What are some constitutional arguements against Marbury v Madison?

Question

My politics class is having a debate tommorow about whether Marabury v Madison is constitutional. I have to say its not. I hate the concept of judicial review, but our judges have been doing it so long I can't think of a coherant reason the constituion would forbid it.

I wasn't looking for information on M v M. I wanted to find arguements against it, but nobody seems to have any.

Answer 1

Lots of links:
http://www.altavista.com/web/results?itag=ody&q=Marbury+v+Madison&kgs=1&kls=0

Search engines are there, use them!

Answer 2

Marbury V Madison Arguments

Answer 3

Against what part of it? There were three important holdings in the case. Most people focus on just one, however, the ability of the court to declare a law unconstitutional.

The primary one is the plain text of Article VI. Which as phrased indicates that the constitution, and the federal laws and treaties, are all equally supreme. The court rejected that interpretation, holding that the constitution was above the statutes and treaties.

The argument rests on a premise, often quoted by law professors, that I find flawed. The argument is that since the constitution includes specific requirements for how it can be changed, a later statute that is not enacted following these procedures cannot change the constitution. And thus, if the law conflicts with the constitution, since it cannot change or override the constitution, the later statute must be invalid.

The most common example is also the most inane. The Constitution requires two witnesses to treason. What if a federal law only required one? That would conflict and thus which do you follow? The only solution is to make the constitution dominant.

I think that's an irrational argument because there is a much simpler way to resolve the problem. An earlier law that conflicts with a later law is overridden by the later law, if the later law is enacted by the same authority. Since Congressional statutes are not made by the same law-making body, they do not override the plain text of the constitution. And since the proper procedures were not followed to change the Constitution, any direct (textual) conflict is invalid because it was effectively an improperly made change.

But that only requires the Constitution to preempt when the actual text of the constitution is being changed or conflicted against. Anything that is not textually in the constitution doesn't get changed by a later law with different text. So, in the example above, a law saying that both witnesses to treason must be US military officers would be valid, since the plain text of the Constitution only required two people. No conflict, since it is possible to follow both the plain text of the constitution and the new law both at the same time.

The ability to declare laws unconstitutional, where the only conflicted with judicial interpretation and not the plain text of the constitution, was a massive power grab by the courts. And one that succeeded. There is no need to for having the courts be able to declare laws unconstitutional, unless the laws directly conflict with the plain text of the constitution. And that latter small subset is only valid because of the plain text of Article V setting forth the procedures of what is required to amend (change) the plain text.

Answer 4

The first argument is that Art III does not expressly authorize the S. Ct. to nullify an act of of Congress. The Court could simply have denied or dismissed Marbury's petition on the grounds of lack of jurisdiction. The result would have been the same but without a Constitutional holding that would create a precedent of Judicial Review of Congressional legislation.

The second argument is that Art III (Sec 2, pgh 2) does give the S. Ct. original jurisdiction "in all cases affecting Ambassadors, other public ministers and consuls. . . ." and that judicial officers are "public ministers." Therefore, the court had jurisdiction to order delivery of Marbury's commission.

I disagree on you on the matter of judicial review. The lack of judicial review is what leads to things like the Revolutionary French National Assembly. Without it there would be no check on the power of Congress or the executive to violate the limitations on their power expressed in the Constitution.

Answer 5

The argument against the constitutionality of judicial review stands on the premise that the role of judges is to decide guilt or innocence, not to decide on matters of law.

For example, a judge would be able to say, like in Brandenburg versus Ohio, that Brandenburg is innocent because of his constitutional protections of speech. However, the law would remain on the books. Essentially, the supreme court cannot be compelled to enforce a law that violates the constitution. Their action renders the law moot, but does not invalidate two other branches of government via judicial fiat.

Marybury versus Madison is unconstitutional simply because the supremos went beyond the constitution to define new powers.

Answer 6

First, you should review Article III, Section 2 and Article VI of the U.S. Constitution. The affect of Marbury was to clarify that the federal courts have the final say over the meanings of the federal constitution.

On occasion, the people of the United States have amended the Constitution in order to overturn what were perceived as incorrect decisions of the Supreme Court. There has never been much of a movement to overturn Marbury.

Arguments that Marbury is "unconstitutional" are absurd. How can the Constitution be unconstitutional?

Answer 7

that its unconstitutional. to be brief..

edit: i didnt say I think its unconstitutional, I was merely (and yes briefly and superficially) answering the question.

my source: I know how to read questions written in English.

Answer 8

Against or for?