Judicial Review Origins
According to a book entitled, Words That Bind: Judicial Review andthe Grounds of Modern Constitutional Theory, the origins of judicial revieware somewhat undefined by the constitution. The book asserts, "The role of the judiciary is the least well-defined of the three branches of government: Article III, which establishes the courts, speaks of "judicial power" that is "vested in one supreme court" and of the power of the Court to hear cases "arising under" the Constitution of the United States. The nature and limits of judicial power are not delineated, nor is it explained which cases "arise under" the Constitution. Indeed, the Constitution neither explicitly gives the federal courts authority to overturn statutes passed by Congress and state legislatures nor states that judicial review is not among the Court's functions."(Arthur) The book goes on to explain that even though the power of the SupremeCourt over judicial review is not well defined, the Court has exhorted thispower. (Arthur) The Court has played a large role in overturning severalstate laws, such as laws against abortion and birth c
If so, then the second question arises: Does he also have a legal remedy that will vindicate the right' Then, third: Is Marbury entitled to the remedy he has requested from the Supreme Court, that is, does the Court have the power to issue the writ of mandamus'" (Arthur) Marshall found that Marbury did have a right to the commissionbecause it had already been granted to him by the president and Senate. " (Arthur) Marshall made many arguments for judicial review. (Arthur) The underlying issue in this case was whether or not the SupremeCourt had the right to determine if certain laws or acts wereunconstitutional. (Arthur) The book explains that thedecision, "left those in the other branches who opposed judicial review, and they were many, without a means to resist. Madison thereare no ambassadors, consuls or states involved and it did not involve anappeal from a lower court. The book asserts that, "Marshall Opinion in Marbury is organized around three questions. " (Arthur) For thethird question Marshall found that, "Having established Marbury's right, and the legitimacy of his claim that government must provide a remedy, Marshall then turns to the question of whether Marbury is entitled to the particular remedy he requested: a writ issued by the Supreme Court based on the authority given it by Congress. "(Arthur) For the third argument Marshall found that even though Marbury had aright to a remedy, the Supreme Court did not have the power to provide himwith a writ of mandamus. (Arthur) TheCourt has also overturned measures which prevent prosecutors from usingillegally acquired evidence, prohibited school prayers and segregation inpublic schools and the perpetuation of racism and sexism in the electoralprocess. Here, however, it was unnecessary for either of the other branches to do anything in order for the decision to stand, just as there was little they could do to block it. Marshall's answer is that despite Marbury's strong claim on the merits, the Supreme Court does not have power under the Constitution to issue a writ of mandamus. The author contends that sense the timeof Marshall Judicial Review has been utilized to strike down many laws thatwere deemed unconstitutional. (Arthur) In doing this Marshall left opponents ofjudicial review with no defense. (Arthur) Marshall's assertions that thegovernment and its courts must make the law clear to citizens and enforcethe laws have proven to be true. This was hisinterpretation of the Constitution as it relates to Judicial Review.
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Acceptance Essays
