Where in our Constitution does it state that the Supreme Court has the power to over-rule and declare as unconstitutional acts by our President and Legislature? Nowhere! This was precisely a key issue facing our Founding Fathers in their trying to creating a nation based upon individual rights that never previously existed. With little historical sources to guide them, our Founding Fathers created a three part government (Executive, Legislature and Judiciary) with the weakest, ill-defined power to the Supreme Court, leaving that issue for future generations to resolve. The Supreme Court was originally considered so weak that some nominees rejected accepting appointments to the Supreme Court, preferring appointments to higher regarded State Supreme Courts. It is questionable if our nation, as we know it, would have survived with unlimited, unchecked power to our President or Legislature. In private correspondence, President George Washington gave our nation less than 20 years to exist.
In 1801, Federalist President John Adams chose John Marshall, a man with no prior judicial experience, as Chief Justice of the Supreme Court. In Marbury vs. Madison, a case involving the validity of Adams’s mid-night judicial appointments (after Adams lost the Presidential election to Republican Jefferson but before Jefferson’s swearing in), the issue came before the Supreme Court with the basic question being did the Court have power to rule on the constitutionality of the acts of the President and Legislature? Could the President and/or Legislative branches evade judicial orders? Marshall was crystal clear, “It is the duty of the judicial department to say what the law is under the Constitution; that the Constitution is superior to acts of the Legislature (and Executive); it was therefore within the Court’s power to strike down unconstitutional acts by the Legislature (and Executive), otherwise, it would subvert the foundation of the Constitution.” Marshall’s opinion became established law. Generations of historians “have elected Marshall to the pantheon of judicial greatness, and have anointed his Marbury opinion as the most important in American judicial history.” That decision helped elevate our nation to the greatest civilization as to the rights of mankind that ever existed.