Marbury vs. Madison

Marbury vs . Madison (5 U .S . 137 , 1803 ) involved an application for a writ of mandamus against the then Secretary of State Madison , directing him to deliver to Marbury his commission as a Justice of the Peace for the District of Columbia . In determining whether or not mandamus would lie , the Supreme Court made a four part inquiry involving the following questions , to wit : 1 ) whether or not the applicant Madison has a right to the commission he demands 2 ) in the affirmative , whether or not the laws of the United States afford

him a remedy for its violation 3 ) in the affirmative , whether or not mandamus is the proper remedy . The case is considered a landmark case , because it was the first time that the US Supreme Court , through then Chief Justice Marshall , enunciated the doctrine of judicial review , i .e , that the Supreme Court has the power to review federal or state legislation , or acts of government officers and other individuals , to determine whether or not they are in consonance with the provisions of the Constitution , and to strike down such laws and acts if they are found to be unconstitutional Specifically , Chief Justice Marshall stated that : 'If an act of the legislature , repugnant to the constitution , is void , does it notwithstanding its invalidity , bind the courts , and oblige them to give it effect .It is emphatically the province and duty of the judicial department to say what the law is .If two laws conflict with each other , the courts must decide on the operation of each (5 U .S . 137 178 . So if a law be in opposition to the constitution if both the law and the constitution apply to a particular case , so that the court must either decide that case conformably to the law , disregarding the constitution or conformably to the constitution , disregarding the law the court must determine which of these conflicting rules governs the case . This is of the very essence of judicial duty (5 U .S . 137 , 179

Over the years , the doctrine of federal and state judicial review has been developed and enhanced , despite there being no express provision on its grant to the judicial branch of government under the constitution In interpreting the constitution , there are generally six forms of construction that are usually applied , i .e , historical , textual structural , doctrinal , ethical , and prudential (Fallon , 1987 . The historical construction centers on the original legislative intent behind the provision , while the textual interpretation involves the text itself , and the structural interpretation contrasts the text with the structure given in the constitution . Ethical and prudential considerations generally involve a determination of whether or not it would be proper , ethical , or wise to make a ruling . The doctrinal form of construction involves another doctrine , that of stare decisis

The complete Latin term is stare decisis et non quiete movere Literally translated , it means stand by decisions and do not move that which is quiet ' The doctrine of stare decisis or of case...