2. Constitutional Law I Spring 2004MarburyCon Law I Marbury v. Madison The origins of judicial review

3. Fall 2000Marbury2 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?

4. Fall 2000Marbury3 Questions asked by S.Ct. 1. Has the applicant a right to the commission he demanded?

5. Fall 2000Marbury4 Marbury’s Right to Commission Marbury certainly has an interest in the commission When does that mature into a right? Notion of vested rights All elements established by law are satisfied Protection of expectations

6. Fall 2000Marbury5 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]”

7. Fall 2000Marbury6 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.” Since all steps are complete, Marbury’s right has vested.

8. Fall 2000Marbury7 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?

9. Fall 2000Marbury8 Right vs. Remedy Rights without remedies Rights with non-legal remedies Political remedies “can never be examinable by the courts” Rights with legal remedies Remedies specified by positive law Unspecified remedies  Very essence of civil liberty is protection of the laws  The US will cease to be a government of law if the laws furnish no remedy for vested legal rights

10. Fall 2000Marbury9 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? Is it on account of the character of the person against whom the complaint is made?  Is the Secretary of State above the law? The President? Because delivery of Marbury’s commission is a “mere political act”?  Respecting the entire nation, not individual rights?

11. Fall 2000Marbury10 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?

12. Fall 2000Marbury11 Is Mandamus by SCt right remedy? Nature of Mandamus Power of the S.Ct to issue Mandamus

13. Fall 2000Marbury12 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? To control the exercise of her discretion? To require her to obey the law? Can the president be sued? Can the president’s key advisors? It is not the office, but the nature of the thing to be done

14. Fall 2000Marbury13 Can the SCt issue mandamus? Does it have power (jurisdiction) to act? why do we care? Why did Marbury sue directly in S.Ct?

15. Fall 2000Marbury14 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.”

16. Fall 2000Marbury15 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 S.Ct.” Art. III, § 1 “The judicial Power … shall be vested in … such inferior Courts as the Congress may from time to time ordain and establish.” Art. III, § 2, cl. 2

17. Fall 2000Marbury16 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.”

18. Fall 2000Marbury17 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?

19. Fall 2000Marbury18 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?

20. Fall 2000Marbury19 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?

21. Fall 2000Marbury20 Who interprets the constitution? Option 1: Each branch interprets it for itself Has congress interpreted Art. III for itself? Option 2: One branch has ultimate interpretive authority If so, which branch? If so, is its interpretation binding on other branches? On the rest of the country? return to this question shortly

22. Fall 2000Marbury21 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 it imposes limits on gov't power?  Federal gov't has limited power  Set forth in a written constitution

23. Fall 2000Marbury22 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"?

24. Fall 2000Marbury23 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?

25. Fall 2000Marbury24 So what if §13 conflicts with Art III? What happens if a law passed by congress conflicts with the text of the constitution? Is the constitution merely moral authority, an appeal to the conscience of elected officals? Is it still law? Does it still bind other departments? A court must give operative effect to either the const. or the ordinary law. Which? "the court must determine which of these conflicting rules governs the case"

26. Fall 2000Marbury25 Who interprets the constitution? "It is emphatically the province and duty of the judicial department to say what the law is." Why? In deciding cases, "the court must determine which of these conflicting rules governs" It must look into the constitution "This is of the very essence of judicial duty"

27. Fall 2000Marbury26 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."

28. Fall 2000Marbury27 But wait a minute Even accepting the S.Ct's authority to intepret the const. and delcare 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.”

29. Fall 2000Marbury28 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

30. Fall 2000Marbury29 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)

31. Fall 2000Marbury30 Martin v. Hunter's Lessee 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

32. Fall 2000Marbury31 Martin v. Hunter's Lessee 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

33. Fall 2000Marbury32 Cohens v. Virginia 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?

34. Fall 2000Marbury33 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