constitutional law Essay -- essays research papers

establishmental LawMarbury v. Madison     Marbury v. Madison, one of the first Supreme Court cases asserting the power of judicial review, is an effective purpose for this power however, it lacks direct textual basis for the decision. Marshallmanaged to get away with this deficiency because of the silence on manyissues and the vague wording of the constitution. During the early testing period when few precedents existed, there was much debate aboutfundamental issues concerning what was intended by the words of theConstitution and which part of government should have the net word indefining the meaning of these words. Marshall used the Marbury case toestablish the Supreme Courts place as the final judge.          Marshall identified trio major oppugns 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 devoted thePresident the right to appoint federal judges and justices of thepeace there is no dispute that such an appointment was within the scopeof the presidents powers. Debate arises because the Constitution issilent on the exact time at which the appointment is consideredcomplete. The Supreme Court ruled that "when a commission has beensigned by the president, the appointment is make and that thecommission is complete, when the seal of the United States has beenaffixed to it by the secretary of state." This ruling does not havedirect 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 countryafford him a remedy?" The answer is logically yes although there are no proper(postnominal) words in the Constitution to support such an answer. Based onthe type of government intended by the Constitution, the government isexpected to protect various(prenominal) liberty. As Marshall says, "Thegovernment will certainly cea... ...urthermore,the president also was not in a position to allow the federal governmentmore permissiveness in interpreting their powers. He does not make any laws ofhis own and has no power to settle any questions of the states. Clearly,the Supreme Court was the branch that could close to easily facilitate thestrengthening of the national government into an effective and unifiednation rather than thirteen independent countries as the states hadseemed under the Articles of Confederation.     Critics will aver that the people do not elect the Supreme CourtJustices and therefore the Supreme Court should not h ave the power ofjudicial review. As McCloskey points out, "No institution in ademocratic society could become and remain potent unless it could counton a solid block of public discernment that would rally to its side in apinch." Clearly, the Supreme Court is ultimately responsible to the willof the people. By maintaining independence from politics, the Justicesavoid the major problems of political parties and ships company platforms.Furthermore, the Supreme Courts small size allows the Constitution tospeak with a unified voice throughout the country.