Q1: Did Marbury have a right to the writ for which he petitioned?

Why Supreme
Court didn't issued such a writ? Justify with arguments.

Ans: Marbury v Madison case was decided in 1803 by Chief Justice Marshal of the
U.S. Supreme Court. Marbury v Madison case has a significant importance
because it was the first U.S. Supreme Court case to apply "Judicial Review", and it
allowed the supreme court to rule laws unconstitutional. It gave birth to the power
of Supreme Court as well as Federal Courts to declare legislative and executive
acts unconstitutional.

Judicial Review:

Judicial Review is the power of Courts of U.S. to examine the actions of

legislative, executive and administrative arms of the Government and to check
whether the laws are in accordance with the constitution or not.

Historical Background of the case:

The constitution called for the creation of a federal government with the three
branches i.e. Legislative, executive and judiciary.

Article 1 created the congress, the law-making body, article 2 established the office
of the president who is the executive of the country, Article 3 created the federal
court system consisting of one supreme court and other lower courts.

As with most aspects of the U.S. constitution, the meaning of the Article 3 was left
open to interpretation. In 1789, shortly after the constitution was ratified, congress
passed the Judiciary Act 1789, which established the federal court system.
Congress created a Supreme Court, three circuit Courts and thirteen district courts.
There was one district court for each of the 13 states.

The constitution did not specify the number of justices that could be appointed to
the Supreme Court but through the Judiciary Act, Congress provided for a Chief
Justice and five associate justices. However, the constitution and congress left the
scope of the courts power undefined. These powers would be gradually defined by
the Court's interpretation of the constitution in particular cases.

John Marshall who served from 1901 to 1835, influenced the action of Supreme
Court in such a manner which can be felt even today. A very significantly case
came before him which became the most important case ever decided in the history
of the United States.

Circumstances of the case:

In November 1800, President John Adams who was a federalist, lost his bid to re-
election to a republican candidate Thomas Jefferson. The federalists also lost
control of the congress. Before the new president and congress could enter upon
their office, the federalists had a few months left in the government. During these
months, John Adams persuaded the congress to pass the Judiciary Act 1801. This
act gave Adams the power o appoint several new federal judges. The federalists
hoped the Republican to fill the nation's court with such people who would be
opposed to the policies of the incoming administration. Adams was generally
successful in his effort, appointing some 39 new judges. Adams's secretary of state
was to deliver the commissions or the appointment letters. The secretary of state
failed to deliver commissions to three justices of peace before Adam's term of
office ended. One of the commission was to go to William Marbury.

When Thomas Jefferson became President in March 1801, he learned of the

Adams's attempt to pack the court with federalist judges. He also discovered the
failure of the remaining commissions. To prevent these federalists from becoming
justices of peace, Thomas Jefferson ordered his secretary of state James Madison
to refuse the appointments.

Marbury went to the supreme court and petitioned the Court to issue a Writ of
Mandamus in an attempt to gain his post. He wanted the court to issue an order
forcing Madison to give commission to Marbury. The Judiciary Act 1789 had iven
the Supreme Court power to issue such order.

The Court's decision:

In a unanimous decision written by Chief Justice, John Marshall, the Court stated
that Marbury, indeed, had the right to his commission. But more importantly, the
Judiciary Act 1789 was unconstitutional. In Marshall's opinion, the Congress could
not give power to the Supreme court to issue an order granting Marbury his
appointment, only the constitution could, but the document said nothing about the
power of Supreme Court having the power to issue such an order. Thus the
Supreme Court could not force Jefferson and Madison to appoint Marbury,
because it did not have the power to do so.

While Marbury never became a justice of peace but the Court's ruling in Marbury v
Madison established a very important precedent. Chief Justice Marshall's ruling
interpreted the constitution to mean that the Supreme Court had the power of
judicial review which means that the court had the right to review acts of congress
and by extension, acts of the president. It held that if the Supreme Court found a
law unconstitutional, it could overrule the law. Marshall argued that the
Constitution is the supreme law of the land and that supreme court has the final say
over the meaning of the constitution.

