Power of Judicial Review
Power of Judicial ReviewMarbury 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...
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