Chapter 1: The Supreme Court’s Authority and Role
I) Section 1: The Power of Judicial Review
A) Marbury v. Madison (1803)
1) Questions, in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this court.
a. But this case involves acts of congress and general principles of law.
b. Madison directed by Congress to deliver commission.
c. Marbury entitled to the commission, but we are not the Court that is entitled to issue the writ of mandamus.
2) Judiciary Act of 1789, §13
a. authorizes Supreme Court “to issue writs of mandamus to any courts appointed, or persons holding office, under the authority of the United States.”
b. Secretary of State Madison is a person holding office. And if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional.
3) Article 3, §2, Clause 2: Jurisdiction of Supreme Court
a. “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 other cases before mentioned, the Supreme Court shall have appellate jurisdiction.”
b. Marbury says legislature has power to grant original restriction to the Supreme Court in cases where original jurisdiction is not specifically granted by the Constitution..
(i) If Congress remains at liberty to give this Court appellate jurisdiction, where the Constitution has declared it shall be original, and vice versa, the words of the constitution have no meaning.
(ii) The authority given to the Supreme Court by the congressional Act appears not to be warrented by the Constitution.
4) Seperation of Powers
a. The Constitution is the original and supreme will of the people. It organizes the government and assigns to different departments their respective powers. It also establishes certain limits to power
(i) The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed.
b. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part be true, then a legislative Act contrary to the Constitution is not law.
c. Certainly, all those who have framed written Constitutions conte
wer to interpret the Constitution.
2) Was the Question of Judicial Review avoidable?
a. Recusal
b. Common Law
c. Political Question
d. Statutory construction
e. Constitutional Interpretation
3) Marshall’s handiwork in Marbury
a. Asserted power of judicial review
b. Avoided confrontation with executive branch
4) Pre-Constitutional Antecedents of the Power of Judicial Review
a. A number of state courts before Constitition invalidated state stautues.
5) The Framers Understanding of Judicial Review
a. Hamilton: Federalist No. 78: “the interpretation of the laws is the proper and peculiar province of the courts”
6) Bicentennial Perspectives on Marbury
a. Marbury cannot have established judicial review, since that power was already widely accepted before the ruling. Klarman
b. I don’t teach it: The law student reading Marbury may decide the Constitution is what the judges say it is. The constitution is what a variety of constitutional actors say it is. Levinson.