Q2: What is Montesquieu Theory of Separation of Powers? Throw light on the

veto power of the president in the context of checks and balances doctrine.

Ans: Montesquieu was the first political writer who first formulated the principles
of separation of powers and the independence of justice. He was the first to
scientifically study human institutions, both ancient and modern, Asiatic and
European, African and American.

The separation of powers is a widely regarded as one of the pillars of a liberal

constitutional democracy. The separation of powers attempts to prevent power
being concentrated in a single person or body. It provides mechanism to make it
difficult for any simple group to dominate and to ensure that government actions
require the cooperation of different groups, each of which helps to keep other
within bounds.

Montesquieu presented the idea of Trias Politica. Montesquieu divided government

into three branches: the legislature, the executive and the judiciary. The legislature
makes the laws, the executive forces and puts the law into effect and judiciary
settles disputes and imposes sanctions for breaking the law. According to the
doctrine of Separation of Powers, each branch has different function to do but each
branch uses its power to check and control abuse by other branches. Conversely,
within the limits of its power, each branch should be independent of the others.
What will happen if absolute power happen? According to Montesquieu, if a body
is given absolute power without control of other body, the body will become
invincible to other body and he will absolutely corrupt himself. “all great men are
bad”

How to prevent it from happen?

Again, according to Montesquieu, the power must be separated to avoid absolute

power co absolute power corrupt absolutely. rrupt absolutely. When there’s When
there’s separation of separation of power, there will be “ check and balance “.

Separation of Powers in context of U.S.:

The constitution contains no provision expressly declaring that the powers of the
three branches of the federal government shall be separated.

The first article of constitution says "all legislative powers shall be vested in
congress", Second article vests "the executive power in the president", the third
article places the "judicial power of the United States in one Supreme Court and in
such inferior courts as the congress may establish".

The Legislative: The legislative branch consists of House of Representatives and

senate which is called congress. Congress has the sole power to legislate for the
United States under the non delegation doctrine. Congress may not delegate its
lawmaking responsibilities to any other agency. Congress delegated the power to
prescribe judicial procedure to the courts. it was contended that congress had
unconstitutionally clothed judiciary with the legislative powers. The powers of
Legislature are checked by the veto power of the president and by the judicial
review where court can declare and act of the congress to be unconstitutional and
void. The veto can be overruled by congress if the same bill is passed by both
houses in the same manner by 2/3rd majority. The power to review the
constitutionality of laws may be limited by Congress, which has the power to set
the jurisdiction of the courts.

Executive: Executive power is vested with exceptions and qualifications in the

president of United States. By law, the president becomes the commander in chief
of army, navy and militia of several states when called into service. The president
has the power to "with advice and consent of the Senate" to make treaties and
appointments of office, receive ambassadors and public ministers and take care
that laws be faithfully executed. The constitution gives power to the president to
take care of the faithful execution of law and where he thinks that the law is not
faithful he can veto a bill presented to him. The President also can be restricted by
the Congress and he can be removed from his office upon impeachment. The
executive power of president are also checked by the Judicial Review, in which the
courts can restrain the President from exercising his powers in certain areas which
the court thinks that the exercise of such powers in unconstitutional.

Judicial: Courts check both executive and the legislative branches through judicial
review. This concept is not written in the constitution but was envisioned by many
of the constitution's framers. The supreme court later established a precedent of
judicial review in Marbury v Madison case.

The power to review the constitutionality of laws may be limited by Congress,

which has the power to set the jurisdiction of the courts. The only constitutional
limit on congress 'the power to set the jurisdiction of judiciary relates to the
Supreme Court.

Veto power of the President.

Article 1 Section 7 of the Constitution of United States details how bills become
law and describes the veto power of the President. Following is the process.

