WEEK 9 DISCUSSION: CONCEPT OF THE SEPARATION OF POWERS - THE JUDICIARY /CRITICAL, ANALYTICAL, RESEARCH PAPER

Instructions for writing Paper:

Please write a critical, analytical, research paper analyzing the assigned topic below. Your analysis must NOT exceed 300 words EXCLUSIVE of Works cited.

Use of personal pronouns and contractions are not allowed. Proper citations within text MUST be strictly observed at all times. Use of encyclopedia as a source is prohibited and so is citing the example paper and class lecture as sources.

Copy and paste entire paper topic in the top of the page in which you post your paper. Paper topic is NOT part of Word Count nor is works cited.

Paragraphs must not exceed the normal structure of a paragraph and must be clearly separated from other paragraphs in the paper. You must show WORD COUNT at the end of the paper and every effort must be made to respect assigned word count. It behooves everyone to carefully edit your paper before submission.

There are consequences for failing to follow ALL instructions provided for writing ALL assignments from the beginning of the class. YOU MUST FOLLOW THEM. This assignment may be your last for you to demonstrate the development of critical, analytical, research and writing skills. Note the number of points this assignment is worth.

Thank you.

 

JUDICIAL REVIEW

In 1803, the Supreme Court of the United States under the leadership of Chief Justice John Marshall, former Secretary of State under President John Adams, presided over the Marbury v Madison case and handed down its decision which brought the concept of Judicial Review long practiced at the State level to the Federal level. This case established the concept of Judicial Review at the Federal level for the first time and remains a Starre Decisis in American Jurisprudence to this day.

ASSIGNED PAPER TOPIC

Analyze the concept of Judicial Review at the Federal level and the crucial role played by Chief Justice John Marshall in the formulation of this concept. Ensure that your analysis first place this case in its proper social, historical, and political context, that it systematically engages the politics of the Federalist and Anti-Federalist sentiments of the time, and that it clearly and systematically demonstrates the impact this case continues to have on American Jurisprudence to this day.

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EXAMPLE OF A MUCH LONGER VERSION OF PAPER OF SAME TOPIC FOR REVIEW

Below is an example of a much longer version of same topic for your review.  I am NOT touting it as the best paper ever! Rather, am providing it as an example of an assignment albeit a much longer version although you are being asked to write a  shorter paper of 300 WORDS. Please read it and learn something from it.

Prof. Woolcock

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EXAMPLE OF A CRITICAL, ANALYTICAL, RESEARCH PAPER (long version)

Topic:  Analyze the concept of Judicial Review at the Federal level and the crucial role played by then Chief Justice John Marshall in the formulation of this concept in the1803 Starre Decisis case of Marbury v Madison. Ensure that your analysis is not a mere rehearsal of that Starre Decisis but rather a critical,  systematic and coherent examination of the politics of that time and how that politics was played out at the judiciary level between the Federalists and anti-Federalists.

(PLEASE NOTE: The example below is of a much longer paper than the one assigned for you to write. This example is provided for you to get a sense of a longer paper on the SAME topic even though you are asked to write a much shorter paper --300 words ONLY)

LONG VERSION OF SAME TOPIC

In the aftermath of a bitterly divisive presidential election in 1800 between President John Adams, a Federalist, and Vice-President Thomas Jefferson, an anti-Federalist, lame duck President John Adams made many judicial appointments; among them Secretary of State John Marshall, a Federalist, was confirmed as Chief Justice of the Supreme Court, and William Marbury, also a Federalist, received a commission as a Justice of the Peace in the District of Columbia (Supreme Court History).  The commission paperwork for Marbury and others was not delivered in the waning days of Adam's presidency.  After President Thomas Jefferson took office, he directed Secretary of State James Madison not to deliver some commission papers, including Marbury's.  Marbury and three other men petitioned the Supreme Court to issue a writ of mandamus to force Madison to honor the commissions (Supreme Court History).

As a backdrop to Marbury vs. Madison (1803), the Founding Fathers' conflicting views between a strong federal government versus states' rights continued to permeate politics at the federal level. The political bitterness during the presidential election of 1800 took the form of inflammatory rhetoric between the Federalists and anti-Federalist; both sides warned of carnage should the other party's candidate be elected (Bellesiles 59).  The political canvas of Marbury vs. Madison includes many months of volatility and uncertainty regarding who would become president; the presidential election of 1800 was prolonged not only because voting of the populace was spread out from April to October 1800, but because the rules at that time allowed for tie votes to be decided by the House (Freeman 87).   Thirty-six votes of the House were required to break the tie and declare Thomas Jefferson the president (Freeman 88).  The defeat for the Federalists in 1800 was resounding; not only did they lose the executive branch to the Anti-Federalists, but they also lost Congress, leaving the judicial branch, via Marshall’s appointment as Chief Justice, as the only branch of the federal government with a significant Federalist presence.  

