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The case of Marbury v Madison 5 U.S 137 (1830) is one of the most notable cases in the United States. Over the years, scholars have presented varying views concerning the validity of judicial review as one of the roles of the Supreme Court and its effect on separation of powers between the judiciary and congress.
Justice Robert H. Jackson underscores the dilemma that the judicial review process creates by granting the judiciary power to nullify laws passed by the representative body of the government thus limiting the power of the majority to govern the country. On the other hand, judicial review provides an avenue through which the judiciary provides checks and balances for the legislature, thus ensuring adherence of laws to the constitution.
Constitution makers in the United States choose the limited majority rule option as their preferred ideology. This paper explores arguments by Lawrence Baum and Timothy Johnson on the validity of this choice. The authors discuss issues regarding the decision making process in the Supreme Court and its effects on legislative policies.
In my opinion, limited majority rule benefits all branches of government as well as the people that the institutions serve. It also ensures that members of congress enact policies that address the needs of the American society as opposed to personal needs of the lawmakers, thus making it the better option of the two choices as explained in this paper.
Arguments in support of limited majority rule
Lawrence Baum in his book, The supreme Court, explains that the one of the main issues generating controversy with regarding the role of the Supreme Court is the fact that the role grants the court the ability to nullify laws made by congress. In his defense of the implementation of judicial review, he draws attention to a distinction between the will of the majority in reference to the society and the will of the majority in reference to the members of the legislature.
He states that most of the scholars who present opinions against judicial review often overlook the difference between the two concepts of the term majority in their analysis of situations.
In his opinion, statutes that fail to comply with the constitutional provisions often represent the will of the majority in terms of members of the legislature and note with reference with the American people (Baum 32). He states further that in cases when the will of both the society and members of Congress is evident the Supreme Court often grants its support through its decisions.
However, during instances when it is evident that the will of the majority only represents the will of the representatives of the people and not the people themselves, the judicial review creates a threshold where the courts can protect the interests of the American people by limiting the power of the majority (Baum 38).
In the case of Marbury v Madison, the court gave its reason for dismissal of the petition as repugnancy of the statute, which provided the basis for the petition. In the case, President John Adams appointed William Marbury Justice of the Peace for the District of Columbia. It was the duty of the Secretary of State at the time, James Madison, to deliver the commission to Marbury.
However, Madison refused to deliver the commission, thus prompting Marbury to petition to the Supreme Court seeking orders to force Madison to deliver the commission although the court found that Madison acted unlawfully by failing to deliver the commission, it ultimately ruled against Marbury.
he court found that the provision of the Judiciary Act, under which Marbury had petitioned, was unconstitutional as it extended the court’s original jurisdiction established under Article III of the constitution. The article established the judicial branch as well as powers the branch should exercise. The court dismissed the petition and explained that it had no obligation to abide by a statute made by Congress that made provisions contrary to those of the constitution.
Chief Justice John Marshall found the provisions of the statute to be repugnant and thus inadmissible in determining the case. An analysis of the case with Baum’s argument on the entity constituting the majority reveals that judicial review in this case limited the rule of the members of Congress rather than the American people.
Baum defends the limitation of majority rule in this case by stating that the court also plays the role of defending the integrity of the constitution as part of its implementation. According to Baum, the constitution forms the fundamental law that lays ground for the generation of the rest of the laws in any society. In his analysis of the issue, he adds that the constitution represents the fundamental policies that define a society and govern its existence.
Therefore, any other policies that fail to comply with the provisions of the constitution fail in their representation of the majority (Baum 60). In his perspective therefore, nullification of such statutes by courts results in the protection of the will of the people rather than its limitations. According to this justification, judicial review limits majority rule in instances when the majority is an entity other than the American public and is thus legitimate.
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One of the arguments that lawmakers have advanced against this perspective of the majority rule is that the legislature acts as a representative entity of the people in government and therefore the statues it enacts represent the will of the people.
Baum expounds that even though the legislature represents its electorates, the decisions individual members of Congress make are sometimes indicative of personal interests and go against the constitutional provisions. He insists that the court’s mandate regarding judicial review operates principally according to the constitutionality of a statute (Baum 65).
Another argument that some scholars advance against the limitation of majority rule is that courts use judicial review to dictate laws and create opportunities for the creation of other laws favorable to the institution. This argument stems out of the premise that some of the methods that the judiciary uses to interpret statutes allow it to overstep its mandate and assume the power of the legislature.
Such scholars note that one of the defenses the judiciary gives for such action is the absence of legislative provisions on some issues and vagueness in others. They add that by limiting the majority rule, the courts encourage the persistence of such inadequacies and subsequently create an environment that allows them to ‘create’ laws through case law and manipulate the direction in which Congress creates laws.
For instance Timothy Johnson, author of Oral Arguments and Decision Making in the United States Supreme Court, mentions the application of precedents as one of the methods judges of the Supreme Court apply when interpreting statutes and making decisions.
He explains that the application of the principle of precedents in case law requires judges of the Supreme Court to consider decisions the court has made in the past, exhibiting similar facts under similar circumstances. In most cases, lawyers also use this principle to support their cases and make compelling arguments (Johnson 43).
Although the argument bears some truth, it is critical to appreciate that judicial review seeks not to curtail the ability of the legislature to make laws, but it only prevents the application of repugnant statutes due to their unconstitutionality. Johnson explains that even though the Supreme Court sometimes bases some of its decisions on case law, it collectively considers other factors including statutory law.
He adds that case law often serves to clear doubts regarding the application of certain statutory provisions in cases where the provisions bear more than one meaning (Johnson 52).
Baum’s contribution regarding the use of case law in decision-making is that it creates some uniformity and eliminates the possibility of contradictory application of the law by the Supreme Court. In fact, the element of predictability in the application of case law makes the formulation of statutory laws easier as it allows lawmakers to spot gaps in legislative provisions and make appropriate changes, constitutionally.
He emphasizes that the Supreme Court cannot make laws and thus relies on the input of Congress in rectifying statutory inadequacies (Baum 72). In cases where Congress fails to identify such gaps in legislation, the courts continue to use case law.
It is also important to note that the inception of case law applicable as precedents always relies on existing laws. Any substantial alteration in the statutory provisions on which such case law is founded elicits formulation of new case law, which incorporates the current changes. The old cases only serve to persuade the court on points of law.
It is worth noting that the judiciary’s power to nullify laws passed by Congress only runs to the extent of the unconstitutionality of such laws. This provision ensures that the judiciary also stays within its mandate and does not extend its mandate to include making laws through disapproval of laws that do not appeal to the institution’s interests.
Although limitations of majority rule through judicial review lacks codification or universal acceptance, the application of the concept depends on the jurisdiction and regarding this case warrants acceptance in the United States. The power of judicial review exists in the American constitution as one of the roles of the judiciary, thus eliminating the need for elements such as international acceptance and statutory inclusion.
In addition, the concept of separation of power requires each branch of government to keep the other in check to avoid misuse of power, and thus the legislature should not be an exception based on the simple view of its representation of the people.
The limited majority rule is thus a valid and important concept with which all branches of the American government under the American constitution should comply, regardless of the arguments some scholars present against the idea. I chose the limited majority rule as my preferred option as the concept prevents the possibility of moral hazard and protects the interests of both the majority and the minority classifications of the populations that leaders represent.
Baum, Lawrence. The Supreme Court, Washington, DC: Congressional Quarterly Press, 2012. Print.
Johnson, Timothy. Oral Arguments and Decision Making in the United States Supreme Court, New York: State University of New York Press, 2011. Print.