Select Page

Constitutional Law I
University of Illinois School of Law
Lash, Kurt T.

Constitutional Law
Spring 2012
The Constitution and Marbury v. Madison
The Constitution
·         The first three articles of the constitution explain what the powers of the braches are
o   Art 1: Congress
o   Art 2: Pres
o   Art 3: Judicial
§  Section 1: Creates the SCOTUS and lower federal courts if Congress wants to
§  Section 2: Subject matter jurisdiction (cases and controversies)
·         Clause 1: All federal courts, needs to be on the list
o   Cases: federal question (organic act in this case)
o   Public ministers: another terms for foreign diplomats in art 3 so Madison as sec of state was not a public minister
o   Ambassadors
o   Admiralty
o   Where US is a party
o   More than one state
·         Clause 2: Just the Supreme Court
o   Org: Ambassadors, public ministers and state is a party
o   Appeal: all other cases, everything else
Federal Court’s Power of Judicial Review
·         Judicial review is the process by which the courts invalidate the laws of the majority in order to enforce the superior will of the people.
Marbury v. Madison: A law that is repugnant to the Constitution is void
·         Facts
o   On February 27, 1801 less than a week before the end of Adam’s term, Congress adopted the Organic Act of the District of Colombia, which authorized the president to appoint 42 justices of the peace. Marbury (P) appointed as judge by President Adams & confirmed by Senate on Adam’s last day in office. P’s commission was never delivered and when Jefferson administration took over, Jefferson told his Secretary of State Madison (D) to withhold P’s commission. 
o   P brings writ of mandamus against Madison (an order authorized by the Court to an officer of govt to do something) directly to the SC under authority of Judiciary Act of 1789 §13 (provided that the SC would have original jurisdiction to issue writs of mandamus to public officers).
·         Issue:
o   Is Marbury entitled to his Commission?
o   Does the laws provide a remedy?

o   Can the SCOTUS issue this remedy? Is mandamus an appropriate remedy?
·         Holding (Marshall): SCOTUS could not hear the case as a matter of original jurisdiction. Although the Judiciary act of 1789 authorized such jurisdiction, this provision of the statute was unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution
o   Is Marbury entitled to his commission? Yes
§  Marbury had a right to the commission because all appropriate procedures were followed
§  “It is decidedly the opinion of the court that when a commission has been signed by the President, the appointment is made and that the commission is complete”
o   Does the law provide a remedy? Yes
§  When there is a right there is a remedy
o   Can the SCOTUS issue this remedy? Is mandamus an appropriate remedy? Marbury does not win. SCOTUS has appellate jurisdiction and not original jurisdiction on this issue.
§  Article III Section 1 creates the supreme court of the United States and it is up to Congress to create lower courts.
§  Article III Section 2 talks about what the Supreme Court can do.
·         Section 2 Clause 1 is a long list of the subjects that the courts can hear: federal questions, diversity.
·         Adams appointed Marbury under the Organic Act which is a federal law so Marbury meets the first part of Article III
§  Section 2 Clause 2 gets Marbury in trouble
·         This divides up the jurisdiction of the Supreme Court. Marbury case should have been seen via an appeal
·         Only a certain number of cases can be heard via original jurisdiction (affecting Ambassadors, other public Ministers and Consuls and those in which a State shall be a prty), all other cases can be heard via an appeal like this case
§  Marbury argues that the SCOTUS had original jurisdiction to hear his suit for mandamus pursuant to section 13 of the Judiciary Act of 1789
·         The SCOTUS concluded that Article III enumerated its original jurisdiction and that Congress could not enlarge it.
·         NOT ON THE LIST
Marbury thought that Congress (section 13 of the Judiciary act) gave the SC the right to issue writs of mandamus in an original matter
·         This is where Marshall explains that this section of the act is unconstitutional so it must be struck down
·         Article III, Section 2, Clause 2: In all cases affecting Ambassadores, 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, both as to law and fact, and such exceptions, under such regulations as the congress shall make
·         Why isn’t this an exception (last sentence of clause 2:)
o   Textual, exception only modifies the appellate clause. It can be read including the word only. It could also be read these things are allowed.
o   Its ambiguous: 2 arguments
§  Exclusive, what Marshall thinks
·         1. Congress thru its exceptions can say “you can get it second but now we are saying you get it first”: it would destroy peoples ability to bring cases. Things that would already be at the seat of government are in the org jurisdiction box. Everything else can be appealed and people can develop their case in more local courts. Don’t want to burden the court.
·         2. Grammar rule: Congress can only make exceptions to appellate jurisdiction because there is a period after original jurisdiction
·         3. The listing of certain things are the exclusion of other things. If you listed things then why didn’t you list these other things. The founders should have included the right to issue writs of mandamus in the Constitution
o   Expressio Unius Est Exclusio Alterius
·         Minimum, at least these: possible to uphold section 13 to adding stuff
Marbury v. Madison Continued
Can the Supreme Court Declare Laws Unconstitutional?
·         1. The Constitution imposes limits on government powers and these limits are meaningless unless subject to judicial enforcement
·         2. It is inherent to the judicial role to decide the constitutionality of the laws that it applies. “It is emphatically the province and duty of the judicial department to say what the law is”
·         3. The Court’s authority to decide “cases” arising under the Constitution implied the power to declare unconstitutional laws conflicting with the basic legal charter.
·         4. Judges take an oath of office and that they would violate this oath if they enforced unconstitutional law
·         5. Judicial review is appropriate because Article VI makes the Constitution the supreme law of the land
Why did Marshall frame his opinion in this way?
·         Marshall was the Sec of the State and now is the Chief Justice. He is a Federalist and his party lost to the Democartic Republicans. The DR was looking at a way to impeach Marshall. The fact that he did judicial review was not enough to impeach. Neither was the fact that he invalidated the Judiciary Act because the Federalists passed it.
·         The part that drove Jefferson crazy was the first part because it showed why the court could push around the executive. Marshall didn’t need to write the first part, it was dicta. He had no author