 First any bill for raising money must originate in the House of Representatives.
All bills must pass both the houses in the exact same form.
 Bills that pass both Houses are sent to the president.
 President can either sign the bill or veto it.
 If the President signs the bill, it becomes law.
 In the case of a veto, the bill is sent back to the Congress.
 If both Houses pass it by a Two-Third majority, the bill becomes law over the
president’s veto. This is called Over-riding a veto.

Pocket veto:

There are couple more options available to the president.

 First if he neither signs the bill nor vetoes it, after 10 days, it becomes law
automatically without his signature.
 The second option is called pocket veto. It occurs when the Congress sends the
bill to the President and they then adjourn. If the President does not sign the bill
within 10 days, it does not become law.

Q3. In the United States Presidential elections on what basis each state gets a
certain number of electors? Differentiate between Primary and Caucuses.

Ans: According to section 2 of the Constitution President and vice president are to
be elected by at the same time for equal four year terms. Until 1951, presidents
could serve for as many four year terms as they could win the elections, but after
president Roosevelt was four times, the congress passed 22nd amendment which
limits person to two four year terms.

Rather than being directly elected by the people, the president and vice president
are elected by electoral college. Electoral college is a group of people elected by
the states.

Who can become the member of Electoral college?

Neither member of congress nor federal officials can become members of electoral
college. Each state decides how members of electoral college are to be elected and
how they are to vote.

The creation of electoral college gives more power to the smaller states rather than
letting more populous states control over the presidents election.

Additional 12 rules were added in 1804 when 12th amendment was passed which
states that how a president is elected if no candidate is secures majority of votes in
the electoral college .

There are three minimum requirements to be elected as president.

 natural bon citizen of US.

 must be living in US for at least 14 years.
 35 years age.
Basis on which states get certain number of electors :

Electoral College was formed in 1787. In total there are 538 electoral college
members. States are allotted electors on the basis of their representation in
congress. The number of electors is equal to the number of members of House of
Representatives and Senate. For example If a state have 35 members in House of
Representatives and 2 senators, the number of electors will be 37. There are total
538 electors who vote for the president and vice president. Electors are equal to the
number of members of the congress which is 535 and 3 electors are from
Washington D.C.

To win an election, a candidate must secure majority of votes which means one
should secure at least 270 votes to become a President or vice president of the
United States.

The U.S. presidential elections process.

The election of U.S. takes a lot of time, it begins from the March of one year with
primaries and caucuses and it ends in the January of next year when the President
enters upon his office. In the following we will look into the U.S. presidential
elections process.
 Primary and caucuses
 National convention
 General election
 Presidential election
 Inauguration
The first stage is to select the final nominees of the party. Only one candidate can
be nominated for president and vice president by each party. Wherever elections
are held, delegates are appointed. These delegates form part in the national
convention. In the national convention there are thousands of delegates from all
the 50 states of America.

Primary:
Primary is a state level inter party election where voters or party members vote for
delegates via secret ballot. The process is dependent on the state, some states allow
all citizens of age of majority to vote while some states allow only registered party
members to vote for delegates. These delegates will then go to national convention
and vote for finalizing a candidate from their party. Some are super delegates
whose vote is of more value. Mostly super delegates are those who are senior
members of the Party.

Caucus:
Caucus is as opposed to primary an open meeting where delegates are chosen in an
open voting. It is decided by the party at state level whether they want to opt
primary method or caucus method for the selection of delegates.

Time for Primary and Caucuses:

In most of the states the primary and caucuses are held on Tuesday in March or
February which is called Super Tuesday.

Difference between Primary and caucuses:

 In primary, the delegates are elected through secret ballots whereas in caucuses
delegates are selected on open voting.
 Caucuses are loud and interactive whereas primary is quiet and secret
 Caucus is an old way whereas primary is newer one
 Primary is a straightforward way to elect delegates whereas caucuses is not that
much straightforward way.
 Primary is done in secret while caucus is done openly.

