Marbury V. Madison Essay, Research Paper

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 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 § 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.