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Edited on Fri Sep-24-04 01:33 AM by RoyGBiv
Background to what I said in another thread on the subject ...
Here's the thing a lot of people don't realize about that case. The case itself had nothing to do with judicial review.
The elements of the case involved William Marbury, who had been granted a commission as a justice of the peace along with several others the day before Adams, who had appointed him, left office. Not-so coincidentally, John Marshall, still sometimes acting in his capacity as Secretary of State despite being a SC judge, certified the commissions. What exactly happened is unclear, but a batch of these commissions were never delivered, and when Jefferson took office, he ordered Levi Lincoln, Jefferson's acting Secretary of State prior to Madison taking that office in May, to withhold them. Jefferson eventually developed a new list of appointees to fill the vacant positions, and all but four of Adams's selections were on it. Marbury and three others then filed suit against the Secretary of State, who by then was Madison, for not delivering their commissions.
And the fun part is that the Marshall Court ruled *against* Marbury. The way Marshall developed his opinion is the mark of one of the most brilliant legal minds ever to walk the soil of this nation. He actually opined that the Judiciary Act did *not* grant the Court the authority to grant the writ of mandamus because Congress had exceeded its constitutional authority with that element of the law. To explain that and justify the basis of the ruling, he developed the outlines of the principle of judicial review as it came to be known and used it against the logic of the case. It put Jefferson in a total bind. If he opposed the decision and tried to do something to invalidate it because he opposed judicial review, then he was in effect opposing the ruling in favor of himself and his own orders to Levi/Madison.
IOW, Chief Justice Marshall simply used the decision as a convenient device for establishing it because he wanted to settled the question of which branch or branches of government held the authority of constitutional interpretation and whether the judiciary branch was a totally independent branch of government. He didn't care as much about the specific case, even though it was a hot political controversy at the time, as the avenue it opened for him and hide ideological allies. Another thing a lot of people don't realize is that this was a heavily contested idea during the Constitutional Convention, so much so that in the final document, the matter was left vague. In addition, even with Marbury v Madison, other individuals and members of other branches government still claimed the right under certain circumstances, notably Andrew Jackson and Abraham Lincoln.
It was a brilliant move on his part, and fortunately he wasn't challenged too heavily at that time, nor was the principle truly tested for several decades. When it was, it was already so firmly established that threats to it weren't too serious. However, criticism of the principle has remained and is apparently growing. Using the "God" issue is simply a emotionally charged way of pushing through the idea that the Court itself is not an equal branch of government.
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