Constitutional LawMarbury v. MadisonMarbury v. Madison, one of the first Supreme Court cases asserting thepower of judicial review, is an effective argument for this power;however, it lacks direct textual basis for the decision.
Marshallmanaged to get away with this deficiency because of the silence on manyissues and the vague wording of the Constitution. During the earlytesting period when few precedents existed, there was much debate aboutfundamental issues concerning what was intended by the words of theConstitution and which part of government should have the final word indefining the meaning of these words. Marshall used the Marbury case toestablish the Supreme Court’s place as the final judge. Marshall identified three major questions that needed to be answeredbefore the Court could rule on the Marbury v. Madison case.
The first ofthese was, “Has the applicant a right to the commission he demands?” TheConstitution allows that “the Congress may by Law vest the Appointmentof such inferior Officers, as they think proper, in the Presidentalone, . . . ” (Art.
II, ? 2). The Judiciary Act of 1793 had given thePresident the right to appoint federal judges and justices of thepeace; there is no dispute that such an appointment was within the scopeof the president’s powers. Debate arises because the Constitution issilent on the exact time at which the appointment is consideredcomplete. The Supreme Court ruled that “when a commission has beensigned by the president, the appointment is made; and that thecommission is complete, when the seal of the United States has beenaffixed to it by the [secretary of state]. ” This ruling does not havedirect constitutional support, but it is not an unreasonable decision. The second question which Marshall addressed was, “If [Marbury] has aright, and that right has been violated, do the laws of this countryafford him a remedy?” The answer is logically yes although there are nospecific words in the Constitution to support such an answer.
Based onthe type of government intended by the Constitution, the government isexpected to protect individual liberty. As Marshall says, “[Thegovernment] will certainly cease to deserve [to be termed a governmentof laws, and not of men] if the laws furnish no remedy for the violationof a vested right. ” However, with this assertion Marshall establishedthe 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 whetherMarbury “is entitled to the remedy for which he applies. ” Marshallfurther divides this question into two parts: the nature of the writ andthe power of the Supreme Court. In examining the nature of the writ,Marshall solidifies further the Supreme Court authority over members ofthe executive branch.
Marshall admits that “the officer to whom [thewrit] is to be directed, must be one to whom, on legal principles, suchwrit may be directed . . . ” and that the Supreme Court cannot “enquirehow the executive, or executive officers, perform duties in which theyhave discretion.
” Yet Marshall insists that the Supreme Court can issuea mandamus “[where the head of a department] is directed by law to do acertain act affecting the absolute rights of individuals. ” Thisassertion does not have Constitutional basis. The Constitution does notexpressly grant the Supreme Court power over either of the otherbranches of government. Finally Marshall gets to the question based on which he decides thecase – the Supreme Court’s jurisdiction over this case. For the firsttime in this case, Marshall uses direct constitutional basis to make hisruling.
He argues that, “If it had been intended to leave it in the discretion of thelegislature to apportion the judicial power between the supreme andinferior courts according to the will of that body, it would certainlyhave been useless to have proceeded further than to have defined thejudicial power . . . The plain import of the words seems to be, thatin one class of cases its jurisdiction is original and not appellate; inthe other it is appellate, and not original.
” He bases this ruling on Art. III ? 2, which enumerates the cases inwhich the Supreme Court shall have original jurisdiction. Marshallfurther 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 Stateswhich shall be made in Pursuance thereof; . . . shall be the supreme Lawof the Land. ” In his typical style, Marshall follows this constitutionally basedstatement with one of the most controversial rulings, which has noconstitutional basis. He asserts, “It is emphatically the province andduty of the judicial department to say what the law is.
” There isnothing in the Constitution that assigns the duty of review solely tothe judicial department. Although his decision loosely construes and even stretches the meaningof the Constitution, Marshall’s ruling on this case overall is notdetrimental to the well-being of the American people. The Supreme Courtis the only branch of government that could act to strengthen thenational government during the early history of the Constitution. Clearly, Congress could not take on the states’ rights advocates and thestate legislatures.
If an early Congress had passed a law which a stategovernment objected to, the state legislature might have simplynullified the law, thus forcing the national government into aprecarious situation. Congress would have to risk causing the state toleave the Union to force them to comply with the new law. Furthermore,the president also was not in a position to allow the federal governmentmore leeway in interpreting their powers. He does not make any laws ofhis own and has no power to settle any questions of the states. Clearly,the Supreme Court was the branch that could most easily facilitate thestrengthening of the national government into an effective and unifiednation rather than thirteen independent countries as the states hadseemed under the Articles of Confederation.
Critics will protest that the people do not elect the Supreme CourtJustices and therefore the Supreme Court should not have the power ofjudicial review. As McCloskey points out, “No institution in ademocratic society could become and remain potent unless it could counton a solid block of public opinion that would rally to it’s side in apinch. ” Clearly, the Supreme Court is ultimately responsible to the willof the people. By maintaining independence from politics, the Justicesavoid the major problems of political parties and party platforms. Furthermore, the Supreme Court’s small size allows the Constitution tospeak with a unified voice throughout the country.
