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In the Marbury v Madison (5 U.S. 137, 1803) case, Chief Justice Marshall inadvertently established the doctrine of judicial review by denying Marbury the right to a circuit court judge position by outgoing President John Adams. Thomas Jefferson’s incoming Secretary of State, as an anti-federalist, did not want to grant Marbury the commission, and the Congress sought to force him through a Supreme Court issued Writ of Mandamus to grant the commission. Though Marshall was himself a federalist who would have benefitted from the placement of Marbury, he believed that it would be beneficial to establish the doctrine that the judicial branch of government had the right to overturn decisions made by both the executive branch and the legislative branch. At the time, this meant John Adams and the overwhelmingly federalist Congress which had voted in favor of Marbury. Since the Constitution is a living document which encompasses all Supreme Court’s decisions including the decision set forth by this case, it does indeed give the Supreme Court the power to invalidate actions of other branches of the government.
Marshall outlined three criteria that Marbury had to pass in order to be granted the judge position. These were whether Marbury had a right to the commission, whether right could be established through a legal remedy, and whether a Writ of Mandamus, established in the judiciary act of 1797 as a way for the Congress to force the executive to do something, was constitutional. Though Marshall determined that the first two requirements were met, he determined the Writ of Mandamus clause of the Judiciary Act unconstitutional, thereby setting a precedent for a strong tradition in America of judicial review. Since this case, America has granted a unique amount of power to the judicial branch of government to regulate the decisions of the other two branches.
However, this is not to say that the Supreme Court has supreme rule of the land. There have been a number of cases that have questioned and curbed the doctrine of judicial review. One such case was Nixon vs. Fitzgerald (457 U.S. 731, 1982). This case established that the need for respect of presidential fluidity calls for a need of civil immunity in official presidential acts. In cases where there is a void of explicit congressional affirmation, the President can and indeed must be able to act freely without the constant fear of civil suit. Justice Powell’s majority opinion here very relevantly emphasized the vital importance of the President’s duties and the inherent riskiness of an overly cautious President. He determined that the President needed immunity from a civil suit brought up through an accusation of a wrongful firing. This curbed the power of the Supreme Court to invalidate the actions of the executive branch.
During the drafting of the American constitution, new ideas about democracy and the rights of people to participate in and consent to their own governments were relatively new, and the ideas about social contract and freedom from the state of nature from philosophers, such as John Locke and Thomas Hobbes, were highly influential. Ultimate power in the hands of the government was seen as the essence of human corruption (Offut 39). Probably the greatest demonstration of these principles of democracy can be found in the First Amendment. This amendment is very complex and includes several aspects of protection of human rights from government intervention. These include the freedom of speech, the freedom of the press, the right to peacefully assemble, and the establishment clause. The establishment clause of the First Amendment guarantees the right from the establishment of religion within the government, and is commonly referred to as the separation of church and state (U.S. Const. amend. I).
This original meaning has been continually reinterpreted and translated through the precedent set by many Supreme Court’s decisions over the course of American history. One such case was Epperson V. Arkansas (393 U.S. 97, 1968). In this decision, an Arkansas public biology teacher challenged legislation put forth by the Arkansas state legislature which outlawed the teaching of biology. When it went to the Supreme Court, this law was held to be in violation of the establishment clause of the First Amendment because by its practical effects it propagated certain religious beliefs.
I disagree with this decision because though the original corpus of the Constitution does not explicitly grant a right to privacy this right has been incorporated into the Constitution by subsequent Supreme Court decisions. The most important of these decisions was the Griswold V. Connecticut 381 U.S. 479 (1965) case. In this case, Griswold challenged a Connecticut law which prohibited the use of contraceptives, and the Supreme Court overturned the legislation through an argument based on the 9th amendment, which guarantees implied rights of people from the government. The original text of the constitution was meant to be adapted through new legislation and judicial review. The right to privacy is becoming an increasingly important part of human rights, even though it is not explicitly expressed in the Constitution itself. It is through this reasoning that I think it is appropriate to rule that the current Supreme Court’s decision is in violation of an individual’s implied right to privacy.