Q: When the Supreme Court adopted judicial review in Marbury vs Madison how was this not a legal violation of contract law?
The Constitution is seen as both the "highest law of the land" as well as a contract between the federal government, and the people through the ratifying states. I feel that the fact that the Constitution and its amendment are/were not valid until state ratification supports the view that it is indeed a contract. There is no evidence that the ratifiers understood Article III to authorize the courts the power of judicial review. So, the arbitrary decision to assume this power should be view as any other unilateral change to a contract. Additionally, this would also make the judicial doctrine of non-textual originalism (attempting to infer framers' intent) equally void unless it was also the understanding of the signatories (ratifiers).
A: The Constitution is generally not interpreted as a contract under contract law; instead, it's viewed as a foundational legal document that establishes the framework of government. The principle of judicial review, established in Marbury vs. Madison, arises from the Court's interpretation of its role under Article III of the Constitution. While the concept of judicial review was not explicitly stated in the Constitution, its adoption has been justified as an implied power necessary for the judiciary to fulfill its constitutional role.
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