Power of Judicial Review-

A detailed Summary of 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, S 2). The Judiciary

Act of 1793 had given the President the right to appoint federal

judges and justices of the peace; there is no

of the writ, Marshall solidifies further the Supreme Court authority

whether Marbury "is entitled to the remedy for which he applies."

liberty. As Marshall says, "[The government] will certainly cease to

settle any questions of the states. Clearly, the Supreme Court was the

officers, perform duties in which they have discretion." Yet Marshall

Marshall further divides this question into two parts: the nature of

The second question which Marshall addressed was, "If

absolute rights of individuals." This assertion does not have

of this country afford him a remedy?" The answer is logically yes

Court Justices and therefore the Supreme Court should not have the

no constitutional basis. He asserts, "It is emphatically the province

Approximate Word count = 1197
Approximate Pages = 5 (250 words per page double spaced)

Category: Miscellaneous

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