On this anniversary of Marbury v. Madison, we should seek to return to John Marshall’s wisdom. Judicial review is a legitimate and needed function, one grounded in the supremacy of the Constitution. But it is not a surrender by the other branches or the public to judicial fiat. Marshall’s opinion is a call for the judicial branch to act as a partner in the greater task of constitutional self-government. In the end, it is a call for all of us, judges included, to say what the law is.

“It is emphatically the province and duty of the judicial department to say what the law is.” So wrote Marshall, chief justice of the Supreme Court, in the 1803 case of Marbury v. Madison. 

This Feb. 24 marks the 220th anniversary of that decision, possibly the most consequential Supreme Court case in American history. In it, the court found the footing that led to its status as a co-equal branch of government. Misinterpretations of Marbury’s intent, however, have vested the Supreme Court with far more power than the Constitution requires. Marking the line between legitimate and illegitimate understandings of Marbury continues to be an important task. The court has long relied on it to support its practice of judicial review, an action in which it declares a law either constitutional or not. Most of our best-known Supreme Court cases — Dred Scott v. Sandford, Brown v. Board, Roe v. Wade — involved the court making such declarations about national or state laws. In fact, so important has this role become for the court that many think it the justices’ only job.

While some trace the origins of judicial review to this case, its beginnings start earlier. Alexander Hamilton, for example, argued for the practice in Federalist 78 in 1788. 

But the concept of judicial review really originates from the Constitution itself, specifically insofar as it lays out the judicial branch’s function within the separation of powers. Essential to the Constitution’s prescribed judicial power is the courts’ ability to decide disputes according to the standard of the law. However, what happens when two laws conflict and the judge can only apply one of them to determine who wins the case before him? Consider further if one of those conflicting laws is a provision found in the Constitution, the other a statute passed by Congress or a state legislature. If we affirm the Constitution’s sixth article, which says the Constitution is the “supreme law of the land,” then we must apply the Constitution, not the other conflicting statute. This is the basic ground of judicial review.

It is for this reason that judicial review is not only legitimate, but vital. However, the court, over the years, has taken this power too far. Too many justices have come to view their interpretation as equal to if not the equivalent of the Constitution itself. And too many legislators, executives, and even regular people have gone along with this mistake, allowing a judicial supremacy that, in practice, is divorced from the Constitution’s principles. The court was never meant to exercise a legislative power in addition to its own, and its habit of doing so is a violation of our Constitution’s finely crafted divisions of power, and thereby a threat both to a government effective enough to protect us and limited enough to not itself oppress.

The Supreme Court does have exclusive, definitive power to say which litigant in a case before it wins. No other branch or body can gainsay that determination. But that does not mean the court’s interpretation of the Constitution in reaching that decision is final and binding for all other branches. Congressmen, presidents, and even state officials are bound, in most cases by oath, to uphold the Constitution. Thus, they too must engage in constitutional interpretation in carrying out their roles within our political system.

The Supreme Court may have an edge in this interpretation battle, since it is often the last branch to speak (a lawsuit usually coming after a law is passed and acted on by the executive). However, being the last word chronologically is not the same as being the last word in authority. The other branches and political bodies certainly have the power, even the obligation, to continue the constitutional debate in other forums, including in other cases.

Adam Carrington is an associate professor of politics at Hillsdale College.