2. Marbury v. Madison (1803): Outline of Marshall’s Argument Marbury has a right to the commission because all the legally discretionary steps in his appointment have been accomplished and the appointment is complete. Delivery of the commission by the Secretary of State is not discretionary; it is his duty under the law. Where there is a right, there is a remedy and that remedy is a writ of mandamus. But the Supreme Court is powerless to grant it. The judicial power of the Supreme Court is either original or it is appellate, and only the latter is subject to exceptions and regulation by Congress. Therefore, in so far as the Judiciary Act of 1789 alters the Supreme Court's original jurisdiction, it is unconstitutional. To allow the Congress to override the Constitution would be to undo the very essence of limited government. It is the province and duty of the Judicial Department to say what the law is, and when statute and constitution conflict we must reject the statute and enforce the Constitution.

3. The Judiciary & the Welfare State 1900-1937 The Foreign Policy Exception

4. Key Cases MISSOURI V. HOLLAND (1920): Article VI establishes the supremacy of treaties over state law, even when those treaties require exercise powers not expressly granted to the federal government. If the treaty is valid, the implementing statute is valid as necessary and proper. U.S. V. CURTISS-WRIGHT EXPORT CORP. (1936): the view that the federal government has only enumerated powers “is categorically true only in respect of our internal affairs.” Courts describes the “plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations.” U.S. V. BELMONT (1937) : executive agreements are not treaties requiring Senate approval, but they have the force of treaties domestically.

5. The Judiciary & the Welfare State 1900-1942 Economic Regulation

6. MEMBERSHIP OF THE U.S. SUPREME COURT 1932-1936 Conservative*SwingLiberal Van DeVanter (R) 1910- 1937 McReynolds (D) 1914-1940 Sutherland (R) 1922-1938 Butler (D) 1922-1939 Hughes, C.J. (R) 1930- 1941 Roberts (R) 1930-1945 Brandeis (R) 1916-1939 Stone (R) 1925-1941 Cardozo (D) 1932-1938 *The fearsome foursome of substantive due process–a remarkably consistent voting bloc: Willis Van DeVanter (Republican, Wyoming, Chair of Republican National Committee, Taft) James C. McReynolds (Democrat, Tennessee, U.S. Attorney General, Wilson) George Sutherland (Republican, Utah, state senator, Harding) Pierce Butler (Democrat, Minnesota, railroad attorney, Harding)

7. THE SUPREME COURT'S RESPONSE TO ECONOMIC REGULATIONBEFORE AND AFTER THE SWITCH IN TIME THAT SAVED NINE [Cases won by the government, i.e., where regulation was sustained, are printed in bold blue type.] NATIONAL REGULATIONSTATE REGULATION pre-switch U.S. v. E.C. Knight (1895) Champion v. Ames (1903) McCray v. U.S. (1904) Shreveport Rate Case (1914) Hammer v. Dagenhart (1918) Stafford v. Wallace (1922) Bailey v. Drexel Furniture (1922) Carter v. Carter Coal (1936) U.S. v. Butler (1936) Slaughterhouse Cases (1873) Munn v. Illinois (1877) Allgeyer v. Louisiana (1897) Jacobson v. Massachusetts (1905) Lochner v. New York (1905) Muller v. Oregon (1908) Burns Baking Company v. Bryan (1924) Home Building &Loan v. Blaisdell (1934) post-switch Steward Machine Co. v. Davis (1937) N.L.R.B. v. Jones & Laughlin (1937) U.S. v. Darby (1941) Wickard v. Filburn (1942) West Coast Hotel v. Parrish (1937) Edwards v. California (1941) [state lost, but strong view of national commerce power prevailed]