Term Paper on "Judicial Review No Doubt Exists"

Term Paper 10 pages (3458 words) Sources: 10

[EXCERPT] . . . .

Judicial Review

No doubt exists about the significance given to the complete and thorough understanding of the Judicial Review. It had been treated by many originalists as one of the most decisive, if not the key factor in the Marbury vs. Madison case. Of course, over the years, reviews, analysis and answers given by the various jurists and researchers have varied in a wide spectrum. Some scholars opinionated that in that particular situation the judicial review was an added angle and had no part in the initial case and its understanding at all, while others completely disagreed saying that, the notion of the judicial review had been extensive enough to give the courts leverage and authority to overthrow laws and regulation on the basis of the standard regulations. The originalist point-of-view had attained immense support from The Supreme Court that asserted this particular point-of-view to be "the ultimate expositor of the constitutional text (Treanor, 2005)," and hence as a result had been able to shut down and close a chain of parliamentary regulations on the basis of the originalist viewpoint. The general scholar's viewpoint had been very opposing to this particular chain of thought and sided with the notion that, the judicial review had been very seldom employed even though it had been a regular part of the overall comprehension and procedure (Treanor, 2005). With such contrasting views about the Marbury vs. Madison case, it is important that we thoroughly study Judicial Review in the light of the events, which unfolded before and after the Marbury vs. Madison case. Therefore, the aim of this paper is to analyze the chain of events, which lead to the Marbury vs. Madison case and the impact of this case on the issue of Judicial Review.

The Review of Marbury v. Madison

Kramer (2004) writes that this particular lawsuit emerged as a result of tension and strife between the Federalists, headed mainly by Alexander Hamilton and John Adams, the successor for the Federalist presidency post after Washington, and the Republican Party, which was administered namely by Thomas Jefferson, Aaron Burr along with James Madison. The arguments between both these political parties had mainly been significant for the reformation of the democratic outlook within the youth of the country (Kramer, 2004). Furthermore, Clinton (1994) extends the analysis of Kramer (2004) and asserts that according to the structure of the 1787 Constitution, political parties had no place in the setup of a government. In fact, none of the political parties in that era had been recognized through division or separation which had been hazardous for a democratic setup in the long run. A constitution had been structured without the identification of the existence of the political parties with the theory that their non-identification would somehow hinder not only their expansion but also authority. However, that had just been a false belief, as after a few years when the constitution had been re-structured, the political parties immediately reappeared with competitions; and struggle for authority between them became more antagonistic and sour. The situation got further intensified in the aftermath of the 1796 elections. While, John Adams, the representative of the Federalist Party, had been elected President at the Electoral College; the committee made Thomas Jefferson, the opposing runner up for the President's post, the Vice President under the assumption that the winner had won on a huge advantage in the ballots. Jefferson, however, defeated Adams in the 1800 election and the Republicans ultimately took over the control of the Presidency. The election had been contested in the House of Representatives and had mainly been conducted because Jefferson and his running partner Aaron Burr had attained equal votes (Clinton, 1994).

Clinton (1989) reveals that this newborn concept of democracy had been on shaky grounds because of the 1800 elections since there had been clear uncertainty of the transfer of power between the opposing parties. In addition, there existed evident mistrust between the two parties and the federalists strenuously believed that the future of the Untied States would be jeopardized under the Republican rule; and therefore, they had been attempting to avoid such a situation by opposing and causing problems for any Republican take over (Clinton, 1989).

One of the loopholes, Clinton (1989) writes, along with the complete un-identification of political parties, had been that the new government could not appoint a fresh Congress till almost half a year after it took Office because of the haphazard way in which the constitution's timetable had been set. Hence, the Congress had been in control of the Federalists till the 3rd on March 1801, even though they had not been the ruling party. The federalist setup of the Congress had been full of activity till that time by skillfully establishing new offices where the federalists could be a part of the government setup and also by consciously appointing as many of their alliances as they could in the parliament through the passing of the Judiciary Act of 1801 on the 13th of February to retain some form of authority over the actions and laws passed during the Republican rule. John Marshall, the Federalist Secretary of State, had been elected as the Chief Justice, although he had been sustained as Secretary of State till the end of Jefferson's appointment to the office. Jefferson, hence, authorized William Marbury's appointment in the State of Columbia as a Justice of the Peace (Clinton, 1989).

Dewey (1970), however, down plays the significance of these developments. According to him, it had neither been this assignment of Marbury nor the Justice of the Peace department that had been the main power-struggle between the two parties. He believes that the Federalist party while in power in the Congress during the Republican Rule crucially divided the power of the Supreme and District courts into subsidiary Circuit Courts in accordance with the Judiciary Act of 1801. These circuit courts, as well as, judges, on the front had been established to relieve the Supreme Court of the burden of circuit cases all over the country. However, the Republican ruling parties read more into that, and concluded this particular act as yet another way for the federalists to attain some form of authority or control over the American Judiciary System (Dewey, 1970).

Dewey (1970) writes that this "Midnight Judges" (judges in the Circuit Courts) Act was not well received by the Republican Ruling Party who deemed the appointment and establishment of the Circuit Courts and Judges extremely unjust and also that their establishment had been authorized during a lame duck period when the Republicans could not contribute in the Congress and its activities (Dewey, 1970). Nelson (2000) agrees with Dewey (1970) and writes the Republicans believed that the approval and establishment of the Circuit Courts was in complete and evident rebelliousness of the Republican Authority and as soon as they took over control, under Jefferson's rule, they hired James Madison as the new Republican Secretary of State. Madison, declined Marbury's appointment in the Justice of the Peace Department but could not do anything about the Circuit Courts and Judges as they already held authorities. Hence, the Congress controlled by the Republican Ruling party took up a whole new approach. They eliminated the position of the Circuit Courts and Judges by passing an Act in 102 that revoked the 1801. This Repeal Act had been approved on the 8th of March, 1802; seven weeks afterwards, on the 29th of April, the Republican Congress approved and attested the Judiciary Act of 1802 that instilled some news laws and brought back quite a few ones, like the re-appointment of the Supreme Court Justices as the Circuit Judges (Nelson, 2000).

The authorities under Jefferson, Nelson (2000) goes on to say, realized that this passing of the Repeal Act might lead the Federalist-controlled Congress to revolt and deem the Act of 1802 as void and unlawful. To prevent that chain of events, the Republican Ruling party cancelled the Supreme Court's season/assembly of 1802 till the February of 1803. This had been the main reason why the lawsuit of Marbury v. Madison had been delayed till the year 1803 instead of being decided and dismissed in 1802. The logic behind this move had simply been to prevent the Federalist Justices to pass a Law or Act against the liking of the Republican Ruling Party. The Republican Ruling Party could very easily remove them from Congress through any legal means (e.g. impeachment of the Federalist Justice Samuel Chase) upon non-compliance with their laws. Chase, of course, soon after had been cleared of all charges, but had to wait till 1803 for that decision, since the Marbury vs. Madison case had not been decided. The threat had been very factual and tangible by the time Marshall and his contemporaries heard about the lawsuit against them (Nelson, 2000).

Tushnet (2005) believes that while the Marbury lawsuit had been in motion, the Federalist-controlled Congress had been confronting the Jefferson authority by revoking the Judiciary Act through the Stuart v. Laird lawsuit. This case… READ MORE

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