1. Constitutional Law I Marbury v. Madison The origins of judicial review

2. Fall 2004Marbury2 Players James MadisonJustice Marshall appointed justice of the peace by Pres. Adams Thos. Jefferson’s Secretary of State William Marbury

3. Fall 2004Marbury3 Players James MadisonJohn Marshall appointed justice of the peace by Pres. Adams Thos. Jefferson’s Secretary of State Adams’ Secretary of State / also Chief Justice William Marbury

4. Fall 2004Marbury4 Questions asked by S.Ct. 1. Has the applicant a right to the commission he demanded? 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3. If they do afford him a remedy, is it mandamus issuing from this court?

5. Fall 2004Marbury5 Questions asked by S.Ct. 1. Has the applicant a right to the commission he demanded?

6. Fall 2004Marbury6 Marbury’s Right to Commission Marbury certainly has an interest in the commission When does that mature into a right? Notion of vested rights

7. Fall 2004Marbury7 Does Marbury have a vested legal right? Steps involved in becoming an officer of the US 1st, The nomination. Art. II, § 2: The President “shall nominate … ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States” 2d. The appointment. Art. II, § 2: The President “by and with the advice and consent of the senate, shall appoint [the aforesaid]”

8. Fall 2004Marbury8 Does Marbury have a vested legal right? 3d. The commission. Art. II, § 3: The President “shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.” Commission … Affix the Seal of the US Delivery Since all (discretionary) steps are complete, Marbury’s right has vested.

9. Fall 2004Marbury9 Questions asked by S.Ct. 1. Has the applicant a right to the commission he demanded? YES 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

10. Fall 2004Marbury10 Right vs. Remedy Rights without remedies Mere promises Rights with non-legal remedies Political remedies Rights with legal remedies Remedies specified by positive law Unspecified remedies  Courts use their common law powers to fashion remedies

11. Fall 2004Marbury11 A remedy for Marbury? As a general matter, our system of law provides remedies for violations of rights Is the general rule defeated in this case? political This is not a suit against the President (or aides) in his political capacity ministerial Rather, one demanding he perform a ministerial act. Suits enforcing political rights are only politically examinable Individual rights can be enforced by courts

12. Fall 2004Marbury12 Questions asked by S.Ct. 1. Has the applicant a right to the commission he demanded? 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3. If they do afford him a remedy, is it mandamus issuing from this court?

13. Fall 2004Marbury13 Is mandamus by SC the right remedy Nature of Mandamus Power of the S.Ct to issue Mandamus

14. Fall 2004Marbury14 Nature of Mandamus Writ issued to gov’t official commanding her to perform a particular act. Can Mandamus be directed to a high government official? Can the president be sued? Non Sub Homine, Sed Sub Deo Et Lege

15. Fall 2004Marbury15 Can the SCt issue mandamus? Why did Marbury sue directly in SCt? Does SCt have power (jurisdiction) to act? why do we care?

16. Fall 2004Marbury16 SCt Jdx specified by Congress Judiciary Act of 1789, § 13 And shall have power to issue … writs of mandamus or persons holding office “The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for... And shall have power to issue … writs of mandamus, in cases warranted by the principles and usages of law, to any court appointed, or persons holding office, under the authority of the United States.”

17. Fall 2004Marbury17 Authority of Congress over jdx Isn’t this case authorized by the Act? Source of congress’ power Art I, § 8, cl. 9 “to constitute Tribunals inferior to the SCt” Art. III, § 1 “The judicial Power … shall be vested in … such inferior Courts as the Congress may from time to time ordain and establish.”

18. Fall 2004Marbury18 Authority of Congress over jdx Art. III, § 2, cl. 2 original jurisdiction appellate jurisdiction “In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. ”

19. Fall 2004Marbury19 Authority of Congress over jdx If congress has authority under the constitution to specify the S.Ct’s appellate jdx and so specified it to include issuance of mandamus to federal officers, why is there a problem? Did congress exceed its authority? appellate jurisdiction “Supreme Court shall have appellate jurisdiction … with such exceptions and under such regulations as the Congress shall make ”

20. Fall 2004Marbury20 SCt Jdx specified by Congress Judiciary Act of 1789, § 13 And shall have power to issue … writs of mandamus or persons holding office “The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for... And shall have power to issue … writs of mandamus, in cases warranted by the principles and usages of law, to any court appointed, or persons holding office, under the authority of the United States.”

