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Today’s Lecture:
The Greatest Case in the History of
American Jurisprudence
1. Marbury v. Madison
2. Judicial Review
Lecture Organization:
• Class Announcements
• Judiciary Act of 1789
• Midnight Judges
• Marbury v. Madison
• Judicial Review in the New Republic
Time
Time
Class Announcements
Next Quiz
-- Postponed Until This Friday
-- Deadline to submit questions is today
-- Expect a large quiz; it is the last one before your exam
Next Cases
-- Eakin v. Raub; Martin v. Hunter’s Lessee
Questions?
(can only brief one)
(Eakin is only a dissent; just summarize it)
The Judiciary Act of 1789
Washington Administration
-- Judiciary Act of 1789 created lower levels of the federal
judiciary
(Spider’s legs)
Diagram …
Today’s Court
System
Supreme Court
Discretionary
Review
Final Appeal
“Circuit Courts”
Automatic Right of
First Appeal
Appeal
District Courts
Specialized Courts
Bankruptcy Court
4/13/2015
Magistrate Courts
Copyright, Sean Wilson. 2007
Felony Trials
“General
Trial
Court”
Bigger Civil
Cases
Misdemeanors
“Petty civil
Courts”
Smaller
cases
Criminal-procedural
Issues
6
1789 Act
Supreme Court
Justices are sitting in
both trial and
appellate capacity!
Supreme Court
“Circuit Courts”
No Circuit Judges yet;
Major Trials
Justices are “riding
circuit”
District Courts
Petty crimes
“Petty/Specialized
Minor civil cases
Courts”
Question:
Where is a felony case
tried?
4/13/2015
Appeals
Copyright, Sean Wilson. 2007
Admiralty cases
Forfeiture cases
7
The Judiciary Act of 1789
Debate and controversy
-- The Act created much debate in Congress
-- The institution looked like aristocratic or monarchical.
Compare:
• Palantine Court
• General Court
8 Lord proprietors
Supreme Court and a Senate
-- Historically, courts were creatures of the King. Royal
Governors had control over appointing court members in many
colonies
-- Now, you have a Supreme Court that is planting roots in
Virginia and other distant places, claiming to be judges of “law”
The Judiciary Act of 1789
Basic Grants of Jurisdiction
-- The Act created courts with specific jurisdiction:
• Circuit Courts had appellate jurisdiction over district
courts; trial jurisdiction in diversity cases and more
important criminal cases etc
• Supreme Court had appellate jurisdiction in all major civil
cases, in appeals from state courts involving federal
questions, etc.
Time
The Judiciary Act of 1789
Writs of Mandamus
-- Semantics of “mandamus:”
• man = “The hand.” (emancipate; manual labor)
• Literally, “Move the hand”
-- order directing someone to do something
(examples.)
-- similar kinds of relief: an injunction, writ of prohibition, a
restraining order
The Midnight Judges
The Election of 1800
-- Jefferson ascends
• America’s first political realignment
• Agrarian ideology becomes hegemonic
• Federalist party will eventually die out
(The days of governance by federalist elites like
Washington, Hamilton & Adams are gone)
-- First election in American history where the party in power
hands over power to its opposition (very important for
democracy)
The Midnight Judges
Judiciary Act of 1801
History
-- Defeated in the other two organs of government,
Federalists, on the way out of office, try and retreat into the
Judicial Branch
-- The new administration takes power on March 4th, 1801
-- In January, they pass the Judiciary Act of 1801
-- The stated purpose of the bill was to “relieve justices from
circuit riding”
The Midnight Judges
Judiciary Act of 1801
What it does
-- Reduced the number of justices from 6 to 5, but only
after the next vacancy, so Jefferson would not have an
appointment.
-- Added 26 judges to the lower federal courts (circuit and
district courts), whose dockets were becoming increasingly
crowded
-- Added 45 Justices of the Peace in Washington D.C.!
(D.C. had just been created).
(didn’t need this many; Federalists were trying to reward
and protect their people).
