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Judicial Review

    Before examining the Marbury decision itself, we will take a look at the historical and political backdrop against which the case was decided. The developments that occurred between the signing of the Declaration of Independence in 1776 and the framing of the Constitution in 1787 were critical to the emergence of judicial review as a part of our democratic scheme of government. Equally important were some of the events that transpired during the early years of the new federal government. Only with this setting in mind can we fully appreciate the significance of Marbury v. Madison.

    §1.2.1 Independence and the Articles of Confederation

    When the American colonies jointly issued the Declaration of Independence, thereby severing their ties with Great Britain, the colonists’ goal was not to create one new nation. Rather, their aim was to transform these former British colonies into 13 “free and independent states,” each possessed of all the sovereignty and nationhood that Great Britain herself enjoyed. At the same time, it was clear to these newly independent states that they would need to cooperate in certain matters. It was especially important that they band together in conducting the War of Independence with England. To this end, the Continental Congress approved the Articles of Confederation in 1777, and sent them to the states for ratification. Though the Articles were not fully ratified until 1781, they were nonetheless implemented in the interim.

    The Articles of Confederation did not establish a new national government. Instead, the Articles merely created an alliance or confederation to which the 13 former colonies belonged. Under that system, “the States retained most of their sovereignty, like independent nations bound together only by treaties.” Wesberry v. Sanders, 376 U.S. 1, 9 (1964). The confederation in some ways resembled today’s United Nations: It possessed no independent power of its own and relied for its success on the acquiescence of its member states. While the Articles provided for a Congress of the Confederation, there was no executive or judicial branch. The Congress possessed only limited powers. It had authority to conduct the war, but could not impose taxes to finance the effort. The Congress had limited power to enact laws, but had no means of enforcing them; instead, compliance depended entirely on the voluntary cooperation of the states—cooperation that was not always forthcoming. In short, under the system created by the Articles of Confederation, the states retained virtually all the powers of government.

    §1.2.2 The First State Constitutions

    How did these 13 fully sovereign states govern themselves after 1776?[1] Once they formally severed their ties with England through the Declaration of Independence, most of the former colonies had to replace their old colonial charters with new state constitutions. These new instruments of government were a direct reaction to the type of government that had existed during the period of English colonial rule.

    The form of government in each of the colonies had been determined by the royal charter issued by the King of England to the corporation that had settled the colony. The typical charter provided for a government consisting of an assembly chosen by the people, a governor and council appointed by the King, and a judiciary selected by the King. On its face, this scheme reflects a separation of powers into three distinct branches—legislative, executive, and judicial. In fact, governing power resided with the governor and council who, in addition to their executive duties, exercised both legislative and judicial functions. In most of the colonies, the governor’s council sat as the upper house of the legislature, enabling it to block measures passed by the popular assembly. The governor and his council also served as a court of appeals in civil cases, thereby giving them effective control over the judiciary. Thus, during the colonial era, the legislative assembly was the only part of government that was directly accountable to the people.


    [1]For a more thorough discussion of the ideas presented in this and the following two sections, see Gordon S. Wood’s superb study, The Creation of the American Republic, 1776-1787 (Norton Library ed., 1972).

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