AHC/WI: Supreme Court Does Not Establish Judicial Review

What it says on the can. What if the doctrine of judicial review had never been established by the Supreme Court of the United States. The POD can be whatever you'd like. Personally, I don't think butterflying Marbury v. Madison would be sufficient. Judicial review would still have been established at a later date through another case. Certainly it was an established concept that was discussed favorably at the Constitutional Convention, was treated as an assumed power of the federal judiciary by the state ratifying conventions, and was already practiced by state courts with respect to their state constitutions. As such, I think a POD will have to be relatively early in the US' history. Before the Constitution probably. That said, please speculate on what the affects of no judicial review at the federal level would be.
 
Apparently the mere thought of the Supreme Court without judicial review is simply too terrifying to behold to even warrant consideration.
 
One possibility would be for a President to defy a SCOTUS ruling on a major policy issue and get away with it.

Dred Scott was the first instance of judicial review on a federal issue after Marbury vs Madison. If M v M didn't happen (say, if Adams refuses to make the Midnight Appointments), and if due to butterflies TTL's equivalent of the Dred Scott decision happens when a hard-core Free Soiler or Popular Sovereignty supporter is President, I could see the President taking a stance that SCOTUS is wrong and he will follow his own conscience in deciding which laws he will execute.

Another possibility would be to set firm precedents in favor of non-judicial Constitutional review. A few possibilities:

  1. Most early Presidents mainly used their vetoes to reject bills they believed were unconstitutional. One of Washington's two vetoes was of this type, as were at least three of Madison's five vetoes and Monroe's only veto. Adams, Jefferson, and JQA didn't veto anything at all. Have this tradition stick somehow rather than being broken by Jackson. It would help if Adams were to break with his party and veto the Alien and Sedition Acts, and subsequently be reelected (an additional precedent in favor of Presidential review, no midnight judges, and a softening of the then-emerging partisan nature of the Presidency).
  2. Have state nullification get more traction early on. Perhaps have the Kentucky and Virginia Resolutions actually impose penalties against officials enforcing the Alien and Sedition Acts rather than being framed mainly as symbolic acts of protest. This would provoke a major crisis, and if the federal government were to be the side that winds up backing down, then that would establish a pretty strong precedent in favor of nullification.
  3. The OTL K&V Resolutions as passed expressed an opinion that the A&S Acts were unconstitutional and called upon other states to join in protesting them. Other states balked largely because of confusion over early drafts that explicitly nullified the acts, which they didn't want to be seen as supporting for a mix of practical and legal reasons. If the resolutions had instead requested an Article V convention over the issue, the legal issues would have been much clearer, and the practical concern of a state-by-state patchwork of which federal laws were enforceable would not have been an issue. A successful convention might wind up proposing an amendment creating a convention-based process for constitutional review of federal laws.
 
One possibility would be for a President to defy a SCOTUS ruling on a major policy issue and get away with it.

Didn't Andrew Jackson already do this with his "John Marshall has made his decision, now let him enforce it" concerning the Indian Removal Act, even with OTL judicial review?
 
Didn't Andrew Jackson already do this with his "John Marshall has made his decision, now let him enforce it" concerning the Indian Removal Act, even with OTL judicial review?

I thought he had, but when I looked it up to confirm, I found that the story grew quite a bit in the telling. The ruling was against the State of Georgia (overturning a criminal conviction for lack of juristiction), not Jackson or the federal government, and Jackson's (significantly less punchy) comments were more in the nature of kibbitzing than defiance.

http://en.wikipedia.org/wiki/Worcester_v._Georgia
 
Actually, well before *Madison v. Marbury* the Supreme Court had implicitly claimed the power of judicial review in 1796 in *Hylton v. United States* dealing with the constitutionality of a tax on carriages. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=3&invol=171 True, it upheld the tax, but still it clearly claimed the power to decide whether or not it was constitutional. (By the way, Marshall's assertion of the power of judicial review was *not* the controversial feature of *Madison v. Marbury.* Rather, what the Republicans resented was that Marshall had proclaimed Jefferson's actions illegal in what Jefferson regarded as a mere extended *obiter dictum*--since Marshall after all concluded that the Court had no jurisdiction.)
 
Actually, the Supreme Court and the country could have gotten along without judicial review *of federal statutes* for quite a while. Before the ACW, the US Supreme Court only found federal statutes unconstitutional *twice*--in *Marbury* and in *Dred Scott.* In *Dred Scott* moreover, they declared unconstitutional a law that had already been repealed. Even in *Marbury* it was not really necessary to declare the relevant section of the Judiciary Act unconstitutional. The Court could for example have interpreted the section of the Judiciary Act giving it power to issues writs of mandamus as only applicable to cases where the Court already had jurisdiction. It is overwhelmingly likely that the Court would decide it had the power to decide federal statutes were unconstitutional even if it in fact found every one to be constitutional. (As I have noted, the Court had already implicitly done so before *Marbury*.) Still, the point is that it had hardly any occasion to exercise that power.

By contrast, it would have been much more dangerous to go without Supreme Court judicial review of *state* laws. As Holmes famously said: "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States." http://books.google.com/books?id=HamEkfqdMcEC&pg=PA147
 
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