The Midnight Judges
Judiciary Act of 1801
Appointment Procedure
-- Adams had to nominate, Senate confirm
-- The last step is the placing of the seal on the
commissions by the secretary of state, and then the
delivery
The Midnight Judges
Judiciary Act of 1801
The Delay
-- Adams and the Senate took so long getting the people
confirmed that a large stack of commissions did not reach
the secretary of state’s office until late on March 3rd, hours
before Jefferson takes office
John Marshall is the Secretary of State; but he is also a
Supreme Court justice
The Midnight Judges
Judiciary Act of 1801
Marshall’s Dual Role
-- Chief Justice Oliver Ellsworth had resigned in October
-- Adams appointed John Jay to replace him, but Jay
declined (he returned the commission after 5 days)
-- So Adams is placed under pressure to nominate William
Patterson of New Jersey.
-- Patterson wanted the job, but he was an ally of Hamilton,
who Adams hated, so he was out.
The Midnight Judges
Judiciary Act of 1801
Marshall’s Dual Role
-- He then picked John Marshall of Virginia, who was
confirmed in January of 1801 without dissent.
-- Marshall was already Secretary of State and didn’t feel
the need to resign in the last two months
(Side note: Marshall had served with Washington at Valley
Forge)
The Midnight Judges
Jefferson Takes Over
-- The deadline comes, and Jefferson takes over
(The story of Jefferson’s watch)
Jefferson’s watch -Jefferson's attorney general came into Marshall's office an hour before
the deadline had expired, holding a watch, and told Marshall, who was
stamping commissions, that "Mr. Marshall, your term has expired."
Marshall then got up from his desk and left without the remainder of
the commissions being stamped. The watch that the attorney general
is said to have in his hand was Jefferson's watch.
[Note: historians are uncertain of this]
The Midnight Judges
Jefferson Takes Over
-- 42 commissions remain sealed but not delivered when
Jefferson assumes power.
-- Jefferson appoints Madison as Secretary of State
-- He tells Madison to delver 25 of the commissions, leaving
17 judges unable to take their offices.
Imagery
-- imagine a supreme court justice going through the
confirmation hearing, winning, and then the executive
branch refusing to forwarded paperwork
The Midnight Judges
Jefferson Takes Over
-- Of the 17 that did not receive their commissions, only 4,
including William Marbury, took their claims to the Supreme
Court.
-- They sought a “Writ of Mandamus” to force the hand of
Jefferson (Make him turn over the commissions).
The Midnight Judges
Jefferson Strikes Back
-- His party alters the date of the Court’s term
in effect, making the Court unable to hear the case until
1803.
-- They pass the Judiciary Act of 1802.
-- rescinds the 1801 Act. (riding circuit again).
-- Madison doesn’t even show up for the Court hearing
CUT
Marbury v. Madison
Important Questions
-- Having just set for the facts, it is time for some important
questions:
Question:
Question:
Question:
Let’s
I want
geta an
Question:
Howsay
does
onetoget
injunction
or aLet’s
restraining
Who should
win
this
Mandamus?
saycase
I
What(not
is the
central
issue
order.
are
basically
who
does,
who the
wantThese
to get
one
of these
in the
case?
same
kind
of
Howto
do I
SHOULD)?
things, whatthing.
do I have
get this?
do I have to
do,What
legally?
do?
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. …
The Constitution --
“With such exceptions”“Original Jurisdiction”
“The judicial Power of the United States shall be vested in one
1. Congress isn’t trying
to take
1. This
caseaway
does not involve original
supreme Court, and in such inferior Courts as the Congress may
appellate jurisdiction jurisdiction.
here; it The
is parties are Marbury
from time to time ordain and establish.
establish.”…”
(apparently) trying to give
Court not Marbury v. the
and the
Madison,
the ability to issue a trial
in
Stateremedy
of Virginia.
(Also, the 11th
“The judicial power shall extend to all Cases, in Law and Equity,
any ordinary, Plain Jane
lawsuit
Amendment
does not allow the Court
arising under this Constitution, the Laws of the United States, and
to hear cases between a state and a
Treaties made, or which shall be made, under their Authority.
Authority.”...”
citizen)
“In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme
Court shall
shall have
have original
original Jurisdiction.
Jurisdiction. InInall
allthe
the other
other Cases
Cases before
mentioned, the
the supreme
supreme Court
Court shall
shallhave
haveappellate
appellateJurisdiction,
Jurisdiction,
both as to
to Law
Law and
and Fact,
Fact,with
with such
such Exceptions,
Exceptions, and
and under such
Regulations as the Congress shall make”
Marbury v. Madison
Marshall’s solution
-- After considering the case, Marshall reaches his decision
Question:
Question:
Answer:
What does
does
he base
decide?
