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.