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Constitutional Law I
University of Mississippi School of Law
Green, Christopher

Constitutional Law
Professor Christopher Green
Spring 2011
Marbury v. Madison (1803)
Summary – Marbury (1803) is a landmark case in United States law. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of State James Madison to deliver the documents, but the court, with John Marshall as Chief Justice, denied Marbury's petition, holding that the part of the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional. Marbury was the first time the Supreme Court declared something “unconstitutional”, and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the “checks and balances” of the American form of government.
Some Side Issues in Marbury
–          Can’t Jefferson just fire Marbury?
o   Myers (1926) says he could
–          Can a court tell executive officials what to do?
o   Marshall says he can, as long as it’s ministerial duty
–          I/6/2 bans legislative-executive and legislative-judicial combination of offices, but nothing bans executive-judicial combination
–          Should Marshall have recused himself, since he was involved in the facts?
–          Should Marshall have discussed all the other issues before deciding jurisdiction?
Marbury (1803): Background
–          Marbury goes directly to the Supreme Court for a mandamus against Madison, which he says § 13 of the Judiciary Act of 1789 authorizes the Supreme Court to issue, even without any other basis for jurisdiction
o   There are good reasons to doubt this statutory reading—usually courts say that the mandamus power isn’t itself a grant of jurisdiction, but allows courts to issue orders when there is already jurisdiction—but Marshall accepts this reading of § 13
–          III/2/2: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be 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.”
o   Marshall reads the grant of original jurisdiction in III/2/2 as exclusive—Congress can’t add to it, so § 13 of the Judiciary Act is unconstitutional
–          Should courts give Congress benefit of doubt and enforce the statute anyway? 
o   Marshall: No!
Marbury’s Five Arguments for Judicial Review
1)    Otherwise, Congress could just revise the Constitution!
o   “That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected.” (pp. 57-58)
o   “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.” (p. 58)
o   Not sure this follows—even without judicial review, Congress might still have to consider the issue, and the Constitution might still be fixed
§ See, e.g., political questions under I/2/5, I/3/6, II/4, IV/4
2)    “It is emphatically the province and duty of the judicial department to say what the law is.” (pp. 58-59)
o   “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” (p. 59)
§ That applies to the executive, too, surely, who must apply rules like the 4A to executive action before a court can rule
•       No implicit “only” like in III/2/2
o   “Those then who controvert the principle that the Constitution is to be considered, in court, as a paramount law [i.e., paramount to a statute and trumping it], are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [i.e., the statute].” (p.59)
§ Presupposes that the answer is clear, that refusal to engage in judicial review is willful blindness—but court might also say, “I don’t know”
•       Lots of possible positions on how confident a court has to be to strike down a law—Certain?  Beyond reasonable doubt?  Clear & convincing? Preponderance of evidence?
•       Lower standards = more judicial activism
3)    Must look at Constitution to decide cases arising under it, which III/2/1 says courts have jurisdiction to do (p. 59)
o   Examples here also presuppose clear case
4)    Courts take oath to obey Constitution under Article VI (p. 60)
o   President takes his own special oath in II/1/8, and Article VI requires all state & federal officials in all three branches to take same oath
5)    Only laws “in pursuance” to Constitution are supreme law of land, under Article VI, and that suggests only laws consistent with Constitution
Other Branches?
–          Seems pretty clear that they have to think about constitutionality before courts do
o   4A example
o   In McCulloch, Court defers to Congress on scope of federal power: would be kooky if Congress deferred to the Court on exactly the same question
–          Presidents generally think their obligation to obey Constitution trumps obligation to obey statutes
o   “executive review” endorsed by all recent presidents (probably all of them before that, too)
–          Presidents refusing to enforce judicial decrees?
o   Ex Parte Merryman (1861), most famous example
o   Jackson’s supposed (but probably fake) response to Worcester v. Georgia (1832): “John Marshall has made his decision; now let him enforce it!”
o   Federalist 78, in arguing for judicial review along lines very similar to Marbury, says courts depend on executive for decrees: “The judiciary … may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
State Officials? Intra-Branch Disputes
–          States refusing to obey judicial decrees

       Schoolhouse Rock on the development of currency
The Main Holding in McCulloch
•          The holding, p. 140:
–        “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
•          An anti-pretext limit on it, though, p. 140:
–        “[S]hould congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal [to strike it down].”
–        Law must be “really calculated to effect any of the objects entrusted to the government”
•          We’ll see an application of this in Hammer (1918)—ban on interstate commerce based on in-state labor practices
4 Main Arguments in McCulloch why implied power OK
(1)  Original Meaning: “Absolutely necessary” language in I/10/2 suggests that merely using “necessary” means only somewhat necessary (p. 138)
(2)  Original Meaning: 10A just says “delegated,” not “expressly delegated,” like a similar provision in the Articles of Confederation (A/C) (p. 135-36)
(3)  Precedent: Acquiescence by lots of people for a long time, thinking about the question carefully in response to well-developed arguments on other side (p. 133)
•       Note: sometimes the main precedents are legislative or executive, not judicial
(4)  Policy: Constitution ridiculously complex if every implied power were included; government unworkable if Congress couldn’t choose means (pp. 136-37, 138-39)
•       “This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.  To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code.  It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly…” (p. 138)
•       Partly phrased in terms of the framers’ intent, but partly in terms of policy
•          argument is roughly “The framers weren’t fools , and it would be foolish to do X, so the framers didn’t intend X”
•          Framers were, however, certainly sometimes fools (see, e.g., I/3/4 v. I/3/6 – differences who presides over Senate) & did some bad things (e.g., tolerating slavery)