Second, and possibly most convincing, is Marshall’s argument on judicial power established in the constitution. It is explicitly stated in Article III, Section 2 that the judicial power of the United States extends to all cases and controversies arising under the constitution, treaties, and other laws of the United States. Implicit in this power is the ability to determine what the constitution, treaties, and other laws of the United States mean in the context of the case before the court; in no other way could the court determine applicability of certain passages of the national law to particular cases and controversies. Thus, it is unavoidable in the discharge of the court’s duties for them to incidentally interpret the meaning of the constitution while determining its applicability to particular cases. Given that the court is thereby required in the exercise of its duties to be conscious of the constitution, and given that Article VI therein provides that the Constitution is the supreme law of the land, it follows logically that cases involving inferior laws may have that law compared to the constitution for determination of their ultimate legitimacy. The only thing missing from this argument is the slight logical leap from stating that the courts may analyze the constitutionality of acts to stating that courts are the only arbiter of what the law is. If the function of analyzing constitutionality is tangential to the primary responsibility of the court, which is to solve cases and controversies under the law, then it is still unclear that the courts should determine the controlling interpretation of the law, or whether their interpretation has weight outside the specific realm of the courts in settling cases.
The third argument of Marshall in favor of substantive review was his highlighting of certain sections of the constitution that either implicitly or directly bind the courts to particular action or restraint from action, which the courts must observe regardless of inferior laws passed to the contrary. For example, the courts are restrained to a certain criteria of evidence in cases of treason in Article III, Section 3. It is necessary for the courts to determine what this section means before it can properly operate in case of treason, and are bound to ignore lesser conflicting statutes. Likewise, for any other controversy arising under the articles of the Constitution it is incumbent upon the court to determine what the law is before rendering its solution to the controversy. Therefore, Marshall argues, the job of review is essential rather than tangential to the duty of resolving controversy under the law. This argument hinges primarily upon the preceding one, and has the same weakness: it is emphatically the role of the courts to say what the law is when dealing with controversies or cases arising under them, but it is not so clear that this role supercedes any other branch’s ability to interpret the constitution. For example, it is not clear why the Supreme Court’s decisions on matters related to the Constitution should have primacy over, for example, Congress’ interpretation of the Constitution.
Marshall’s final argument relates to the oath of office for the Justices of the Court. Simply, since justices swear to uphold the Constitution, he reasoned that it is therefore their job primarily to defend it in a judicial capacity. This argument is quickly found to be absurd, however, when one observes that all officers of the government, whether judicial, executive, or legislative, take that same oath (Article VI). The oath argument is self-defeating because it doesn’t resolve the remaining problem (though all of his arguments) that there is nothing explicit in the constitution or can be reasonably implied by any of its articles to vest more authority in the judiciary than any other branch to determine what the law is. In fact, the oath argument does damage to the argument because it implies that it is the duty of every officer of government to determine what the law is within their areas of duty.
The fulcrum of the original debate on the subject of substantive review was the case of Marbury v. Madison, and the decision to rule unconstitutional Section 13 of the Judiciary Act of 1789 was justified by the above arguments. However, these arguments weren’t predicated upon judicial curiosity but rather upon political necessity. The courts at the time were controlled by Federalists, who were the dire opponents of the Republicans who controlled the Executive. At this point in history, the court had no actual power bound to be respected by the other branches of government regarding their own acts. Thus, the excursion into the untested legal waters of substantive judicial review was a political gamble, and not a necessary one at that. The actual case revolved around jurisdiction, and it was unnecessary to apply a complicated justification to an equally complicated and radical ruling when it would have served to simply argue that in this case, the controlling body of law is the Constitution, and under the Constitution the Supreme Court did not have original jurisdiction over the matter and therefore could not give remedy. Marshall could have argued successfully that since the Judiciary Act of 1789 in part sought to define what was already defined in the Constitution, it was surplusage and therefore invalid as a matter of law. That argument does not hinge upon anything except well established legal principles, and the fact that the ratification of the Constitution occurred prior to the passage of the Judiciary Act.
Politically, Marshall was restrained from granting Marbury his commission, so his duty, in order to preserve the meager power of the courts, was restricted to arguments which result in Marbury losing the controversy. To avoid ruling in favor of Marbury, Marshall had to avoid a situation where rulings of fact would decide the case, and rather had to rely upon a ruling of law which would prevent the court from providing the remedy sought (and deserved). Besides an argument about surplusage, or the more radical argument regarding substantive judicial review, there were no other feasible options since from a factual point of view it was obvious that Marbury was entitled to his commission and further entitled to some sort of remedy.
Ultimately, the entirety of the principle of substantive judicial review was based upon the shaky foundation of the four arguments in Marbury v. Madison, and it is this departure from the English Judicial System, upon which the American Judicial System is based, which is its most conspicuous and noteworthy feature. The politics of the time allowed few other solutions, and the only other effective one did not enhance the power of the court in any substantial way, nor determine with certainty what body has the power to determine emphatically what the law is.