In addition, a few years prior to Marshall's appointment as Chief Justice, Congress had expanded the powers of the Supreme Court. Article III Section II specifies limited cases in which the Supreme Court has original jurisdiction, which includes questions of the constitutionality of state and federal laws; in other cases, the Court has appellate jurisdiction.  The Constitution gave Congress the freedom to determine the number of justices and establish lower federal courts; Congress passed the Judiciary Act of 1789 which established five associate and one chief justice for the Supreme Court, and created the federal circuit and district courts.  Section 13 of the Judiciary Act of 1789 expanded upon the role of the Supreme Court as the original decider, to include the power to issue writs (Thompson Reuters).

Marbury vs. Madison (1803) presented Chief Justice John Marshall with a dilemma; if the Court's decision did not appear to be politically independent, the fledgling Supreme Court could be in danger of being accused of playing politics at the judiciary level between the Federalists and anti-Federalists.  Marshall brilliantly asked and answered three questions in his written decision in Marbury vs. Madison (1803). First, does Marbury have a legal right to the commission he demands?  Second, do the laws of the United States allow the courts to grant a remedy (in the form of a writ) to Marbury?  Third, if so, does the Supreme Court have the jurisdiction to issue the writ? The Supreme Court decided Marbury had a right to his commission, that he had a right to a remedy (a writ), and the law must provide him with a remedy.  Marshall wrote that the courts must protect the rights of individuals, even against the president of the United States.

It was in answering the third question that Marshall addressed the issue of Judicial Review.  Section 13 of the Judiciary Act of 1789 gave the Supreme Court the right to grant Marbury's writ, but the Court ruled that Section 13 was unconstitutional because it expanded the Supreme Courts' powers of original jurisdiction beyond those given to the Court in Article III of the Constitution.  Marshall wrote that, "The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution" (Thompson Reuters 2015.) Chief Justice John Marshall's beliefs are summarized in one of his most profound statements from the Marbury vs. Madison (1803) decision, "It is emphatically the province and duty of the judicial department to say what the law is."  Marshall had the political independence to rule as he did because Article III Section I of the Constitution grants Supreme Court justices lifetime terms of appointment; they may be removed from office only for inappropriate behavior, and their compensation can never be decreased.  Therefore, justices are immune from the changing political whims of the president and Congress, and from political retaliation. 

Through the Starre Decisis ruling in Marbury vs. Madison (1803), Marshall’s appointment as Chief Justice quickly proved to be a turning point in the importance of the Supreme Court; this ruling established the concept of judicial review, showed that the Supreme Court stands as the final arbitrator of the constitutionality of laws enacted by the legislative and executive branches, and firmly ensconced the Supreme Court as the primary source of checks and balances on the other two branches of the federal government.

Works Cited

Bellesiles, Michael A. The Soil Will Be Soaked with Blood.  In: Horn, John, Jan Ellen Louis, and Peter S. Onuf, editors.   The Revolution of 1800: Democracy, Race, and the New Republic.  University of Virginia.  2002.  Print.

Freeman, Joanne B.  Corruption and Compromise in the Election of 1800.  In: Horn, John, Jan Ellen Louis, and Peter S. Onuf, editors.   The Revolution of 1800: Democracy, Race, and the New Republic.  University of Virginia.  2002.  Print.

Marbury vs. Madison. Majority opinion by Chief Justice John Marshall, issued 24 February 1803.   Supreme Court History. The First Hundred Years.  Web.< http://www.pbs.org/wnet/supremecourt/antebellum/sources_document10.html> (Links to an external site.)Links to an external site.

Supreme Court History. The Court and Democracy.  Landmark Cases. Marbury vs. Madison (1803).  Web.  <http://www.pbs.org/wnet/supremecourt/democracy/landmark_marbury.html>

Thompson Rueters.  Annotation 6-Article III. Power to Issue Writs: The Act of 1789. 2015.  Web. <http://constitution.findlaw.com/article3/annotation06.html>

U.S. Constitution.  In: Dye. Thomas R. and Harmon Zeigler. The Irony of Democracy: An Uncommon Introduction to American Politics. Boston.  2009.  Print.