Marbury by HC111211104255

VIEWS: 4 PAGES: 33

									   Constitutional Law I

 Marbury v. Madison
The origins of judicial review
                    Players
William Marbury     James Madison Justice Marshall




appointed justice   Thos. Jefferson’s
of the peace by     Secretary of State
Pres. Adams

Spring 2006              Marbury              2
                    Players
William Marbury     James Madison          John Marshall




appointed justice   Thos. Jefferson’s    Adams’ Secretary
of the peace by     Secretary of State   of State / also
Pres. Adams                              Chief Justice

Spring 2006              Marbury                      3
Questions asked by S.Ct.
1. Has the applicant a right to the
   commission he demanded?
2. If he has a right, and that right has
   been violated, do the laws of his
   country afford him a remedy?
3. If they do afford him a remedy, is it
   mandamus issuing from this court?



Spring 2006        Marbury                 4
Questions asked by S.Ct.
1. Has the applicant a right to the
       commission he demanded?




Spring 2006         Marbury           5
Marbury’s Right to Commission
    Marbury certainly has an interest in the
    commission
         When does that mature into a right?
    Notion of vested rights




Spring 2006              Marbury                6
Does Marbury have a vested legal right?
 Steps involved in becoming an officer of the US
1st, The nomination.                              Mandatory or
                                                  discretionary?
         Art. II, § 2: The President “shall
          nominate … ambassadors, other public
          ministers and consuls, judges of the
          supreme court, and all other officers of the
          United States”
2d. The appointment.
         Art. II, § 2: The President “by and with
          the advice and consent of the senate, shall
          appoint [the aforesaid]”     Mandatory or
                                       discretionary?
Spring 2006                Marbury                         7
Does Marbury have a vested legal right?
3d. The commission.
     Art. II, § 3: The President “shall take care

      that the laws be faithfully executed, and
      shall commission all the officers of the
      United States.”
                      Mandatory or
    Commission …      discretionary?

         Affix the Seal of the US
         Delivery
    Since all (discretionary) steps are complete,
    Marbury’s right has vested.
         Commissioning is a mandatory (or ministerial) act
Spring 2006                   Marbury                         8
Questions asked by S.Ct.
1. Has the applicant a right to the
       commission he demanded? YES
2. If he has a right, and that right has
       been violated, do the laws of his
       country afford him a remedy?




Spring 2006            Marbury             9
Right vs. Remedy
    Rights without remedies
         Mere promises
    Rights with non-legal remedies
         Political remedies
    Rights with legal remedies
         Remedies specified by positive law
         Unspecified remedies
           Courts use their common law powers to fashion
              remedies

Spring 2006                 Marbury                    10
A remedy for Marbury?
    As a general matter, our system of law
    provides remedies for violations of rights
    Is the general rule defeated in this case?
         This is not a suit against the President (or
          aides) in his political capacity
         Rather, one demanding he perform a
          ministerial act.
    Suits enforcing political rights are only
    politically examinable
    Legal rights can be enforced by courts
Spring 2006                Marbury                       11
Questions asked by S.Ct.
1. Has the applicant a right to the
   commission he demanded?
2. If he has a right, and that right has
   been violated, do the laws of his
   country afford him a remedy?
3. If they do afford him a remedy, is it
       mandamus issuing from this court?



Spring 2006           Marbury              12
Is mandamus by SC the right remedy
    Nature of Mandamus
    Power of the S.Ct to issue Mandamus




Spring 2006        Marbury                13
Nature of Mandamus
    Writ issued to gov’t official commanding
    her to perform a particular act.
    Can Mandamus be directed to a high
    government official?
    Can the president be sued?
    Non Sub Homine, Sed Sub Deo Et Lege




Spring 2006          Marbury              14
Can the SCt issue mandamus?
    Why did Marbury sue directly in SCt?
    Does SCt have power (jurisdiction) to act?
         why do we care?




Spring 2006                 Marbury       15
SCt Jdx specified by Congress
              Judiciary Act of 1789, § 13
“The Supreme Court shall also have
appellate jurisdiction from the circuit courts
and courts of the several states, in the cases
herein after specially provided for ... And
shall have power to issue … writs of
mandamus, in cases warranted by the
principles and usages of law, to any court
appointed, or persons holding office,
under the authority of the United States.”

Spring 2006              Marbury            16
Authority of Congress over jdx
    Isn’t this case authorized by the Act?
    Source of congress’ power
         Art I, § 8, cl. 9
          “to constitute Tribunals inferior to the
          SCt”
         Art. III, § 1
          “The judicial Power … shall be vested in
          … such inferior Courts as the Congress
          may from time to time ordain and
          establish.”
Spring 2006                   Marbury            17
Authority of Congress over jdx
         Art. III, § 2, cl. 2

“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 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.”
Spring 2006                  Marbury     18
Authority of Congress over jdx
“Supreme Court shall have appellate jurisdiction
… with such exceptions and under such
regulations as the Congress shall make”
    If congress has authority under the
    constitution to specify the S.Ct’s appellate
    jdx and so specified it to include issuance
    of mandamus to federal officers, why is
    there a problem?
    Did congress exceed its authority?

