February 24 is not merely an anniversary. It is a reminder that constitutional structure endures only if it is defended.
On February 24, 1803, the Supreme Court decided Marbury v. Madison. In doing so, Chief Justice John Marshall wrote words that still define the American constitutional order: It is “emphatically the province and duty of the judicial department to say what the law is.”
That line, which drew on judicial thinking already evident in the early republic, did not expand judicial power. It preserved constitutional government.
Marshall understood and wanted to make clear that a written Constitution is not self-enforcing. If the political branches could define the scope of their own authority, structural limits would become suggestions. Judicial review was not conceived as supremacy over the other branches, but as a necessary check — a way to ensure that power remains divided as the Framers intended.
Two hundred and twenty-three years later, that duty remains unchanged.
On Friday, the Supreme Court reaffirmed it in the tariff litigation, holding that the president lacked statutory authority to impose sweeping tariffs under the emergency law he invoked. The question before the Court was not whether tariffs are wise or foolish. It was whether Congress authorized them.
The Court answered no.
For the small businesses represented by the Liberty Justice Center (and many others), the case was about economic survival. Sudden and expansive tariffs had reshaped supply chains and destabilized companies that employ American workers and invest in American communities. But the constitutional question was larger than trade policy.
Article I vests in Congress — and Congress alone — the power to regulate commerce with foreign nations and to lay and collect taxes, duties, and imposts. That allocation was not accidental or stylistic. The Framers deliberately withheld the power of the purse and the power over trade from the executive because they understood that control over revenue and economic policy is control over the nation itself. The president executes the laws Congress enacts; he does not inherit a freestanding authority to redesign the American economy by invoking elastic readings of emergency statutes. When statutory text runs out, executive power runs out with it. That is not a political judgment. It is a structural command embedded in the Constitution’s original design.
When the administration argued that broad emergency powers permitted unilateral restructuring of trade policy, the Court returned to first principles. It examined the statute. It interpreted its limits. And it enforced the boundary.
That is not activism. It is constitutional discipline.
The Liberty Justice Center has seen this principle at work before. In Janus v. AFSCME, the Supreme Court held that public-sector employees cannot be compelled to subsidize union speech. National Review rightly recognized Janus as a landmark for the First Amendment and individual liberty. But it was also, in a deeper sense, a separation-of-powers case. The Court refused to allow longstanding practice or legislative convenience to override constitutional protections.
In both Janus and the tariff litigation, the Court confronted arguments rooted in pragmatism and expediency. In both, it returned to text and structure.
That through-line runs straight back to February 24, 1803.
Judicial review is sometimes described as counter-majoritarian. But the Constitution itself is counter-majoritarian in critical respects. It divides authority. It slows political momentum. It prevents the concentration of power in moments of urgency. The Framers did not design a system for efficiency; they designed one for liberty.
Judicial review is the mechanism that preserves that design.
Without it, constitutional limits would be advisory. Without judicial independence, they would be illusory.
It is worth recalling the context of Marbury. The early Republic was deeply divided. The Court risked political backlash by asserting its authority to invalidate acts inconsistent with the Constitution. Marshall crafted an opinion that strengthened the Court’s institutional role while reaffirming the limits of power. He did not claim dominance; he claimed duty.
That distinction remains vital today.
In the tariff case, the Court did not opine on trade theory. It did not weigh geopolitical strategy. It did not substitute its policy judgment for that of elected officials. It asked a simple but decisive question: Where did the power come from?
When the answer was unclear or absent, the claimed authority could not stand.
That reasoning is neither conservative nor progressive. It is constitutional.
Critics often warn that strong judicial review risks empowering courts at the expense of democracy. But the alternative is not democratic flourishing; it is the accumulation of executive power. If emergency statutes can be stretched to justify sweeping economic transformation without clear congressional authorization, then Article I becomes an afterthought.
The Founders anticipated ambition. They structured government to counteract it. Congress writes the laws. The president executes them. The courts interpret them. Each branch checks the others not to frustrate governance, but to prevent consolidation.
The tariff decision is not a triumph of one policy over another. It is a reaffirmation that constitutional lines still matter — that even in areas touching foreign commerce and national strategy, authority must be traceable to the people’s representatives.
On this anniversary of Marbury v. Madison, we should resist the temptation to treat judicial review as historical ornament. It is the quiet safeguard that ensures no administration — of any party — may define the outer limits of its own power.
From Marbury to Janus to the recent tariff ruling, the principle has remained constant: Ours is a government of laws, not of men. And it remains the province and duty of the judiciary to say what those laws are — even, and especially, when doing so restrains the political branches.
That duty is not abstract. It is the foundation upon which constitutional litigation rests. Courts willing to enforce limits make self-government possible.
February 24 is not merely an anniversary. It is a reminder that constitutional structure endures only if it is defended — in 1803, in 2018, and today.