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Marbury v. Madison

The impact of judicial review has been profound and often detrimental to the rule of law in America.  Judicial review is the power of the courts to void federal, state, and local laws and ordinances that they have determined to be incompatible with the U.S. Constitution.  Certainly, national and state legislatures have passed laws that have been unconstitutional.  Determining the constitutionality of a law has frequently been a tortured process, and it would be naive to imagine that courts generally, and the U.S. Supreme Court specifically, have responsibly exercised the power of judicial review.  The nomenclature of strict construction, loose construction, interpretivism, noninterpretivism, originalism, nonoriginalism, etc., makes it clear that there are a variety of ways to construe the Constitution.  Justices and judges not only must decide upon a jurisprudence but must contend with internal and external political circumstances, such as the ideological divisions within a court that is dealing with a particular case; ideological divisions between different courts (e.g., Justice Brown’s precedent regarding separate-but-equal, established in Plessy v. Ferguson (1896), was a serious problem for Chief Justice Warren in Brown v. Board of Education (1954)); and the way in which their decisions and actions will be received by other institutions of the government,...

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