Marbury v. Madison (1803):
Outline of Marshall’s Argument
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Marbury has a right to the commission because all the legally discretionary
steps in his appointment have been accomplished and the appointment is
complete. Delivery of the commission by the Secretary of State is not
discretionary; it is his duty under the law.
Where there is a right, there is a remedy and that remedy is a writ of
mandamus.
But the Supreme Court is powerless to grant it.
The judicial power of the Supreme Court is either original or it is appellate,
and only the latter is subject to exceptions and regulation by Congress.
Therefore, in so far as the Judiciary Act of 1789 alters the Supreme Court's
original jurisdiction, it is unconstitutional.
To allow the Congress to override the Constitution would be to undo the very
essence of limited government. It is the province and duty of the Judicial
Department to say what the law is, and when statute and constitution conflict
we must reject the statute and enforce the Constitution.
The Judiciary & the Welfare State
1900-1937
The Foreign Policy Exception
Key Cases
• MISSOURI V. HOLLAND (1920): Article VI establishes the
supremacy of treaties over state law, even when those treaties require
exercise powers not expressly granted to the federal government. If
the treaty is valid, the implementing statute is valid as necessary and
proper.
• U.S. V. CURTISS-WRIGHT EXPORT CORP. (1936): the view that
the federal government has only enumerated powers “is categorically
true only in respect of our internal affairs.” Courts describes the
“plenary and exclusive power of the president as the sole organ of the
federal government in the field of international relations.”
• U.S. V. BELMONT (1937) : executive agreements are not treaties
requiring Senate approval, but they have the force of treaties
domestically.
The Judiciary & the Welfare State
1900-1942
Economic Regulation
MEMBERSHIP OF THE U.S. SUPREME COURT
1932-1936
Conservative*
Van DeVanter (R) 19101937
Swing
Hughes, C.J. (R) 19301941
McReynolds (D) 1914-1940 Roberts (R) 1930-1945
Liberal
Brandeis (R) 1916-1939
Stone (R) 1925-1941
Cardozo (D) 1932-1938
Sutherland (R) 1922-1938
Butler (D) 1922-1939
*The fearsome foursome of substantive due process–a remarkably consistent voting
bloc:
Willis Van DeVanter (Republican, Wyoming, Chair of Republican National
Committee, Taft)
James C. McReynolds (Democrat, Tennessee, U.S. Attorney General, Wilson)
George Sutherland (Republican, Utah, state senator, Harding)
Pierce Butler (Democrat, Minnesota, railroad attorney, Harding)
THE SUPREME COURT'S RESPONSE TO ECONOMIC
REGULATIONBEFORE AND AFTER THE SWITCH IN TIME
THAT SAVED NINE
[Cases won by the government, i.e., where regulation was sustained, are printed in bold blue type.]
NATIONAL REGULATION
STATE REGULATION
Slaughterhouse Cases (1873)
Munn v. Illinois (1877)
pre-switch
U.S. v. E.C. Knight (1895)
Allgeyer v. Louisiana (1897)
Champion v. Ames (1903)
McCray v. U.S. (1904)
Jacobson v. Massachusetts (1905)
Lochner v. New York (1905)
Muller v. Oregon (1908)
Shreveport Rate Case (1914)
Hammer v. Dagenhart (1918)
Stafford v. Wallace (1922)
Bailey v. Drexel Furniture (1922)
Burns Baking Company v. Bryan (1924)
Home Building &Loan v. Blaisdell (1934)
Carter v. Carter Coal (1936)
U.S. v. Butler (1936)
post-switch
Steward Machine Co. v. Davis (1937)
N.L.R.B. v. Jones & Laughlin (1937)
U.S. v. Darby (1941)
Wickard v. Filburn (1942)
West Coast Hotel v. Parrish (1937)
Edwards v. California (1941) [state lost, but strong
view of national commerce power prevailed]