Critique on Marbury v.

Madison regarding Judicial Review: The case is about Marbury petitioning for a writ of mandamus to compel Madison to issue Marburys commission in relation to his appointment as the justice of the peace in the District of Columbia. The facts of the case are as follows: President John Adams appointed several justices, including William Marbury, on his last day in office. President John Adams signed the commissions and acting Secretary of State John Marshall sealed the same. The commissions were not delivered before the end of the term of Adams as President resulting to his successor, President Thomas Jefferson, declaring them invalid thus refusing to honour them. William Marbury applied for a writ of mandamus to compel Secretary of State, James Madison, to deliver the commissions. The Supreme Court was granted original jurisdiction to issue writs of mandamus ..to any courts appointed, or persons holding office, under the authority of the United States, by the Judiciary Act of 1789. With the said facts, the issues of the case regarding Judicial Review and the courts original jurisdiction to issue a writ of mandamus are: Does the court have the power to review acts of Congress and subsequently declare them unconstitutional and therefore void? In the case of Marbury v. Madison, does the court have original jurisdiction to issue a writ of mandamus?

With regards to these issues, the court held: The court has the power to review acts of Congress stating;
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [5 U.S. 137, 178] So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

The court ultimately denied Marburys petition on the grounds that the court does not have original jurisdiction and only appellate stating;
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to [5 U.S. 137, 176] appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.

Furthermore, the Congress cannot expand the scope of the Supreme Courts jurisdiction when the Constitution has expressly limited said jurisdiction. I agree with the Courts decision and reason regarding the Supreme Courts power of Judicial Review. Without this power, the Congress can pass whatever they desire as laws without respecting or even acknowledging the Constitution. This is nothing short of unlimited power. It is this power of the Supreme Court to uphold and review laws passed by the Congress which balances what is possibly an overwhelming power of the Congress. This does not however in any way mean that the Supreme Court is superior to the Congress just because the Judiciary can declare what they pass as unconstitutional. Whatever the Supreme Court declares as unconstitutional, as the word itself suggests, must be solely based on the Constitution. Although it can be argued that it is in the Supreme Courts discretion what to declare as constitutional and unconstitutional, they cannot, however, go beyond the boundaries of the Constitution. Another point of argument is that the Supreme Court being the ultimate arbiters of all constitutional questions is in itself composed of Judges ..as honest as other men, not more so, according to President Thomas Jefferson and They have, with others, the same passions for party, for power, and the privilege of their corps.. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. In simple terms, they are also susceptible to corruption and thus power of judicial review they hold is potentially dangerous. With all due respect to President Jefferson, I both agree and disagree with him. It is true that these justices are only human; therefore they are also subject to human nature and by no means are they perfect. Their interpretation of laws and the constitution are not flawless but nevertheless, final and forms part of the law of the land which really represent a potential danger. However, President Jeffersons view implies distrust in the

judiciary; it implies that the Supreme Court is incapable of rendering absolute unbiased decisions. While this might be true, this kind of opinion indirectly questions the integrity of the Judiciary and could prove to be more dangerous than the Supreme Courts power of judicial review should a significant number of the population heeds the Presidents opinion. These Justices are not elected, they are appointed and while it can be argued that their appointment was not entirely unbiased, their qualifications as seasoned lawyers are unquestionable. They have been in the practice of law and in service of Justice for a significant amount of time that, although we cannot say their interpretations and decisions are faultless, they are founded on reason and justice.

Bibliography
Lawnix. (2012). Marbury v. Madison Case Brief Summary. Retrieved June 25, 2013, from www.lawnix.com: http://www.lawnix.com/cases/marbury-madison.html

Thomson Reuters. (2013). Marbury v. Madison. Retrieved June 25, 2013, from laws.lp.findlaw.com: http://laws.lp.findlaw.com/getcase/us/vol/getcase/US/5/137.html Wikipedia. (2013, June 13). Marbury v. Madison. Retrieved June 25, 2013, from en.wikipedia.org: http://en.wikipedia.org/wiki/Marbury_v._Madison