National Convention:
National convention is held in June. Delegates gather and vote for the Presidential
candidate. The candidate who secures second position is appointed as the candidate
for election of the Vice President.
After the candidates from parties are selected for elections, Campaigns and debates
are held from July to October. Rallies and Three televised debates where
candidates from both the dominant parties debate and share their motto on
television .

General election:
General elections are held the Tuesday falling next to the First Monday of
November. All citizens from all states who have attained the age of majority of 18
years vote for the electors. Electors are the members of electoral college who will
vote for the President and Vice President in December. The Electors are nominated
by parties and are elected by the public. So when people are voting for electors,
they vote for the one who is appointed by their favorite party. One must vote
according to his choice because there is a system of winner takes all. In U.S
presidential election, if in a state there are total 30 electoral votes, and out of 30
votes, one member gets 18 votes and the other gets 12 votes, the person who won
18 votes is entitled to get the 12 votes of the other candidate also and he thus gets
30 out of 30 votes. This is called winner takes all.

Presidential elections.
The electors then vote for the President and Vice President in December. The
person who secures majority of votes i.e. at least 270 votes is appointed as the
President.
The counting is done by Congress In January

Inauguration :
On January 20th, the president enters upon his office.

Reason behind so long breaks between each step :

There is a long break between every step because the U.S has a long electoral
history. In 18th century people used to walk hundred of miles to vote and it took a
lot of time to vote and then count votes etc., so that tradition is followed till date of
long gap between each step.

Q4: Populous and Swing states usually decide the fate of the winner in U.S.
Presidential election. Explain.

As we know that there is a Presidential form of government in U.S. The election

process is very unique one. The President and Vice president are elected by the
Electoral college which is established by the constitution in
the second article. Until 1951, presidents could serve for as many four year terms
as they could win the elections, but after president Roosevelt was four times, the
congress passed 22nd amendment which limits person to two four year terms.

There are three minimum requirements to be elected as president.

 natural bon citizen of US.

 must be living in US for at least 14 years.
 35 years age.

Parties:
There are two parties that have been ruling over United States since longs. These
parties are The Democrat and The Republican.
There is a great rivalry between Republican and Democrat parties when we are
talking in terms of U.S. presidential elections. There is tough competition between
both parties each time the elections take place.

How many times did republicans won the election?

18 presidents have had the label of Republican so far.

How many times did Democrats won the election?

16 Presidents have been called Democrats so far.

Number of Electors:
There are total 538 electors who vote for the president and vice president. Electors
are equal to the number of members of the congress which is 535 and 3 electors are
from Washington D.C.
To win an election, a candidate must secure majority of votes which means one
should secure at least 270 votes to become a President or vice president of the
United States.
The president and Vice president are elected by the electoral college. Each state
gets the number of electors equal to the number of members in congress i.e. House
of Representatives and Senate.

What are Blue and Red states?

Red states are states that vote firmly Republican, while Blue states are the states
that vote firmly Democratic.

What is a swing state?

It is a state of the U.S. in which the Democratic and Republican candidates both
have a good chance of winning. And that is considered key to the outcome of a
presidential election. There are states where always Republican have won, and
some states where always democrats have won but there are some states where
number of electors is higher than others and are unpredictable whether the
Democrats would win there or Republican. Such states are called Swing States.
Some swing states are : Ohio and Indiana.

Winner takes all:

In U.S presidential election, if in a state there are total 30 electoral votes, and out
of 30 votes, one member gets 18 votes and the other gets 12 votes, the person who
won 18 votes is entitled to get the 12 votes of the other candidate also and he thus
gets 30 out of 30 votes. This is called winner takes all. In this way the swing states
affect the U.S. elections to a very great extent. Because the President is elected
upon securing majority of votes, not the majority of states. I mean to say that the
states where there is more population, there will be more members of the electoral
college because the member of house of representatives will be more there, so
where members od house of representatives are more, the number of members of
electoral college will ultimately increase to the number of members of congress.
Even a person who has won more states than the other but if the candidate secures
more votes and secures simple majority, he is elected as the president.