Judicial Review No Doubt Exists Term Paper

Length: 10 pages Sources: 10 Subject: Government Type: Term Paper Paper: #38413153 Related Topics: Ap, Ovid, Alexander Hamilton, Constitutional
Excerpt from Term Paper :

Tushnet (2005) defends his point-of-view by writing that the advocates of the Stuart lawsuit placed the argument that Justices of the Supreme Court, even though, had the authority to be Supreme Court Justices, but they could not be Circuit Court Judges if the position of Circuit Court Judges already taken up by others had been eradicated. Furthermore, they stated that the eradication of the Circuit Judges had been, in fact, illegal and undemocratic in accordance to Article III of the Constitution that stated that once authority had been assigned to a body, it had an enduring or life term; and giving Congress, the authority, to eliminate or eradicate the Circuit Courts had been against the judicial sovereignty promised. Another argument had been that the Congress could not and should not add to the responsibilities already handled by the Supreme Court Justices/Authorities mainly because the added responsibilities could burden them unnecessarily (e.g. As Circuit Court Justices in nisi prius courts) and divert the Supreme Court to pay attention to what their main and chief duties are as a Constitutional Judiciary Structure/Arbitrator (Tushnet, 2005).

Tushnet (2005) writes that problems intensified when all of these arguments had been ignored and discarded by the Chief of Justice, John Marshall, who had been appointed as the Circuit Court Judge in the lawsuit, and refused to appear in the appeal of the lawsuit in the Supreme Court which was an anomaly by general standards. This action when continued in the Marbury vs. Madison lawsuit had been really odd, keeping in mind, that it had been Marshall's disappointment as the Secretary of State that led to the Marbury lawsuit in the first place. Hence, the decision of Marshall to refuse to appear in the Stuart v. Laird appeal at Supreme Court after passing a decision on the case is one of the rarest and the chief examples when the Supreme Court had to pass judgment that the Chief of Justice, Marshall, had not himself passed or approved and instead Justice Paterson had to take up that particular role (Tushnet, 2005).

According to Dorf (2004), Justice Paterson took up a balanced approach on the whole case by not directly deciding that the eradication of the Circuit Court Judges along with the Courts had been in violation of the Constitution's Article III chiefly because none of the judges had been interested in taking up the issue legally. In its place he simply decided that the revocation of the Circuit Courts in the Judiciary Act of 1801 and the re-formation of the Circuit Courts within the Supreme Court Structure as presented in the 1802 Act had been not illegal or undemocratic. The matter, in Paterson's opinion, was settled by allowing the Supreme Court Justices to be Circuit Courts Judges as well, just as part of the initiation of the Federal Judicial System (Dorf, 2004).

According to Dorf (2004) the lawsuit of Stuart was a lot more important that Marbury's as it unfastened the complete surrender by the Supreme Court to the latest political truth: Jeffersonian domination as the Ruling Party. Taking into consideration both the lawsuits, Stuart v. Laird and Marbury, he states that the Supreme Court had acted under political and administrative demands imposed on them at that particular moment. The Supreme Court decided in favor of Marbury and declared that his rights had been indeed debased by the Jefferson ruling party and he had every right to pursue legal fees; however, Marbury would not get his legal fees because the Judiciary Act of 1789 was, at the time of the case, deemed illegal, also the court also decided that the Jeffersonians had the right to eradicate the Circuit Judges and Courts. The combination of the two decisions is beyond genius as Chief Justice Marshal had been able to hold-high the important articles of the Repeal Act of 1802 through the interpretation and application of a far less important act of 1789, giving the Jefferson Ruling party the approval of the rules and regulations (Dorf, 2004).

The Marbury lawsuit is almost every time deemed as the pioneering case whereby the theory of the Sovereign American Judicial System had been established. In accordance with this point-of-view, the Marbury case signified the weight of separating the regulatory parties from the political tug of war and highlighted the main task of the Supreme Court as the executor of the laws and regulations without succumbing to the political strife and compulsions...


