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In the United States Constitution, nowhere does it explicitly state that the

Supreme Court has the right to deem laws created by other branches

unconstitutional. The court adapted this right to judicial review in Marbury v

Madison, but it is not in the plain language of the Constitution. The court

stated they have the right to judicial review by interpretation and intent of

the framers. The courts usage of judicial review is unconstitutional because it

goes beyond the powers vested to them in Article III of the constitution.

Nowhere in the constitution does it mention judicial review.

In the landmark case of Marbury v. Madison, Chief Justice Marshall wrote

that the court has the power of judicial review although it is not stated

directly in the constitution. In Marshalls reasoning he made many claims as

to why the courts have this power of judicial review. Article III of the

constitution gives the judicial branch the power to take cases and apply

them to the law. If there were two laws that would contradict one another

then it would be the courts job to decide which is unconstitutional. From this

Marshall thought was the key-determining factor that gives the court the

power to decide which laws are constitutional and which laws are not

constitutional. Marshall states that the whole essence of the judicial power

was to apply rules to cases. It would be merely impossible to apply rules if

they are unable to interpret them to some aspect. The constitution is the

supreme law, if a rule is not in accordance to the constitution then the court
must be able to deem it unconstitutional, if not they would be turning a blind

eye to the constitution (Marshall, PG. 10).

Although Marshall makes a valid point for the need of judicial review, it is

still unconstitutional because they are extending their powers beyond what

was granted to them. If you examine Article III of the constitution, it lists

every case in which the court has jurisdiction. Never does it mention the

Supreme Court or lower courts having jurisdiction over other branches of

government. In Eakin v. Raub, Justice Gibson states that the branches of our

government may possibly been created to be equal, but they all have their

own powers and they must not intervene with the powers of the other courts.

The legislative branch has the powers to create laws; therefore it has the

power to construct our constitution. The legislative branch is the only branch

that has the power to determine if their own actions are in accordance with

the constitution, not the judicial branch. The judicial branch by judging the

acts of the legislative, crosses the line of the their official duties. The

legislative branch had clear limits under the constitution on what it may or

may not do. However, the judicial branch was given very little limits and

rights under Article III. This is why it is so often left open for much

interpretation. Instead of leaving it up for interpretation, we should view it as

being this way because it is a limited branch. The basis of the judicial branch

is to make judgments on cases and nothing further than that. It may truly

be said to have neither force nor will, but merely judgment, and must
ultimately depend upon the aid of he executive arm even for the efficacy of

its judgments(Madison, Paragraph 5)

Under The Supremacy Clause in Article VI of the Constitution, every

government official is to take an oath to support the constitution. The

Senators and Representatives before mentioned, and the members of the

several state Legislatures, and all executive and judicial Officers, both of the

United States and of the several states, shall be bound by Oath and

Affirmation, to support this Constitution (Article VI pg. D9) Gibson, in his

dissent in Eakin v. Raub, saw a problem with the judges assuming this meant

the right to regard laws unconstitutional. Taking an oath to support the

constitution only goes as far as the duties in which they are responsible for.

The judges are there to judge facts of cases against laws. Their oath does not

extend their right to pass judgments on the constitutionality of the legislative

branch. It must be understood in reference to supporting the constitution,

only as far that may be involved in his official duty(Gibson, PG.16) Gibson

here is striking down a very clear argument used for the need for judicial

interpretation. Yes, all government officials hold a duty to act in accordance

to the constitution but in no way does that give them an official right to go

beyond the powers vested in them by the constitution itself.

Marshall had stated in Marbury v. Madison that judicial review was

necessary so congress would not be corrupt. Congress could allegedly pass

an act that goes against the constitution. The concern is, if there was no

judicial review then there would be no one there to stop them from creating
laws that goes against our constitution. Congress in theory would be going

against their powers and altering the constitution. However, Marshall seems

to ignore the fact that congresses are elected officials. They easily can be

voted out of office, they most likely would not be in the business of passing

laws that would be considered dangerous to our constitution.

Article VI of the constitution, can be used to show that the intent of the

framers was not judicial review by the Supreme Court. It states that state

judges must only enforce laws that are in accordance to the constitution.

States are not to enforce any law that is unconstitutional. This clause shows

that the framers took state judges into consideration but not federal when

determining what is constitutional. It focuses on state judges passing

judgment on laws created by congress and the executive branch, but fails

completely to mention the federal judiciary branch. (Bickel PG.9) This can be

taken to show that the courts thought of the possibility of congress passing

laws that were unconstitutional, but failed to bring federal judges up in the

case. If they were seriously concerned with congress passing laws

unconstitutional, they would have possibly mentioned the judicial branch

playing a part in the decision.

As previously stated, nowhere in the constitution does it say the courts are

responsible for judicial review. This leads to the argument that any branch

should therefore be able to practice reviewing of laws constitutional. Marshall

argued that the constitution does not limit the court on practicing judicial

review. Because judicial review is left out of the constitution completely, it

leaves it open for much debate. It can easily be turned around the other way

and be said that the executive branch can do judicial review, because it is

not explicitly stated. This is a weak argument because the courts are often

seen to have the least amount of power. By allowing the courts the power to

judicial review, it in turn allows them to govern the legislative branch. If we

allow them to govern the legislative branch then it is a clear abuse on the

system of checks and balances. The opinion which gives to the judges the

right to decide what laws are constitutional and what not, not only for

themselves in their own sphere of action but for the Legislature and

Executive also in their spheres, would make the Judiciary a despotic

branch."(Jefferson Paragraph 4) While Marshall feared congress would have

too much power without judicial review, but it is clear with judicial review it

leaves the courts with too much power. Jefferson went on to say that judicial

branch, as the most powerful branch would be the most terrifying thing

because of the power of office in which they hold. Our whole government is

based on a system of equal branches within the government. It goes against

the whole focus of the constitution.

Judicial review is unconstitutional by the plain text of the constitution. We

must not look at what to interpret from the intent of the framers. In no way

does the constitution give light to the issue of judicial review nor does it give

that kind of power to the judiciary branch. If any branch has the power to

review laws in accordance to the constitution it would be the legislative

branch because the powers to create laws are vested in them. Each branch is
given specific rights and limitations in the constitution and are not to go

beyond their given powers. To abuse their powers would result in a clear

defiance of checks and balances. In no way does the court have authority of

any other branch. The courts review of the constitutionality of laws passed is

a clear violation of the constitution.