What
he
his
decision
upon?syllogism
How does
The historic
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;
3. Courts are asked to interpret laws;
Key premise!
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
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
Question:
Question:
When you make this judgment,
Is Marshall right? Was the
what
doescorrect?
you mind “look
decision
upon?” What are you consulting
to say it?
Marbury v. Madison
The Politics of Law
-- 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.
-- so who was the author of the decision – Machiavelli or
Question:
Solomon?
Question:
Question:
Is it possible for a court
Was
Did
Marshall
Marshall’s
able
politics
to rule
orthe
decision
to be
“correct”
and
ideology
other
way
decide
if he
the
wanted?
case?
for
politics
or
ideology
to still
cause it? If so, who cares?
Time
Marbury v. Madison
The Politics of Law
-- something helpful:
Politics?
Justification?
Politics?
Justification?
Judicial Review in the
New Republic
The Ghost Debate
-- We want to examine the historical question: was judicial
review part of the American Constitutional program?
-- I think the evidence is quite strong in favor of Marbury being
correct, but there are a strange group of bedfellows who tend to
resist the conclusion
• Extreme right wingers
People who think far too much of Jefferson
• Left Wing Law Professors
Want more left-wing policies
-- The idea is that the Court is a conservative institution. If
judicial
reviewa
someone“Judicial
else hadSupremacy,”
this power –-not
e.g.,
Congress,
bureaucracy –- it might be easier to obtain certain kinds of
social policy
Judicial Review in the
New Republic
Arguments in Favor of Judicial Review
• English Common Law -- Bonham’s Case
• Otis & the Writs of Assistance Cases in Colonial America
• 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.
(Historically factual)
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
• 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)
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
It is far more
suppose,
that the courts
in 78rational
– “uh, to
read
the document
(duh)”were designed
to … keep the [legislature] … within the limits assigned to their
authority.
interpretation
of the lawsbody
is theare
proper
and peculiar
If it beThe
said
that the legislative
themselves
the
province
of the judges
courts. A
in fact, and
and that
must the
be
constitutional
of constitution
their own is,powers,
regarded
by thethey
judges,
a fundamental
law. It therefore
belongs
construction
put as
upon
them is conclusive
upon the
other
todepartments,
them to ascertain
wellthis
ascannot
the meaning
of any
it mayits
bemeaning,
answered,asthat
be the natural
particular
act proceeding
legislative
there
should
presumption,
where it isfrom
not the
to be
collectedbody.
fromIfany
particular
happen
to be
an Constitution.
irreconcilable variance between the two, that
provisions
in the
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
• Bonham Itself an aberration and/or rarely undertaken
• Whenever the power was exercised, the people
complained
New institutions!
• Council of Revision was rejected by the framers
• It isn’t written
in the constitution
confused
–
Veto Problematic
power is not –the
same
power
who
hasas
thethe
power
to read
legal
words
then,
and
where is that written?
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
“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)
Judicial Review in the
A nice try, but:
New Republic
1. American legal culture in in 1800 did not understand it this
Arguments
Review
way. PeopleAgainst
did notJudicial
say, “Hey
Marbury’s stupid attorney is in
the
wrong Court.
Everyone knows that you have to file this in
“argument
from Machiavelli”
the trial court first. Wonder who taught him how to practice
law?”
-- Marshall strategically invented a ghost issue
If hekeep
had really
thought
parties were
the wrong
2. --Also
in mind
that the
mandamus
mayin not
have been
court, he in
should
havecourts
dismissed
the casewhy).
for want
of may
authorized
the lower
yet (explain
Marbury
jurisdiction,
havingelse
nothing
unconstitutional
have
had no where
to gototodeclare
seek the
relief. Hence, it was
sincere.
(putting the blame on the parties, not the Congress)
3. Keep in mind that the Court actually held a trial, not merely
oral argument. This shows that American legal culture had
thought that Congress had given this power to the Supreme
Court. No one is saying the trial was a rouge.
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
1. The
fallacy of idolatry.
convention
-- Theyif would
know what
constitutional
2. Even
they would
haveisthought
a trial or
in not.
the Court was
constitutional, they would be wrong no matter if they were
delegates to the convention (text v. intention)
3. Even if they didn’t mean for a trial to be held there, legal
culture sure thought that was a right that could be pursued in
the statute