By creating a Constitution, it is assumed that the people are going to agree to it as the law of the land. The Supreme Court is responsible for upholding the Constitution by interpreting the laws for the benefit of the people. The justices would be violating their oath if they were to oblige this obligation. If the Constitution were not the law of the land, why would it exist? This is the justification for judicial review, or the right of the court to declare legislative or executive unconstitutional. The Constitution states in article III, section 2 that, “The judicial power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” (Shafritz and Weinberg 16). Therefore, Judicial review is an implied power that determines whether or not legislation is constitutional and is necessary for the protection of the Constitutional rights of the people.
The judiciary is not a representation of a particular party as it is in the legislative and executive branches. Although justices belong to different parties and they may have views determined by their political beliefs, the role of a justice is to carefully determine and interpret laws based on the Constitution. To do this, they must provide legitimate reason to defend their decisions and therefore, judicial review is beneficial for a successful nation.
As a result of Marbury v. Madison, the Supreme Court found that it did not have jurisdiction over the case and therefore could not issue a writ of mandamus. This is the first instance of judicial review by the Supreme Court. Regarding judicial review, Chief Justice John Marshall wrote in his opinion that, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." (Shafritz and Weinberg 364). He reasoned that judicial review is needed in order to preserve the Constitution as the supreme law of the land over any other legislative act. He believed that his branch has the right to check the other two branches to make sure that all action that was taking place was constitutional because the legislative branch only has the authority given to it by the Constitution and cannot pass a law that is unconstitutional. Without judicial review, the legislative and executive branches would be able to act without boundaries and therefore, the Constitution would not be upheld. Thus, the Judicial Branch grew stronger with a right to disregard those issues that were unconstitutional.
The opinions of Chief Justice Marshall and Alexander Hamilton are synonymous. Although he never explicitly states in Federalist 78 that judicial review is necessary, Hamilton implies it in the piece:
The interpretation of the laws is the proper and...