On February 24, 1803, the Supreme Court of the United States handed down arguably the most important decision in its entire history—Marbury v. Madison. It was Chief Justice John Marshall—a Hamiltonian and no fan of limited government—who provided the opinion, which would change the face of the Court and its power forever.
The ruling itself is not what makes this case so significant. Rather, it is the power that the Court assumed while delivering this ruling that begs our attention—the power of judicial review. To most, the concept of judicial review is nothing controversial. Why would it be? Judicial review is merely the practice of the judicial branch overturning legislative and executive action it deems unconstitutional. In fact, a number of courts throughout the democratic world have this power expressly noted in their foundational documents. So what is the big deal?
First, the Constitution allows for no such judicial power. In fact, I am certain it forbids such power. Second, it is a dangerous doctrine that eats away at the very heart of our system of checks and balances. (Read the rest here.)