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Constitutional Law I
Wayne State University Law School
Winter, Steven L.

·         Scope of the rule depends on the meaning of the words/text
“No animals on the bus” from the reading- what does that mean?
·         No humans?
·         Cant take the words literally, the bus is for the people
·         Look at the intent behind the rule
·         Look at precedent: how, where the rule has been applied over time
·         Purpose of the bus
·         Look at the context
·         Legal rules only have meaning in the context
·         Even what we think is the simple literal meaning of a rule, they are actually quite complicated
·         The more conventional/widely shared the assumption, the more the rule seems to be clearly literal
·         Ex: modern park vs. early parks created not for recreation
·         Words arent’ clear in and of themselves
·         Meaning of text is contingent on the understandings of context, and the rule can change as the underlying context changes
·         This rule was pretty useless- basically said ” do what you are supposed to do”
§ Social rules have been around
§ People have a sense of the law that arises out of the context/situation
·         No law would work if you had to enforce it all the time
·         Laws only work if they reflect people’s ideas of morals, practices, etc.
·         Law works ” Bottom- Up”, not “top-down”
§ We often think of it as top-down: authority is on top
·         Think about limits and scope of the rule
·         Constitution
§ An illegal document
§ They were not authorized to actually do this, they were only asked to amend some things on the Articles of Confederation
§ It becomes legal because we treat is as such (“bottom-up” )
§ Constitution was heavily undemocratic
§ Back then, only the House was elected
§ Designed to be undemocratic
§ Madison- says democracy was dangerous (because most people don’t have property and the framers want to protect their property)
§ Very elitist
Marbury v. Madison
§ Marbury was appointed Justice of the Peace by the defeated incumbent president, John Adams , at the last minute of his administration
§ Adams was Federalist, and his Federalist controlled Senate approved the appointments
§ The formal commissions were not in yet when Jefferson, the new Republican president, came into office
§ Jefferson refused to deliver the commissions of the justices appointed by Adams
§ Marbury and others sought to get a writ of mandamus to compel Madison (Jefferson’s secretary of state) to deliver the commissions
§ A rule was granted requiring the sec. of state to show cause why a mandamus should not issue, directing him to deliver Marbury his commission
Questions :
§ Has the applicant a right to the commission he demands?
§ His right originates in an act of Congress passed in Feb 1801 concerning the Dist. Of Columbia
§ Necessary to ask whether he has been appointed to the office
§ If he has the law continues him in office for 5 years and he is entitled to the possession of those evidences of office which being completed, became his property
§ The last act to be done by the president is to sign the commission
§ The court opinion is that once it is signed, it is an appointment and the commission is complete when the seal of the US has been put on by the sec. of state
·         By  signing the commission of Marbury , the President appointed him a justice of peace and that the appointment conferred on him a legal right to the office for the space of 5 years
§ If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
§ President is authorized to do things and to appoint people to help him, the acts of the officer cant be examinable by the court but if the legislature imposes other duties on him and the rights of individuals are dependent on his acts, he is amenable to the laws
§ Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, their acts are only politically examinable
§ But, where a specific duty is assigned by law and individual rights depend upon the performance of that duty, that the individual who concerns himself as injured, has a right to resort to the laws of his country for a remedy
·         Having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right for which the laws of his country afford him a remedy
§ If they do afford him a remedy, is it a mandamus issuing from the court?
§ Depends on the nature of the writ and the power of this court
§ Nature of the writ:
§ To render the mandamus a proper remedy, the officer to whom it is to be directed must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific legal remedy
§ This is a plain case for mandamus, either to deliver the commission or a copy of it, but we still need to ask whether it can issue from this court?
