Eakin v. Raub
Marshall V. Gibson: Head To Head
Justice Marshall offered a number of justifications for the conclusion that the judiciary has the power to declare void legislative acts which are contrary to the Constitution, despite the fact that the Constitution provides no such explicit power. Justice Marshall first supported the theory of judicial review by reasoning that the power of judicial review is necessary to preserve a written constitution as the law which is superior to all other legislative acts. In Marshall's view, if a court cannot strike down a law which violates the Constitution, then the legislature may, in effect, amend or repeal the Constitution by simply passing laws, rather than formerly amending the Constitution. Justice Gibson countered that a constitution may be better preserved by the citizens of the state, and not the courts. He reasoned that "it rests with the people, in whom full and sovereign power resides to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act." He reasoned that any powers not expressly granted in a constitution are reserved to the people, who are the ultimate sovereigns in a democratic regime. Thus, he concluded, while it may be wise to allow the courts to exercise this power, the people, in forming the constitution, did not do so, and the courts may not do so on their own.
Justice Marshall next justified his theory of judicial review on the argument that the legislature only has authority granted to it by the Constitution, and thus because the legislature has no authority to pass a law which is prohibited by the Constitution, the law is simply void of itself, even without a court declaring it so. Again, Justice Gibson countered this reasoning. In Justice Gibson's view, this merely elevated the judiciary above the legislature, although it does not necessarily follow that a court's opinion on the matter is more correct than the legislature's: "But it will not be pretended that the legislature has not at least an equal right with the judiciary to put a construction on the constitution; nor that either of them is infallible; nor that either ought to be required to surrender its judgment to the other." Yet, in Justice Gibson's view, judicial review requires just that; the legislature must surrender its judgment to the judiciary.
Justice Marshall, in his Marbury opinion, also justified the power of judicial review on the ground that, if a court enforces an unconstitutional law, then the court itself is committing its own act in violation of the Constitution. Justice Gibson, in his Eakin dissent, concluded that this was merely a reformulation of Marshall's previous argument. Justice Gibson concluded that Marshall's argument follows only if it is assumed that the judiciary has authority over the legislature to declare laws unconstitutional. If it does not, as Gibson thought, then a court is making no affirmative act when it does not strike down an unconstitutional law.
Justice Marshall's fourth asserted reason for concluding that a court has the power to strike down unconstitutional laws was that judges are required by the constitution to take an oath supporting the Constitution. Justice Gibson, however, found this reasoning to be circular. In his view, this oath required a judge to uphold the Constitution in the exercise of his ordinary judicial powers. Only if it is assumed that the ordinary judicial power includes the power of judicial review does the oath to uphold the Constitution require a judge to declare an unconstitutional law void. However, as Justice Gibson noted, the foundation of this argument is nothing more than "an assumption of the whole ground in dispute," that is, the argument assumed its own conclusion.
Justice Gibson concluded by reasoning that the Constitution grants to the courts only the "judicial power," but does not define what is meant by that phrase. However, he disagreed with the assumption that the judicial power includes the power to declare unconstitutional laws void. Rather, in his view, based on the common law development of the courts, "[i]t is the business of the judiciary to interpret the laws, not scan the authority of the lawgiver." Thus, he concluded, "it rests with the people, in whom full and absolute sovereign power resides, to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act." Ultimately, Chief Justice Marshall's view as expressed in Marbury carried the day, and it is virtually unquestioned that the courts have the power to declare laws contrary to the Constitution void. Yet, Justice Gibson's opinion remains a stark reminder of the somewhat tenuous foundation upon which this power is based, and reveals some of the political and judicial philosophies underlying Marshall's decision in Marbury, not the least of which was to "flex the Court's muscle." Thus, as Charles Haines observed on page 284 of his work on judicial supremacy, "[a]ny one who considers the opinion [of Judge Gibson] can readily perceive that reason and logic had comparatively little weight with those who resolutely set about to make judicial review a part of the American political system."