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, § 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 cea...
... middle of paper ...
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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