21. Fall 2004Marbury21 Does §13 conflict with Art. III? Art. III Original Jdx Ambassadors, public ministers, consuls, States Appellate Jdx All other cases Section 13 Appellate Jdx from the circuit courts and courts of the several states General Jdx power to issue … writs of mandamus Does the constitution authorize the S.Ct. to directly issue mandamus to federal officers?

22. Fall 2004Marbury22 Is Mandamus original or appellate? If appellate, certainly authorized both by Art. III and by Section 13 If original, then authorized by Art. III if Secretary of State is a “public minister” or if Congress may enlarge the enumerated categories of original jdx Who decides these questions? Who interprets the constitution?

23. Fall 2004Marbury23 Who interprets the constitution? Option 1: Each branch interprets for itself Has congress interpreted Art. III for itself? Option 2: One branch has ultimate inter- pretive authority If so, which branch? If so, is its interpre- tation binding on other branches? On the rest of the country?

24. Fall 2004Marbury24 Why even interpret the const? What does the constitution do? Create and organize the gov't "It may either stop here; or establish certain limits not to be transcended by those departments" How do we know that the Constitution imposes limits on government power?

25. Fall 2004Marbury25 Does const. trump ordinary laws? If not, congress may expand its own power, thereby creating unlimited gov't "certainly all those who have framed written constitutions contemplate.. That an act of the legislature repugnant to the constitution is void." See also Art. IV, § 2 “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land" first mentioned Does this mean "consistent with"?

26. Fall 2004Marbury26 Does const. trump ordinary laws? See also Art. VI, § 3 “The Senators and Representatives before mentioned, and the Members of the several State Legilsatures, and all executive and judicial Officers, both of the United States and the several States, shall be bound by Oath or Affirmation, to support this Constitution“ If the branches disagree on the meaning of the constitution, have the members of one branch violated their oath of office?

27. Fall 2004Marbury27 So what if §13 conflicts with Art III? What happens if a law passed by congress conflicts with the text of the constitution? A court must give operative effect to either the const. or the ordinary law. Which?

28. Fall 2004Marbury28 Who interprets the constitution? "It is emphatically the province and duty of the judicial dep’t to say what the law is." In deciding cases, a “court must determine which of these conflicting rules governs" It must look into the constitution "This is of the very essence of judicial duty"

29. Fall 2004Marbury29 Conclusion "Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."

30. Fall 2004Marbury30 But wait a minute Even accepting the S.Ct's authority to intepret the const. and declare laws void, Did it have to exercise that authority here? Could the Judiciary Act have been interpreted so as to avoid conflict with Art. III? And shall have power to issue … writs of mandamus or persons holding office “The Supreme Court shall also have appellate jurisdiction... And shall have power to issue … writs of mandamus, in cases warranted by the principles and usages of law, to any court appointed, or persons holding office, under the authority of the United States.”

31. Fall 2004Marbury31 Principles of Marbury Judicial Review Constitution is supreme over ordinary laws Courts are ultimate arbiters of const'l meaning Courts can declare acts of executive and legislative departments void (unconstitutional) Political Questions Vested Rights and Legal Remedies Art. III is ceiling on federal jurisdiction S.Ct. is a political organ

32. Fall 2004Marbury32 S.Ct. review of state courts Can the S.Ct. exercise appellate jdx over cases coming from state court? Article III does not limit review to inferior federal courts If congress does not create lower federal courts, then the S.Ct. will have little business Since state courts are bound to apply the constitution in relevant cases, we could have different meanings in different states State judges might be biased in favor of state interests (esp. since they're elected)

33. Fall 2004Marbury33 Martin v. Hunter's Lessee (1816) Case 1: Va. S.Ct. holds the state's seizure of certain Tory lands did not violate Treaty of Paris  Note: the VA court appreciated that US treaties were binding; it interpreted the treaty is allowing for this particular seizure USSC, on appeal, holds that state seizure did violate the Treaty; hence invalid

34. Fall 2004Marbury34 Martin v. Hunter's Lessee (1816) Case 2: Va. S.Ct. holds that its judgment was conclusive on the parties (land was in Va). USSC cannot sit in judgment on state courts “Courts of the United States, therefore, belonging to one sovereignty, cannot be appellate Courts in relation to the State Courts, which belong to a different sovereignty." USSC rejects this on 2 nd appeal

35. Fall 2004Marbury35 Cohens v. Virginia (1821) How different than Martin? State is a party State is exercising core sovereign right – to enforce its laws against its own citizens How can the const. be enforced against state officials if no appeal permitted to USSC?

36. Fall 2004Marbury36 Marbury A useful site for obtaining more information on the players in the case is at John Marshall Law School http://www.jmu.edu/madison/marbury/index.htm

37. Fall 2004Marbury37