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Marbury2.ds

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									          Today’s Lecture:




   Marbury v. Madison and Judicial
        Review (continued)




Session                      Topic(s)


 12
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Lecture Organization for Topic 3:

  Last Time                         This Time

The Judiciary Act of 1789           The logic of Marbury
 The Constitution and               Arguments for Judicial
 Political Environment                    Review
Midnight Judges                      Arguments against
Marbury v. Madison                    Judicial Review

                                        Judge Gibson
                 Marbury v. Madison


 The Trial
-- The Supreme Court conducts a trial in the case:

 The Trial --

 Two government employees (clerks) were subpoenaed into Court
 to give testimony. They actually conducted a trial. Madison refused
 to appear in front of the Court and refused to have himself
 represented.
                  Marbury v. Madison


The Constitution Says
-- Article III of the Constitution addresses the Court’s
jurisdiction and power. …
Jurisdiction of the Court --


“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”
                       “Original Jurisdiction”

                         1. This case does not involve original
                             jurisdiction. The parties are Marbury
                             and Madison, not Marbury v. the
Jurisdiction of the Court -- State of Virginia. (Also, the 11th
                             Amendment does not allow the Court
                             to hear cases between a state and a
                             citizen)
“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”
 “With such exceptions”

 1. Congress isn’t trying
Jurisdiction of the Court -- to take away
     appellate jurisdiction here; it is
     (apparently) trying to give the Court
“In all Cases affecting Ambassadors, in
     the ability to issue a trial remedy other public Ministers and
     any and those in which a State
Consuls, ordinary, plain Jane lawsuit 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”
                  Marbury v. Madison


 Upon Further Review
-- Marshall’s decision basically says that Marbury is in the
wrong Court
-- It not only says that, it says that even if the Congress had not
yet created trial courts, Marbury is still in the wrong court
-- Marbury therefore loses based upon a legality
               Marbury v. Madison


The Decision




                          Question:
                  Is Marshall right? Was the
                      decision correct?
Everyone
 Votes!

           1. Yes, the decision IS    28
              correct
           2. No, the decision is NOT  4
              correct
               Marbury v. Madison


The Decision




                                    Question:
       Answer:
                            What does he base his
The historic syllogism     decision upon? How does
                                 he come to his
                                  conclusion?
                Hercules and the Syllogism



1. The Constitution is supreme law;    Starting point

2. It is more important than a mere statute; Key premise!

3. Courts are asked to interpret laws; Functional Logic

4. We can’t do this if we ignore the supreme law.
                                              True by Logic

5. Therefore, we are the ones who interpret the Constitution.
                                   Tremendous Conclusion
               Marbury v. Madison


What about Politics?




                                     Question:
                                Was Marshall able to
                               rule the other way if he
                                       wanted?
Q-Live



      Was it
     correct?   6
                0
                Marbury v. Madison


 What about Politics?
-- Obviously, Jefferson would not have enforced the ruling were
it otherwise
-- Obviously, the decision strengthened federal governance and
federal institutions. In a way, Marshall chose to lose a battle in
order to win a war.

                                         Question:
                                 Did Marshall’s politics or
                               ideology actually decide the
                                          case?
1.   Yes, ideology caused the     22
     decision. It was politics.
2.   No, ideology did NOT         12
     cause the decision. It was
     above that.
                 Marbury v. Madison


 What about Politics?

-- so who was the real author of the decision: Machiavelli or
Solomon?
Possible idea: it is possible for both “correctness”
(epistemology) and “politics” to go in the same direction ….
Time
                  Marbury v. Madison


  The Politics of Law
 -- something helpful:
             Politics?            Justification?




             Politics?            Justification?
             Marbury v. Madison


What about Hamilton?




                            Two Questions:
                         (a) Is judging special?
                         (b) should you fear the
                                   Court?
                 Judicial Review in the
                     New Republic

 The Ghost Debate
-- There is a strange strand of scholarship that has emerged in
the academy. I call it “the Ghost Debate”
-- People criticize Marbury as being “a power grab”
-- This is terribly misguided

     “Judicial Supremacy,” not judicial review
              Judicial Review in the
                  New Republic

Arguments in Favor of Judicial Review

• English Common Law -- Bonham’s Case
    -- in England, before the Glorious Revolution
    -- 1610. (Parliament not sovereign yet!)
    -- Declared an act of parliament against “right reason”
    (against the common law)
    (Compare how this is different from America. It’s not the
    common-law, it is the constitution. Fundamental law has
    been enacted, legally)
              Judicial Review in the
                  New Republic

Arguments in Favor of Judicial Review

• Otis & the Writs of Assistance Cases in Colonial America
     -- go into the General Court (the Senate) and argue that
    the parliamentary statute is against the English
    constitution
                Judicial Review in the
                    New Republic

Arguments in Favor of Judicial Review

• Historical facts:
    --1776-1787 – 8 of 13 colonies specifically put judicial
    review in their constitutions.
    -- A total of 8 acts of state legislatures were struck down.
    --More than half of the delegates approved of the practice.
              Judicial Review in the
                  New Republic

Arguments in Favor of Judicial Review

• This was not even the first case in American legal history to
use the power of judicial review – the first case was:
  Hylton v. United States (1796)

    • Washington administration
    • Federalists had taxed carriages (1793)
    • Jeffersonians argued in Court that the tax was
    unconstitutional
    • The Court decided it was not.
    (mention the politics involved.)
              Judicial Review in the
                  New Republic

Arguments in Favor of Judicial Review

• This was not even the first case in American legal history to
use the power of judicial review – the first case was:
      Calder v. Bull (1798)

