Term Papers on Marbury V. Madison

Term Paper Title	Marbury V. Madison
# of Words	1083
# of Pages (250 words per page double spaced)	4.33

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 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...

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