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- Constitutional Law
- 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.
-