Term Paper on "Judicial Review: The Legacy of Marbury v"

Term Paper 4 pages (1436 words) Sources: 7 Style: MLA

[EXCERPT] . . . .

Judicial Review: The Legacy of Marbury v. Madison

The supreme law of the land is the U.S. Constitution, and the Supreme Court has become the final arbiter of what the Constitution means for the federal government and several states. The process by which the Court renders judgment in this regard has come to be known as judicial review, but this process is entirely extra-constitutional and is based in large part on the precedential findings made in Marbury v. Madison in 1803. This paper examine the origins and evolution of judicial review through an analysis of controlling legislation, and a discussion of what happens when a law is struck down as unconstitutional. An assessment of what alternatives are available to the executive and legislative branches once the judicial branch has exercised judicial review is followed by a summary of the research in the conclusion.

Review and Discussion

The Legislative Process. This is the process by which laws are enacted in the U.S. Although the legislative and executive branches of the federal government enjoy the constitutional right to propose and enact legislation for a wide variety of purposes, such legislation must "pass constitutional muster" in order for it to be effective and the Supreme Court has assumed this responsibility. In this regard, Treaner (2005) reports that, "The Supreme Court has claimed originalist sanction for the view that it is 'the ultimate expositor of the constitutional text,' and in the past decade has struck down a string of congressional statutes on originalist grounds" (455).

Article V. The process required to amend the Constitution set forth in Article V makes it extremely difficult to change the Constitution and there is no specific mention of judicial review or the Supreme Court at all in the text. The salient points of Article V regard the various ways the legislative and executive branches of the federal and state governments can go about seeking amendments to the Constitution and what is required to ratify them. According to Arthur (1995), "The required two-thirds and three-fourths majorities help assure that self-incapacitation is effective. Although constitutional amendment is possible, most amendments have involved constitutive rules, extending the vote to new groups, revising procedures for electing officials, or providing for the transfer of power during emergencies" (22). Instances of substantive issues involving fundamental constitutional principles constraining the majority are debated intensely and thoroughly and then acted on by American society at large are, in fact, relatively rare (Arthur 22).

Judicial Review. According to Black's Law Dictionary (1990), the term judicial review refers to the "power of courts to review decisions of another department or level of government (Marbury v. Madison, 5 U.S. 137, 177)" (849). Although Alexander Hamilton described the basic principles of judicial review in an article in the Federalist Papers, there is absolutely no mention of judicial review in the U.S. Constitution. The origins of the concept of judicial review are discussed further below.

Judiciary Act of 1789. In her book, Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, Marcus (1992) reports that today, "The judicial system, created by the Judiciary Act of 1789, not only exists but thrives" (3). Despite the importance of the Act in establishing the form of the American judicial system, the Act failed to provide for a number of eventualities that would be settled at the time by the findings reach in Marbury v. Madison discussed further below.

Marbury v. Madison (1803). In reality, one of the more interesting aspects of Chief Justice Marshall's decision in this case was his ability to "think outside the box" and make a decision based on his perceptions of the Supreme Court's role in formulating the law of the land rather than merely deciding the issues involved in the case involving the delivery of a commission simply appointing a justice of the peace. The Chief Justice's reasoning in not simply issuing a writ of mandamus and supporting the Supreme Court's authority to do so or deciding otherwise, though, may not have been as original as many might think. According to Treanor, "The prevalence of pre-Marbury exercises of judicial review helps explain why the assertion of judicial review in Marbury provoked little controversy, a fact that previous scholars have often found surprising" (455). This author also suggests that Chief Justice Marshall's rationale in deciding… READ MORE

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