Power Of Judicial Review- Essay, Research Paper

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.