The Power of Judicial Review

The late 1700s and early 1800s were a time full of expansion and innovation in the United States of America. The country was getting bigger, both in population and in geographic size, and the government was getting more powerful as well. This was because of the new Constitution that was put into place in 1787 that replaced the Articles of Confederation and took most of the power away from the individual states and gave it to the federal government. When the Constitution was ratified, both Brutus (believed to be Robert Yates), and Alexander Hamilton were in a debate over the potential power of the federal government, and more specifically, the power of the Supreme Court in Federalist 78 and Brutus’ eleventh and twelfth letters. Alexander Hamilton supported the proposed system and expressed his belief that the judiciary did not have too much power by any means. Brutus was more concerned that the court would simply side with the government and would therefore have too much power over the states. In 1803 one of the biggest landmark cases ever reached the Court, Marbury v. Madison. This case was not directly about the power of the court, but similar to most Supreme Court cases, it turned into a debate about something more crucial. By reading John Marshall’s opinion on the Marbury v. Madison case, it is apparent that Brutus originally had the better idea about the Supreme Court’s power due to his overwhelming wisdom and excellent foresight into what the judiciary would eventually become.
In Brutus XI and XII, Brutus wanted to express a widely seen concern about the power of the Judiciary arm of the government. The Constitution and the Federalists both had an ample amount of things to say about the executive and legislative branches, but...

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...hat Congress had no power to change the original jurisdiction, therefore finding the Judiciary Act unconstitutional. This is where the problem of judicial review arose in this case. Marshall found an act of congress unconstitutional and declared it null and void. This meant that Marbury, in addition to the rest of the judges and justices added by Adams, never had the right to be in the position they were in, and therefore Madison did not have to issue their commissions.

Brutus’ concerns in his eleventh and twelfth letters are most similar to the circumstances that existed at the time of Marbury v. Madison. Although the case did limit the court’s power in one way, it established the much larger and more significant power of judicial review. Marshall declared that it is the duty of the judiciary to decide what the law is and to resolve any conflict between two laws.