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... [continues]

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