Constitutional Law
Class 2 January 9, 2008
JUDICIAL REVIEW
Spring 2008
Professor Fischer
Office: Room 412
202-319-5568
fischerATlaw.edu
The FACTS of Marbury v. Madison:
William Marbury
The FACTS: John Adams
The FACTS: Thomas Jefferson
The FACTS: John Marshall
The FACTS: James Madison
HOLDING
• What is the holding of Marbury v.
Madison?
HOLDING
• What is the holding of Marbury v. Madison?
The Court ruled against Marbury and held
that it could not issue mandamus to him.
The Court declared that it lacked
jurisdiction to grant mandamus on its
original jurisdiction. The Court held that
the statute that gave it original jurisdiction
was unconstitutional.
REASONING: 4 QUESTIONS
• 1. Should the Court have reached the
question of the constitutionality of the
Judiciary Act of 1789?
• 2. When may the Court review executive
conduct?
• 3. Was the Judiciary Act of 1789
unconstitutional?
• 4. Should the judiciary have authority to
declare statutes unconstitutional?
REASONING: 4 QUESTIONS
1. Should the Court have reached the question
of the constitutionality of the Judiciary Act of
1789?
Section 13 of the Judiciary Act of
1789
 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 . . to
any . . . . persons holding office, under the
authority of the United States.”
REASONING: 4 QUESTIONS
• 2. When may the Court review executive
conduct?
REASONING: 4 QUESTIONS
• 3. Was the Judiciary Act of 1789
unconstitutional?
Article III § 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.
REASONING: 4 QUESTIONS
• 4. Should the judiciary have authority to
declare statutes unconstitutional?
AUTHORITY
• John Marshall in Marbury stated: “it is
emphatically the province and duty of the
judicial department to say what the law is.”
Section 13 of the Judiciary Act of
1789
 Gave the U.S. Supreme Court “power to
issue . . . writs of mandamus . . to any . . . .
persons holding office, under the authority
of the United States.”
REVIEW OF STATE COURTS
• Martin v. Hunter’s Lessee (1816)
• Cohens v. Virginia (1821)
THE ENDURING IMPORTANCE
OF MARBURY
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The Constitution is regulatory. It is not aspirational
like the Magna Carta or Declaration of Independence
Congress can’t increase the jurisdiction of federal
courts
Court can review executive conduct to determine its
constitutionality
Court can review legislative actions for their
constitutionality.
Marbury arguably leaves open the question of which
branch, if any, is the authoritative interpreter of the
Constitution.