Article III, Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Judicial power is the power
of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision. 1 It is
the right to determine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction. 2 The terms
judicial power and
jurisdiction are frequently used interchangeably, with
jurisdiction defined as the power to hear and determine the subject matter in controversy between parties to a suit 3 or as the
power to entertain the suit, consider the merits and render a binding decision thereon. 4 The cases and commentary however, support, indeed require, a distinction between the two concepts.
Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case. 5 Judicial power confers on federal courts the power to decide a case and to render a judgment that conclusively resolves a case. Included within the general judicial power are the ancillary powers of courts to punish for contempt of their authority, 6 to issue writs in aid of jurisdiction when authorized by statute, 7 to make rules governing their process in the absence of statutory authorizations or prohibitions, 8 to order their own process so as to prevent abuse, oppression, and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law, 9 to appoint masters in chancery, referees, auditors, and other investigators, 10 and to admit and disbar attorneys. 11
Shall Be Vested
The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words
shall be vested in § 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary, 12 the Constitution has not been read to require that Congress confer the entire jurisdiction it might. 13 Thus, except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution, two prerequisites to jurisdiction must be present: first, the Constitution must have given the courts the capacity to receive it, 14 and, second, an act of Congress must have conferred it. 15 The fact that federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that jurisdiction exists and may not confer nonexistent jurisdiction by consent or conduct. 16
The Establishment of Judicial Review
Judicial review is one of the distinctive features of United States constitutional law. It is no small wonder, then, to find that the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds is nowhere expressly conveyed. But it is hardly noteworthy that its legitimacy has been challenged from the first, and, while now accepted generally, it still has detractors and its supporters disagree about its doctrinal basis and its application. 17 Although it was first asserted in Marbury v. Madison 18 to strike down an act of Congress as inconsistent with the Constitution, judicial review did not spring full-blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters, 19 and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. 20
Practically all of the framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, 21 and prior to Marbury the power seems very generally to have been assumed to exist by the Justices themselves. 22 In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power, 23 and in other debates questions of constitutionality and of judicial review were prominent. 24 Nonetheless, although judicial review is consistent with several provisions of the Constitution and the argument for its existence may be derived from them, these provisions do not compel the conclusion that the Framers intended judicial review nor that it must exist. It was Chief Justice Marshall's achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional jurisprudence.
Marbury v. Madison
Chief Justice Marshall's argument for judicial review of congressional acts in Marbury v. Madison 25 had been largely anticipated by Hamilton. 26 Hamilton had written, for example:
The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. 27
At the time of the change of administration from Adams to Jefferson, several commissions of appointment to office had been signed but not delivered and were withheld on Jefferson's express instruction. Marbury sought to compel the delivery of his commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction against Secretary of State Madison. Jurisdiction was based on § 13 of the Judiciary Act of 1789, 28 which Marbury, and ultimately the Supreme Court, interpreted to authorize the Court to issue writs of mandamus in suits in its original jurisdiction. 29 Though deciding all the other issues in Marbury's favor, the Chief Justice wound up concluding that the § 13 authorization was an attempt by Congress to expand the Court's original jurisdiction beyond the constitutional prescription and was therefore void. 30
The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States, Marshall began his discussion of this final phase of the case,
but, happily, not of an intricacy proportioned to its interest. 31 First, Marshall recognized certain fundamental principles. The people had come together to establish a government. They provided for its organization and assigned to its various departments their powers and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose
if these limits may, at any time, be passed by those intended to be restrained. Because the Constitution is
a superior paramount law, unchangeable by ordinary means, . . . a legislative act contrary to the constitution is not law. 32
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? The answer, thought the Chief Justice, was obvious.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. 33
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. 34
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. 35 To declare otherwise, Chief Justice Marshall said, would be to permit the legislature to
pass[ ] at pleasure the limits imposed on its powers by the Constitution. 36
The Chief Justice then turned from the philosophical justification for judicial review as arising from the very concept of a written constitution, to specific clauses of the Constitution. The judicial power, he observed, was extended to
all cases arising under the constitution. 37 It was
too extravagant to be maintained that the Framers had intended that a case arising under the constitution should be decided without examining the instrument under which it arises. 38 Suppose, he said, that Congress laid a duty on an article exported from a state or passed a bill of attainder or an ex post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated them to support the Constitution and to enforce such laws would violate the oath. 39 Finally, the Chief Justice noted that the Supremacy Clause (Art. VI, cl. 2) gave the Constitution precedence over laws and treaties, providing that only laws "which shall be made in pursuance of the constitution" shall be the supreme law of the land. 40
The decision in Marbury v. Madison has never been disturbed, although it has been criticized and has had opponents throughout our history. It not only carried the day in the federal courts, but from its announcement judicial review by state courts of local legislation under local constitutions made rapid progress and was securely established in all states by 1850. 41