Monday, September 18, 2006


Eakin v. Raub: The Case Against Judicial Review

Not everyone saw the ruling in Marbury v. Madison giving the Judiciary the power to overrule acts of Congress to be plainly correct. The ruling in Marbury was criticized in the dissent in the case of Eakin v. Raub, 12 S. & R. 330 (Pa. 1825).

Justice Gibson wrote that if the Congress must live within the power of the Constitution which creates it, then so must the Judiciary. He wrote that “It is the business of the judiciary to interpret the laws, not scan the authority of the lawgiver...” Of course, one might ask, who but the judiciary is best suited to do this important task? Gibson answered that it was best left to the people. He said:

"For these reasons, I am of the opinion, that it [the power to limit Congress] rests with the people, in whom full and absolute sovereign power resides, to correct abuses of legislation, by instructing their representatives to repeal the obnoxious act."

Those who agreed with Justice Gibson would also argue that if there were no judicial review to stop Congress from passing unconstitutional acts, then the Congress itself would be much more concerned with whether or not an act was constitutional when enacted. There would be no blithe arguments such as: "Well, let's go ahead and pass it and if it's unconstitutional, the Supreme Court will tell us."

Further, while Gibson realized that a group of professionals like the Courts, with their attendant lawyers on staff might be better suited to address such questions, he argued that the Judiciary itself isn't infallible. If it is wrong to have no remedy for an error by the legislature, why isn't it also wrong to have no remedy to an error by the Supreme Court?

Justice Marshall did not invent the concept of judicial review out of thin air. The concept has been traced all the way back to the English jurist, Lord Coke (pronounced “cook”) who famously stated in Dr. Bonham’s Case, 8 Co. 113b, 118a (1608):

"And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void; For when an act of Parliament is against the common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void."

This statement however, did not accurately describe the state of English law, either at the time, nor what it eventually became.

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