Marbury v. Madison
Judiciary act § 13, ART III § 2, Structural interpretation, Political V. Legal questions
The Supreme Court has the power of judicial review and the power to declare acts of Congress unenforceable when such acts are brought before the court.
POLITICAL/ADMINISTRATIVE
LEGAL/MINISTERIAL
Administrative Matters, Discretionary Decisions of Executive Branch, Constitutionally President has certain powers to which he is accountable to Congress only.
(a) Appointment of Officers
(b) Actions of officers who merely carry out the will of the president e.g. foreign affairs
Any matter where the legislature has imposed a duty on such a political appointee and the duties affect the rights of individuals he becomes an officer charged with carrying out the law. Courts then have the power to review.
ISSUE 1
ISSUE 2
ISSUE 3
Congress again, textually
it says we can amend the jurisdiction “with such exceptions and under such regulations as Congress shall make.
Marshall again structurally,
because of the way the clause is written the modification of jurisdiction allowed by the constitution is for appellate jurisdiction only. Congress cannot touch the original jurisdiction.
Martin v. Hunter’s Lessee
ART III § 2 cl. 1, § 25 Judiciary Act, Art I § 10, ART VI § 1 cl. 2 supremacy clause, ART III § 2 cl. 2 necc. & proper
The Supreme Court can review the decisions of a state’s highest court relating to Federal Law or the constitution but it cannot review decisions that are base on state law only. The distinction is problematic.
In accordance with Virginia law Virginia had given a Virginia citizen land that was the inheritance of a British Citizen. This was in direct opposition to a Federal Treaty that prevented the confiscation of the lands of British citizens after the war of independence.
Marshall was negotiating the Act of Compromise so this was a Story opinion.
THE ARGUMENTS
VIRGINIA
FEDERAL GOVERNMENT
The Supreme Court has no power to review the highest decision of a state court.
ART III § 2 cl. 1
ART III § 2 cl. 2
says that the federal Judicial power shall extend to all cases in law and equity arising under this const. The framers foresaw that issues would arise outside of the federal courts that required the constitutionality of certain actions to be evaluated so the constitution says cases not courts. Also if any law is in disagreement with const it is void ART VI § 1 cl. 2. allows congress to allocate the appellate jurisdiction as it saw fit AND SO § 25 of the judiciary act is constitutional in allowing writs to issue to state courts.
Yes Federal law is supreme but the State court is the court that should interpret and apply Federal Law in state. We are the final arbiters of it in our jurisdiction.
The need for Uniformity of the application of Federal Law across the nation is essential to the nation’s success and to ensure that selfish state interests do not take over in each state’s application of the law.
States are sovereign
so a grant of appellate jurisdiction that allows the Supreme Court to review state court decisions cannot be correct.
The constitution contains many areas where the power of the states is expressly reduced. E.g. ART 1 § 10 cl. 1-3 so the sovereignty argument is no good.
OLIVER WENDELL HOLMES:
NOTE ALSO:
Cohens v. Virginia
Supreme Court has appellate jurisdictions in state criminal cases if there is an issue of federal law.
Cooper v. AaronDesegregation case. Courts alone have the power to interpret the constitution.
PROBLEMS WITH COOPER
The morality removal theory
NOTE:
Supreme Court can review state court’s highest decision, Highest State courts are NOT BOUND to follow the interpretation of the law by the circuit and district courts that embrace their geographical region. It is strongly persuasive though.
State courts can broaden constitutional rights as long as there is no conflict with Federal Law.
McCulloch v. Maryland
Congress charters the 2nd bank of the US in 1816. The first charter had expired and corruption was rampant within the bank. The state of Maryland is attempting to tax the federal bank in accordance with a state law that requires all banks not chartered in the state to pay a tax.
MARYLAND
MARSHALL (Supreme Court)
The constitution does not give Congress the power to incorporate a bank. The word necessary in ART I § 8 cl 18 should be interpreted as and is restrictive. absolutely necessary
The word necessary is not restrictive. It is different from the word absolutely necessary as found in ART I § 10 cl 2. In ART I § 8 the word necessary is structurally juxtaposed to a series of clauses granting power to the federal govt. In ART I § 10 the word absolutely necessary is juxtaposed to clauses reducing the power of the states. Note that here Marshall is also using an original Intent argument which is somewhat questionable since 2 of the framers were on opposite sides of the issue. The power to tax equals the power to have a bank add to this the necc and proper clause and the power to have a bank is reaffirmed.
The states adopted the constitution so the states empower the federal government
The states did not adopt the constitution . The people of the nation adopted the constitution so once adopted the states have no power to overturn it.
We have the power to tax the bank under state law
The states do not have the power to tax the federal government. The representation reinforcing theory says that the state legislature is elected by the state and this keeps them in check. There will be no such restriction on fairness if the states are allowed to tax the fed govt.
NATURAL LAW ARGUMENT: there is a higher power than the constitution and the court has the power to see that this is also enforced even though it may be contrary to a textual interpretation of the constitution. Calder v. Bull illustrates 2 judges trying to decide what if any the natural law and positivism should play in interpretation of the law.
The Power of Reprisal: Political Control of the Supreme Court
AMENDMENT
POWER TO APPOINT
o
o
Some representation involved. Senate may say no or make president choose less controversial judges, e.g Judge Bork because of his views on
ke all laws necessary and proper to execute the constitutional mandate. This is the doctrine of implied powers.
This is a good example of what the antifederalists were afraid of. The interpretation of the constitution to give the federal government non enumerated powers
The general view was that Feds were prohibited unless express and staes were allowed unless express forbidden. Lack of express was generally in court’s favor.
The country will not fall apart if the Federal government lost the power to review the decisions of Congress but the nation would not survive if the Supreme Court lost the power to review the constitutionality of State court decisions.
Madison said that since the constitution was la w and judges were the ones who interpreted the law it was natural that the judiciary should interpret the constitution
Note the countermajoritarian dilemna.
TACTICAL BRILLIANCE: While his colleagues were occupying themselves thinking about the commission he subtly endowed the court with the power of judicial review.
PROBLEMS: Marshall assumed rather than concluded, the constitution does not say anywhere that judges should decide what is constitutional
Note the support for Marshall found in the Federalist #78. and the argument that if legislators decided what was const. It would be the fox guarding the henhouse
Note the history and potential conflict of interest that Marshall being on the court could have caused. He was the guy that was Sec. of State under Adams
Does the necc. and proper clause ART III § 2 cl. 2 give Congress the right to alter the Jurisdiction of the Supreme Court by legislative enactment as it sees fit.§ 13 of the judiciary act that alters the original jurisdiction of the Supreme Court is unconstitutional because it is contrary to the meaning of ART III § 2 cl. 2. In all cases affecting Ambass., other public Ministers, and consuls and where a state shall be a party the SC shall have original jurisdiction.
Congress interpreted textuallythat public ministers meant any public minister and so J. Act § 13 was constitutional because in allowing mandamus to correct acts of public officers it was not going against the jurisdictional allocations of ART III § 2 cl. 2
Marshall interpreted structurally
public ministers is located between Ambass and Consuls , refers to foreign public officers only so the Supreme Court has no constitutional power to issue Mandamus
Marbury had a right to his commission because he was approved by Congress. The delivery is a mere formality.