§ The secretary of state, a person holding an office under the authority of the US is within the description and if the court is not authorized to issue a writ of mandamus to such an officer, it must be because the law in unconstitutional and incapable of conferring the authority and assigning the duties which its words purport to confer and assign
§ Not necessary to use appellate jurisdiction
§ The authority give to the Supreme Court by the act establishing the judicial courts of the US to issue writs of mandamus to public officers appears not to be warranted by the constitution – it is necessary to inquire whether a jurisdiction so conferred can be exercised
·         A law repugnant to the Constitution is void and that courts are bound by the constitutions
·         The rule must be discharged  
Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. Congress cannot pass laws that are contrary to the Constitution, and it is the role of the Federal courts to interpret what the Constitution permits
Pasted from
Marbury’s argument is that in the Judiciary Act of 1789, Congress granted the Supreme Court original jurisdiction over petitions for writs of mandamus.
Marbury had the right to his commission but the court did not have the power to force Madison to deliver the commission,
·         Supreme Court is without power to direct the President to deliver Marbury’s commission
·         Republican – this was the dominant understanding of democracy throughout most of modern history
§ Civic Republicanism
§ Self governance, the group and the individual would be self governing (living by rules one gives to himself)
§ Living according to reason
§ Legislating and self rule for the common good
§ Be a good citizen, set aside what is best for you to do what is in the common good
§ “Civic Virtue”- put aside your own selfish interests and act in light of whats best for community as a whole
Audio recording started: 1:33 PM Thursday, January 15, 2009
§ Corruption- acting out of your own self interest- do what’s best for you instead of thinking of others
§ Dangers of faction- faction is a sub group of the whole that acts in its own group interest rather than with civic virtue (Madison talks about it in Fed. Papers 10)

a question of whom to appoint, which countries to recognize, etc- politically examinable
·         3rd Issue:
·          Is mandamus the correct remedy?
·         Is this the right court to issue the mandamus?
§ Mandamus lies for ministerial duties ( LAW category)
§ This is a matter of a simple legal duty, involving no politics, great discretion, it is straightforward
§ Mandamus is the right writ
§ He needs to create a conflict between the statute and the Constitution 
§ The Judiciary Act- Marshall wants to make this unconstitutional – Article III
§ Marshall’s argument:
·         Law Category- Appellate jurisdiction
·         Politics- Original Jurisdiction
·         Have to read the statute and the Constitution in a way in which they are in dispute
·         Marshall says there is only one reading of this constitutional clause
§ Madison Says the original jurisdiction clause should be read as not being exclusive
§ He says it is non-exclusive
§ Marshall argues back that “if we accepted Madison’s argument, that would mean we think that part of Article III is useless and there was no reason to put it in the Constitution”
·         Argument against this- there is another way to read what Congress wrote – it is not like Marshall says (not everything is the way he interprets it)
·         Possible that Congress was setting up a floor, not a ceiling (Article 3 )
·         Could do an “only” (exclusive) interpretation or an “at least” interpretation
·         Could have Supreme Court with a lot or a little appellate jurisdiction
§ Marshall says it cant mean that it is up to legislature to determine
§ Provisional
·         Make it only provisional would make sense, because you don’t know how things are going to develop
§ Marshall doesn’t want you to think about other possible interpretations – making use of the all or nothing structure
§ Has to read the statute in a way that is in conflict with the Constitution
·         He has to decide that he has the power to say its unconstitutional- so he has to find a conflict
·         Could avoid judicial review by reading the constitution more broadly
·         Marbury wants it to be Constitutional – his lawyer would argue that the Judiciary Act attempts to give appellate jurisdiction to hearing the mandamus and that is consistent with the way Marshall read the Constitution
§ If you read the statute, it is in the appellate jurisdiction section (pg 32) – it seems to be clear that Congress thought this was appellate jurisdiction
§ Rise of local governments in this period
§ Writ of mandamus for affirmative duties/ writ of prohibition for negative duties
§ Mandamus was appellate at that time
·         Marshall has us thinking in black and white
·         He pretty much invents modern judicial opinion writing
·         Introduces the idea of a majority opinion
§ English way was to have 3 judges and each would come up with their own opinion