Spring 2006          Marbury                 19
SCt Jdx specified by Congress
              Judiciary Act of 1789, § 13
“The Supreme Court shall also have
appellate jurisdiction from the circuit courts
and courts of the several states, in the cases
herein after specially provided for ... And
shall have power to issue … writs of
mandamus, in cases warranted by the
principles and usages of law, to any court
appointed, or persons holding office,
under the authority of the United States.”

Spring 2006              Marbury            20
Does §13 conflict with Art. III?
         Art. III                       Section 13
    Original Jdx                      Appellate Jdx
         Ambassadors, public            from the circuit
          ministers, consuls,             courts and courts of
          States                          the several states
    Appellate Jdx                     General Jdx
         All other cases                power to issue …
                                          writs of mandamus

     Does the constitution authorize the S.Ct. to
     directly issue mandamus to federal officers?

Spring 2006                 Marbury                         21
Is Mandamus original or appellate?
    If appellate, certainly authorized both by
    Art. III and by Section 13
    If original, then authorized by Art. III if
         Secretary of State is a “public minister” or if
         Congress may enlarge the enumerated
          categories of original jdx
    Who decides these questions? Who
    interprets the constitution?


Spring 2006                 Marbury                    22
Who interprets the constitution?
      Option 1: Each branch interprets for itself
         Has congress interpreted Art. III for itself?
      Option 2: One branch has ultimate inter-
      pretive authority
     If so, which branch?
     If so, is its interpre-
      tation binding on
      other branches? On
      the rest of the
      country?
Spring 2006                Marbury                    23
Why even interpret the const?
    What does the constitution do?
         Create and organize the gov't
          "It may either stop here;
         Operate as “law”
          or establish certain limits not to be
          transcended by those departments"
    How do we know that the Constitution
    imposes limits on government power?
         Is this the nature of “written” constitutions?

Spring 2006                  Marbury                  24
Does const. trump ordinary laws?
    If not, congress may expand its own
    power, thereby creating unlimited gov't
    "certainly all those who have framed written constitutions
                          first               Does this mean
    contemplate .. That an act of the legislature repugnant to
                       mentioned            "consistent with"?
    the constitution is void."

    See also Art. IV, § 2
“This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof,
and all Treaties made, or which shall be made,
under the Authority of the United States, shall be
the supreme Law of the Land"
Spring 2006               Marbury                       25
Does const. trump ordinary laws?
    See also Art. VI, § 3
“The Senators and Representatives before
mentioned, and the Members of the several
State Legislatures, and all executive and
judicial Officers, both of the United States and
the several States, shall be bound by Oath or
Affirmation, to support this Constitution“

         If the branches disagree on the meaning of
         the constitution, have the members of one
         branch violated their oath of office?

Spring 2006              Marbury                 26
So what if §13 conflicts with Art III?
    What happens if a law passed by congress
    conflicts with the text of the constitution?
    A court must give operative effect to either
    the const. or the ordinary law. Which?




Spring 2006          Marbury               27
Who interprets the constitution?
    "It is emphatically the province and duty of
    the judicial dep’t to say what the law is."
    In deciding cases, a “court must determine
    which of these conflicting rules governs"
    It must look into the constitution
         "This is of the very essence of judicial duty"




Spring 2006               Marbury                 28
Conclusion

 "Thus, the particular phraseology of the
 constitution of the United States
 confirms and strengthens the principle,
 supposed to be essential to all written
 constitutions, that a law repugnant to the
 constitution is void; and that courts, as
 well as other departments, are bound by
 that instrument."

Spring 2006        Marbury               29
But wait a minute
    Even accepting the S.Ct's authority to
    interpret the const. and declare laws void,
         Did it have to exercise that authority here?
         Could the Judiciary Act have been interpreted
          so as to avoid conflict with Art. III?
“The Supreme Court shall also have appellate
jurisdiction ... And shall have power to issue …
writs of mandamus, in cases warranted by the
principles and usages of law, to any court
appointed, or persons holding office, under the
authority of the United States.”
Spring 2006               Marbury                  30
Principles of Marbury
    Judicial Review
         Constitution is supreme over ordinary laws
         Courts are ultimate arbiters of const'l meaning
         Courts can declare acts of executive and
          legislative departments void (unconstitutional)
    Political Questions
    Vested Rights and Legal Remedies
    Art. III is a ceiling on federal jurisdiction
    S.Ct. is a political organ
Spring 2006                Marbury                  31
                Marbury
A useful site for obtaining more
information on the players in the case is at
John Marshall Law School
 http://www.jmu.edu/madison/marbury/index.htm




Spring 2006         Marbury                32
Spring 2006   Marbury   33

								
To top