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Marbury V. Madison


Marbury v. Madison, one of the first Supreme Court cases
asserting the power of judicial review, is an effective
argument for this power; however, it lacks direct textual
basis for the decision. Marshall managed to get away with
this deficiency because of the silence on many issues and
the vague wording of the Constitution. During the early
testing period when few precedents existed, there was much
debate about fundamental issues concerning what was
intended by the words of the Constitution and which part of
government should have the final word in defining the
meaning of these words. Marshall used the Marbury case to
establish the Supreme Court's place as the final judge.
Marshall identified three major questions that needed to be
answered before the Court could rule on the Marbury v.
Madison case. The first of these was, "Has the applicant a
right to the commission he demands?" The Constitution
allows that "the Congress may by Law vest the Appointment
of such inferior Officers, as they think proper, in the
President alone, . . . " (Art. II, º 2). The Judiciary Act
of 1793 had given the President the right to appoint
federal judges and justices of the peace; there is no
dispute that such an appointment was within the scope of
the president's powers. Debate arises because the
Constitution is silent on the exact time at which the
appointment is considered complete. The Supreme Court ruled
that "when a commission has been signed by the president,
the appointment is made; and that the commission is
complete, when the seal of the United States has been
affixed to it by the [secretary of state]." This ruling
does not have direct constitutional support, but it is not
an unreasonable decision. The second question which
Marshall addressed was, "If [Marbury] has a right, and that
right has been violated, do the laws of this country afford
him a remedy?" The answer is logically yes although there
are no specific words in the Constitution to support such
an answer. Based on the type of government intended by the
Constitution, the government is expected to protect
individual liberty. As Marshall says, "[The government]
will certainly cease to deserve [to be termed a government
of laws, and not of men] if the laws furnish no remedy for
the violation of a vested right." However, with this
assertion Marshall established the power of the Supreme
Court to review actions of the executive branch - a power
that does not stem directly from the Constitution. The
third and final question which Marshall addressed was
whether Marbury "is entitled to the remedy for which he
applies." Marshall further divides this question into two
parts: the nature of the writ and the power of the Supreme
Court. In examining the nature of the writ, Marshall
solidifies further the Supreme Court authority over members
of the executive branch. Marshall admits that "the officer
to whom [the writ] is to be directed, must be one to whom,
on legal principles, such writ may be directed . . . " and
that the Supreme Court cannot "enquire how the executive,
or executive officers, perform duties in which they have
discretion." Yet Marshall insists that the Supreme Court
can issue a mandamus "[where the head of a department] is
directed by law to do a certain act affecting the absolute
rights of individuals." This assertion does not have
Constitutional basis. The Constitution does not expressly
grant the Supreme Court power over either of the other
branches of government. Finally Marshall gets to the
question based on which he decides the case - the Supreme
Court's jurisdiction over this case. For the first time in
this case, Marshall uses direct constitutional basis to
make his ruling. He argues that, "If it had been intended
to leave it in the discretion of the legislature to
apportion the judicial power between the supreme and
inferior courts according to the will of that body, it
would certainly have been useless to have proceeded further
than to have defined the judicial power . . . The plain
import of the words seems to be, that in one class of cases
its jurisdiction is original and not appellate; in the
other it is appellate, and not original." He bases this
ruling on Art. III º 2, which enumerates the cases in which
the Supreme Court shall have original jurisdiction.
Marshall further maintains that the Constitution is the
supreme law of the land. In this contention as well
Marshall has constitutional basis in Art. VI, which states,
"This constitution, and the Laws of the United States which
shall be made in Pursuance thereof; ... shall be the
supreme Law of the Land." In his typical style, Marshall
follows this constitutionally based statement with one of
the most controversial rulings, which has no constitutional
basis. He asserts, "It is emphatically the province and
duty of the judicial department to say what the law is."
There is nothing in the Constitution that assigns the duty
of review solely to the judicial department. Although his
decision loosely construes and even stretches the meaning
of the Constitution, Marshall's ruling on this case overall
is not detrimental to the well-being of the American
people. The Supreme Court is the only branch of government
that could act to strengthen the national government during
the early history of the Constitution. Clearly, Congress
could not take on the states' rights advocates and the
state legislatures. If an early Congress had passed a law
which a state government objected to, the state legislature
might have simply nullified the law, thus forcing the
national government into a precarious situation. Congress
would have to risk causing the state to leave the Union to
force them to comply with the new law. Furthermore, the
president also was not in a position to allow the federal
government more leeway in interpreting their powers. He
does not make any laws of his own and has no power to
settle any questions of the states. Clearly, the Supreme
Court was the branch that could most easily facilitate the
strengthening of the national government into an effective
and unified nation rather than thirteen independent
countries as the states had seemed under the Articles of
Confederation. Critics will protest that the people do not
elect the Supreme Court Justices and therefore the Supreme
Court should not have the power of judicial review. As
McCloskey points out, "No institution in a democratic
society could become and remain potent unless it could
count on a solid block of public opinion that would rally
to it's side in a pinch." Clearly, the Supreme Court is
ultimately responsible to the will of the people. By
maintaining independence from politics, the Justices avoid
the major problems of political parties and party
platforms. Furthermore, the Supreme Court's small size
allows the Constitution to speak with a unified voice
throughout the country 



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