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Judicial Review

1217 words - 5 pages

In Federalist 78, Alexander Hamilton argued that the Judicial Branch is the “least dangerous to the political rights of the Constitution" and that it is “beyond comparison the weakest of the three departments of power” since it has “neither force nor will, but merely judgment.” [*] While it is true that Hamilton wrote the Federalist Papers as propaganda to garner support for the Constitution by convincing New Yorkers that it would not take away their rights and liberties, it is also true that Article III of the Constitution was deliberately vague about the powers of the Judicial Branch to allow future generations to decide what exactly those powers should be. In the 1803 case of Marbury v. ...view middle of the document...

Hamilton stated that the Judicial Branch can merely judge, and even then would be unable to accomplish anything substantial without the aid of the Executive Branch. [*] According to him, the Judicial Branch “has no influence over either the sword or the purse,” which the other two branches of government have control of, and is thus “beyond comparison the weakest of the three departments of power;...it can never attack with success either of the other two." [**] However, Hamilton was incorrect in making this argument because the powers the Judicial Branch holds in evaluating the constitutionality of a law are just as important to many citizens as “the sword or the purse.” Judicial review is the power to "attack with success...the other two." In the actual text of the Constitution, Article III states: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority."[*] This statement is somewhat vague, as it does not mention anything regarding procedures for when there is no existing law or treaty concerning a topic, and thus leaves the Supreme Court potentially open to acquiring more power than the Framers of the Constitution (including Alexander Hamilton) may have intended.
In 1803, the landmark case Marbury v. Madison was decided under Chief Justice John Marshall’s Court, in which judicial review was practiced for the first time. In Marbury v. Madison, William Marbury and several other men were appointed to government positions at the end of John Adam’s presidency and confirmed by the Senate, but never received the commissions for the jobs. [*Oyez M v. M] As a result, Marbury sued Secretary of State James Madison, who was instructed by the newly inaugurated President Jefferson to withhold delivery of the commissions. [*Casebriefs M v. M] In the end, all four of the Justices who voted on the case agreed with the majority opinion in favor of Madison. [*Oyez] The majority opinion, written by Chief Justice John Marshall, declared that the power granted to the Judicial Branch to "to issue writs of mandamus” in the Judicial Act of 1789 was unconstitutional because Article III of the Constitution specifically lists the types of cases that the Judicial Branch should deal with. [*law2.umkc.edu] Justice Marshall wrote, “A law repugnant to the Constitution is void, and…courts, as well as other departments, are bound by that instrument," as the Constitution "the fundamental and paramount law of the nation." [**] This statement established the Constitution as the supreme law—one that no other law or government department, including the Supreme Court, can contradict. It allows the...

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