However, upon looking at the case from a different angle, this viewpoint changes drastically. The Madison vs. Marbury case comes across then as the mould of an advocacy struggle and the deficiency of the judiciary to separate itself from the overall politics. The fact that emerged after this analysis of this particular angle was that the independence of the judiciary was not actually in effect till the Jefferson ruling party decided not to dispel Justice Chase after Marbury had denied to take office in the Marbury vs. Madison case and the application of the Repeal act in the Stuart vs. Laird lawsuit (Kahn, 2002).

Also, the Marbury vs. Madison lawsuit depicts the responsibility of the judicial setup in an unflattering light, i.e. The court had stated that Marbury had rights against the Justice department and had been done wrong by them but did not give him the opportunity to exercise those rights because of the involvement and influence of stronger political parties, not mentioned publicly. When looking at the Marbury case form this angle, its very close in comparison to the Giles vs. Harris lawsuit where Justice Holmes of the Supreme Court declared that nothing could be done about the disenfranchised people in the black community within the State of Alabama even though it was in breach of the Fifth Amendment (Kahn, 2002).

Discussion and Conclusion

The Marbury lawsuit is naturally and frequently deemed as the designer or engineer of the judicial review. Professor William Van Alstyne agrees with this theory and claims that the judicial review and its application in the legality of the state and federal laws under the authority of the Supreme Court was mainly due to the decisions made during the Marbury vs. Madison lawsuit (Kahn, 2002).

It is common knowledge that even before the existence of the Marbury case, the judicial review and its application was a popular practical theory. Numerous studies have however tried to bring about varying debates and angles to see the weight and importance of the Marbury case by simply bringing forth examples where the judicial review had been used even before the Marbury lawsuit. Also, one fact that supports the existence and recurrent use of the judicial review even before the Marbury lawsuit was Marshall's seizure of authority to apply and use it in the Marbury case and the normal, un-excited reaction that the decision received. Also the decision shows a consistency between the Marbury case and previous law enforcement theory (Treanor, 2005).

It is also no hidden fact the judicial review and its application gained a boosted amount of support after 1803 and after the Marbury lawsuit it faced a considerable amount of criticism and antagonism as well. The antagonism and criticism had mainly been from the frontier states on the authority given to the Supreme Court of the eradication of the local or state laws (Treanor, 2005).

Numerous articles have frequently brought forth the point that Marshall never necessarily would have decided the result until and unless the "Exceptions" Clause allowed the Congress parties to generate an "exception" to petition a lawful expansion of the judiciary and its responsibilities or the permission to let the Article III of the Constitution to be converted into the basis for the authority of the Congress to overthrow or remove laws and regulations (Treanor, 2005).

One last point-of-view about the Marbury vs. Madison case could be to strictly see it as the basis for the eradication of the illegal or undemocratic laws, as well as, regulatory bodies; this particular angle is not only strong but also dynamic, as it makes Marshall look like he had been trying really hard to make everything illegal disappear. On the other hand, when the application of the laws applied is reviewed then one can clearly see that the courts, in order to protect their sovereignty in the lawmaking body not only overthrew but also shut down similar legal bodies, as well as, laws. While making this case, one cannot exclude the bigger political perspective, which formed the decision, however, it is significant to understand that Marshall was not only maintaining the power over judicial review but also interpreting the Constitution to nullify a law that influenced the Judicial System and had not been visibly illegal.


Clinton, Robert L. (1989). Marbury v. Madison and judicial review. University Press of Kansas. Taken at http://library.uh.edu

Clinton, Robert Lowry. (1994). Game…

Sources Used in Documents:


Clinton, Robert L. (1989). Marbury v. Madison and judicial review. University Press of Kansas. Taken at http://library.uh.edu

Clinton, Robert Lowry. (1994). Game Theory, Legal History, and the Origins of Judicial Review: A Revisionist Analysis of Marbury v. Madison. American Journal of Political Science. 38, 2, pp. 285-302. Taken from www.jstor.com

Dewey, Donald O. (1970). Marshall vs. Jefferson: The political background of Marbury vs. Madison. Knopf Publications. Taken at http://library.uh.edu

Dorf, Michael C. (2004). Constitutional law stories. Foundation Press. Taken at http://library.uh.edu

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