erse a decision already handed out by the Court
United States v. Klein
·         Facts
o   In 1863, Congress adopted a statute providing that individuals whose property was seized during the Civil War could recover the property or compensation for it upon proof that they had not offered aid to comfort to the enemy during the war
o   The SCOTUS subsequently held that a presidential pardon fulfilled the statutory requirement of demonstrating that an individual was not a supporter of the rebellion
§  In 1870, a lower federal court ruled that Klein had been loyal on the basis of his having received a presidential pardon, and therefore he was entitled to payments for his seized land.
o   In response to this decision and frequent pardons issued by the president Congress quickly adopted a statute providing that a pardon was inadmissible as evidence in a claim for return of seized property
·         Issue: Is the Congressional statute in question a valid exercise of congressional authority under the Exceptions and Regulations Clause of the United States Constitution?
·         Holding (Taney): The statute was unconstitutional and that Congress had exceeded its power by invading the province of the judicial branch by prescribing the rule of decision in a particular cause.
o   Congress cant invalidate a decision that was handed down by the SCOTUS (a presidential pardon had the effect of proof one did not support the rebellion)
McCardle and Klein Summary
·         If the court gets to a judgment Congress cant change it (Klein) but if Congress takes it away before the Court makes a decision then it is okay (McCardle)
Restrict Supreme Court Jurisdiction
·         Proponents
o   Cite McCardle: Establishes that Congress may prevent Supreme Court review of constitutional issues
§  The fact that Congress intends to change the substantive law by limiting jurisdiction is deemed irrelevant for they quote the McCardle court’s statement that “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is give by express words”
o   Klein establishes only that Congress may not restrict Supreme Court jurisdiction in a manner that violates other constitutional provisions.
§  The statute was arguably unconstitutional as an infringement of the executive’s power under Article II of the Constitution
·         Opponents
o   McCardle is easily distinguished from contemporary attempts to prevent Supreme Court reviews of topics such as abortion and school prayer
o   Klein establishes that Congress may not restrict Supreme Court jurisdiction in an attempt to dictate substantive outcomes
§  By analogy, it would be unconstitutional for Congress to restrict Supreme Court jurisdiction in an attempt to undermine the Court’s protection in abortion and school prayer cases