    • ruled that Connecticut did not violate the ex-post facto
    clause of the Constitution
               Judicial Review in the
                   New Republic

Arguments in Favor of Judicial Review

• The strongest argument, however, is structural -- a
parliamentary system was rejected at the Constitution.
    -- the statute cannot be the highest form of legality
    -- the Congress doesn’t exercise the judicial function
       (hence, it cannot “judge” legality; that is another
       branch’s job)
       … so long as what it means to be “constitutional” is to
       go to Court and get a legal opinion.
-- Government functions should be distinct




                       The King
                           Leg
                           Jud
                          Exec
                  (absolute monarchy)




 Order,
 Decree                                      Precedent
                           Statute
  Enforcing                                    Judging
                          Legislating
   Constitutional
   Parliamentary System
                                                           Center of all legitimacy

                         Legislature



                                                           PRESIDENT
            JUDICIARY
                                                            • “clerk”
                                                            • Discharges statutory law

                                                            Cabinet
              Bureaus




1/18/2007               (C) Copyright Sean Wilson. 2007.                           29
                 Judicial Review in the
                     New Republic

Arguments in Favor of Judicial Review
Hamilton in 78 – “It is a Constitutional System”
 • Alexander Hamilton in Federalist #78
…Hamilton in 78 – “uh, to suppose, that the courts were designed
    It is far more rational read the document (duh)”
to … keep the [legislature] … within the limits assigned to their
  If it be said that the of the laws is the proper and peculiar
authority. The interpretation legislative body are themselves the
  constitutional courts. of their own powers, and must be
province of the judges A constitution is, in fact, and that the
regarded by the judges, as a fundamental law. It therefore belongs
  construction they put upon them is conclusive upon the other
    them to ascertain be answered, that this the meaning of any
todepartments, it mayits meaning, as well ascannot be the natural
  presumption, where it from to legislative body. there should
particular act proceedingis not the be collected fromIfany particular
  provisions in an irreconcilable
happen to be the Constitution. variance between the two, that
which has the superior obligation and validity ought, of course, to
be preferred; or, in other words, the Constitution ought to be
preferred to the statute, the intention of the people to the intention
of their agents.
              Judicial Review in the
                  New Republic

Arguments Against Judicial Review

 • Whenever the power was exercised, the people complained
           New institutions!
 •Council of Revision was rejected by the framers

             confused –
             Veto power is not the same as the power
             to read legal words
             Council of Revision was a confused way to
             pluralize an executive power (King’s veto)
               Judicial Review in the
                   New Republic

Arguments Against Judicial Review

 • Not written in the Constitution   Confused argument




                                       Questions:
                                Is this True? Could one
                              argue that it is written in the
                                      Constitution?
          One could say it is written in the Constitution
Jurisdiction of the Court --


“The judicial power of the United States, shall be vested in one
Supreme Court, and in such inferior courts as the Congress
may from time to time ordain and establish.”
               Judicial Review in the
                   New Republic

Arguments Against Judicial Review

 • Not written in the Constitution   Confused argument

 -- It’s not written for any other branch, either. It doesn’t say
 that Congress or the Executive has this power. So who would
 have it then if not a Court?
               Judicial Review in the
                   New Republic

Arguments Against Judicial Review

 “argument from Machiavelli”

  -- Marshall strategically invented a ghost issue
  -- If he had really thought the parties were in the wrong
  court, he should have dismissed the case for want of
  jurisdiction, having nothing to declare unconstitutional
     (putting the blame on the parties, not the Congress)

          historically problematic because of the way
                   legal culture was behaving
Time            Judicial Review in the
                    New Republic

 Arguments Against Judicial Review

   “original Congress argument”

   -- The first Congress was composed to a large extent of the
   same people who were delegates to the constitutional
   convention
   -- They would know what is constitutional or not.
Time             Judicial Review in the
                     New Republic

 Arguments Against Judicial Review

   “original Congress argument”

    -- The first Congress was composed to a large extent of the
    same people who were delegates to the constitutional
    convention
 1. The fallacy of idolatry.
    -- They would know what is constitutional or not.

 2. Even if they would have thought a trial in the Court was
 constitutional, they would be wrong no matter if they were
 delegates to the convention (text v. intention)
          Cultural Confusion Surrounding the
         Accident of American Constitutionalism

 Eakin v. Raub
 Gibson’s Dissent
-- Not a full case, only a dissent by Judge Gibson
-- Gibson served on the PA supreme court 37 years

                               Question:
                           What does judge
                          Gibson’s dissenting
                            opinion argue?
           Cultural Confusion Surrounding the
          Accident of American Constitutionalism

 Eakin v. Raub
                              Parliamentary Logic
 Gibson’s Dissent
-- If a statute passes the procedural requirements of the
Constitution (elections, terms, etc.), that anything the Congress
does should be considered “constitutional”
-- legislature is the “master of its domain,” which is legislating
(even cites Blackstone, an English theorist, for the proposition
that legislative power and sovereignty are one)
                                                 Question:
                                           What’s the problem
                                          with citing Blackstone
                                            for this purpose?
           Cultural Confusion Surrounding the
          Accident of American Constitutionalism

 Eakin v. Raub
                              Parliamentary Logic
 Gibson’s Dissent
-- If a statute passes the procedural requirements of the
Constitution (elections, terms, etc.), that anything the Congress
does should be considered “constitutional”
 Two replies:
-- legislature is the “master of its domain,” which is legislating
 • Constitution did not create a parliamentary system.
(even cites Blackstone, an English theorist, for the proposition
that legislative power and sovereignty are one) statutory
 • the English had equated sovereignty with the
power; America’s distinct contribution was to make
sovereignty and legislation no longer synonymous
END SESSION

								
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