must therefore look
into some portions of the Constitution, and if they can open it at all,
what part of it are they forbidden to read or obey? In conclusion the
Chief Justice declared that the Constitution is mentioned first in the
supremacy clause and that "the particular phraseology of the
Constitution * * * confirms and strengthens the principle, supposed to
be essential to all written constitutions, that a law repugnant to the
Constitution is void; and that courts, as well as other departments, [of
government] are bound by that instrument."[267]

Importance of Marbury _v._ Madison

The decision in Marbury _v._ Madison has never been disturbed, although
it has often been criticized. Nor was its contemporary effect confined
to the national field. From that time on judicial review by State courts
of local legislation in relation to the local constitutions made rapid
progress and was securely established in all States by 1850 under the
influence not only of Marbury _v._ Madison, but also of early principles
of judicial review established in the circuit courts of the United
States.[268]

LIMITS TO THE EXERCISE OF JUDICIAL REVIEW

Because judicial review is an outgrowth of the fiction that courts only
declare what the law is in specific cases,[269] and are without will or
discretion,[270] its exercise is surrounded by the inherent limitations
of the judicial process and notably the necessity of a case or
controversy between adverse litigants with a standing in court to
present the issue of unconstitutionality in which they are directly
interested. The requisites to a case or controversy have been treated
more extensively above, but it may be noted that the Supreme Court has
repeatedly emphasized the necessity of "an honest and actual
antagonistic assertion of rights by one individual against
another,"[271] and its lack of power to supervise legislative functions
in friendly proceedings, moot cases, or cases which present abstract
issues.[272]

The Doctrine of "Strict Necessity"

But even when a case involving a constitutional issue is presented, the
Court has repeatedly stated that it will decide constitutional questions
only if strict necessity requires it to do so. Hence constitutional
issues will not be decided in broader terms than are required by the
precise state of facts to which the ruling is to be applied; nor if the
record presents some other ground upon which to decide the case; nor at
the instan