in The Federalist No. 78: "A con-stitution is, in fact, and must be regarded by the judges as, afundamental law. It therefore belongs to them to ascertain itsmeaning as well as the meaning of any particular act proceedingfrom the legislative body."6 Anti-Federalist writers, such as Brutus,made essentially the same point: "[T]he supreme court has thepower, in the last resort, to determine all questions that may arise inthe course of legal discussion, on the meaning and construction of* Associate Professor of History, University of Maryland College Park.1. U.S. CONST. art. III, § 1, cl. 1.2. Id. at art. VI, cl. 2.3. See Virginia Resolutions Presented to the Constitutional Convention on May 29,1787, reprinted in M. KAMMEN, THE ORIGINS OF THE AMERICAN CONSTITUTION 24 (1986).4. See U.S. CONST. art. I, § 7.5. See id. at art. III, § 2.6. THE FEDERALIST No. 78, at 467 (A. Hamilton) (C. Rossiter ed. 1961).MARYLAND LAW REVIEWthe constitution."' 7 The First Congress affirmed the principle ofju-dicial review in section 13 of the Judiciary Act of 1789,8 which de-fined the Supreme Court's appellate jurisdiction.The most forceful statement of judicial review was made byChief Justice John Marshall. He wrote in Marbury v. Madison9 asfollows:[I]f a law be in opposition to the constitution; if both thelaw and the constitution apply to a particular case, so thatthe court must either decide that case conformably to thelaw, disregarding the constitution; or conformably with theconstitution, disregarding the law; the court must deter-mine which of these conflicting rules governs the case.This is the very essence of judicial duty.' 0There was only one logical conclusion to this problem: "[A] lawrepugnant to the constitution is void; and ... courts, as well as otherdepartments, are bound by that instrument.""Several Presidents have dissented from this view. WhileThomas Jefferson was unhappy with Marshall's interpretation at thetime, Andrew Jackson would make the most vociferous challenge tojudicial supremacy. Contrary to the ratification debate, whichplaced the will of the majority in the legislature, Jackson argued thatthe people gave the President an electoral mandate that includeddeciding what was constitutional and what was not. 2 Such amajoritarian view has been echoed by other strong Presidents.The most recent public debate on the proper role of theSupreme Court and the doctrine of judicial review has been evidentin speeches by Attorney General Edwin Meese III, and SupremeCourt Justice William J. Brennan, Jr. In a lecture at Tulane Univer-sity in October 1986 Mr. Meese observed:Once we understand the distinction between constitutionallaw and the Constitution, once we see that constitutionaldecisions need not be seen as the last words in constitu-tional construction, once we comprehend that these deci-sions do not necessarily determine future public policy-once we see all of this, we can grasp a correlative point:7. Brutus, Essay No. XII, in THE ANTI-FEDERALIST 168 (H. Storing ed. & M. Dry abr.1985).8. Judiciary Act, ch. 20, § 13, 1 Stat. 73, 81 (1789).9. 5 U.S. (1 Cranch) 137 (1803).10. Id. at 177.11. Id. at 179 (emphasis added).12. See R. REMINI, 3 ANDREW JACKSON AND THE COURSE OF AMERICAN DEMOCRACY1833-1845, at 338-40 (1984).116 [VOL. 47:115

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