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Power of Judicial Review


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, § 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 otherbranches 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 § 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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