Allocation of Judicial Power under the Constitution Article III

Marbury v. Madison and the establishment of Judicial Review of Acts of Congress and the Supremacy of the Constitution

1. History

   1. Political struggle between John Adams and the Federalists, and TJ and Repubs

      1. Adams appointed new judges, including several justices of the Peace for DC

      2. Commissions for these justices had been signed by Adams, but not yet delivered (by mistake of Marshall’s bro)

      3. TJ then refused to honor appointments which had not been delivered

      4. Federalists tried to entrench themselves through Marbury and Stuart v. Laird and by all of the last minute commissions. To give themselves lifetime tenure to their allies to lessen their own loss of power. Marshall himself was an actor in this power grab and then was entrusted with the duty of presiding over the judicial challenge of the power grab.

      5. Congress also abolished the Supreme court for two terms – a move that was also improper.

   2. Marshall’s own struggles

      1. Questions of bias and Marshall’s assertion of judicial supremacy

         1. Marshall was Secretary of State under Adams, and was previously entrusted to deliver the commissions to the new circuit court judges. One would have expected Marshall to argue that it was proper, that the actual delivery was only a menial task – the actual legal act was to seal and affirm the commissions.

         2. To allow him to decide his institution’s own power – whether they could decide extent of judicial power to interpret constitution is worrisome – legislature or other branch could better determine this.

         3. Personal relations between Jefferson and Marshall were already poor.

         4. Marshall is not in as much conflict as might be expected – he has an interest in peacemaking, as well as in building power in the judiciary. His commitment to the court transcends his allegiance to the party.

      2. Marshall’s assertion of power

         1. Assertion of judicial supremacy – paragraph 52, “It is emphatically the province and duty of the judicial department to say what the law is.”

         2. Marshall was also worried about what would happen if he gave an order that was not followed – what it would say about his own power. If he had granted the commission to Marbury, TJ most certainly would have ignored it, which would have undermined the court’s power.

      3. Marshall’s relationship with the federalists

         1. How strongly was Marshall interested in aggrandizing power of judiciary vs. how much for power of Federalists?

            1. 
               Marshall was somewhat of a renegade of the Federalists – deviated from the party line on a number of important issues.
               
            2. 
               He was not Adams’ first choice – Jay decided that he didn’t want it b/c circuit court riding was too onerous – confirmation of Marshall took a while b/c he didn’t have full Federalist support, but he got the support of all 15 Senate Republicans.
               
            3. 
               Marshall viewed himself as a consensus choice rather than a strong Federalist party choice.
               

      4. Political reasons behind refusal to grant mandamus

         1. Has to be clean hands

            1. 
               Marshall could have said that equity would not be the correct remedy, b/c the Federalist judges did not have clean hands.
               
            2. 
               Delivery was also not caused by malfeasance, it was caused by haste and last minute power grab – delivering commissions could not be expected and it would be rewarding their shady power grab.
               

         2. Balance of harms – would giving it cause more harms.

            1. 
               Republicans had been voted into power so allowing judges to take power might thwart the will of the people.
               
            2. 
               If you were going to look at political situation in your inquiry – whether men had acted in reliance on sealing of commissions. Had they moved to DC in expectation of the commissions, did they sell property, etc.
               
            3. 
               Balance the hardships – giving effect to politically illegitimate move to people who were not genuinely injured, vs. not carrying out ministerial duties.
               

2. Legal issues

   1. Whether Marbury had a right to commission

      1. Delivery was a mere technicality and all procedures were followed – seal was affixed.

      2. Legally recognized right to the commission attaches at some period before everything is done to bring it about.

      3. In background of British common law, commissions for office were understood as a form of property, like land grants. Anything Marshall that would have said to have destabilized ordinary entitlement to the commission might have also destabilized the land grant system. He could have distinguished the situation by saying political commissions are always subject to the public interest, but he didn’t.

   2. Whether it was Remediable

      1. If there were no courts that had jurisdictions, then there would be no remedy. The essence of civil liberty consists in right of every individual to claim protection of the laws, whenever he receives an injury.

      2. Only the courts are in the position to judge the actions of the executive – one of the big questions under the 11^th amendment. How much does sovereign immunity carry into this?

         1. The Courts could provide remedies when there is a specific duty to a particular person, but not when it is a political matter left up to executive discretion (political question).

         2. The logic is somewhat circular, since the judiciary is adjudging their own extent of power. Because I have declared that there is a vested right to the commission, even though the acts of the executive are generally circular, this question falls through and still has to be answered – whether mandamus is the correct remedy.

   3. Can court supply the remedy of mandamus? Sits in court of equity – where official is ordered to do something.

      1. Is judicial review available?

         1. Judicial review is only appropriate for ministerial acts where executive had a duty to perform, whereas in political acts, where the executive acts at his discretion, judicial review is not appropriate.

            1. 
               “Questions, in their nature political, can never be made in this court...[But where the head of department] is not perceived on what ground the courts of the country are further excused from the duty of giving judgment that right to be done to an injured individual.”
               

      2. Does the court have jurisdiction over the case?

         1. The Judiciary Act of 1789 provided that the Supreme Court would have juris to “issue writs of mandamus to persons holding office under the authority of the US.” Judiciary Act explicitly allowed it.

      3. Does Mandamus on Original Jurisdiction Violate Article III?

         1. Section 13 of Judiciary Act at odds with constitution

            1. 
               Article III enumerates original juris (only affecting Ambassadors, other public ministers, and consuls, and those in which a state shall be party). If Congress could expand original juris, then the enumerated list would be mere surplusage, entirely w/o meaning.
               
               1. 
                  But what if Constit meant enumerated list only as the minimum – that Congress could grant more?
                  
               2. 
                  Establishes that federal courts are courts of limited jurisdiction, while state courts are courts of general juris.
                  
            2. 
               Issuance of mandamus is not among types of cases as to which original juris is conferred, so Congressional statute was unconstit.
               

      4. Can Supreme Court Declare Laws unconstitutional?

         1. Constitution imposes limits on government powers and these limits are meaningless unless subject to judicial review

         2. Inherent to judicial role to decide the constitutionality of the laws that it applies – it is emphatically the province of the judiciary to say what the law is.

         3. Court’s authority to decide “cases” arising under the constitution implied the power to declare unconstitutional laws conflicting with the basic legal charter.

         4. Judges take an oath of office on grounds to uphold constitution, and the oath would be violated if they didn’t perform judicial review.

         5. Article VI makes Constitution the “Supreme Law of the Land”, so constitution should control over all other laws.

3. Jurisdictional analysis

   1. Types of jurisdiction

      1. Statutory

      2. Constitutional

   2. Appellate jurisdiction

      1. Marbury argued for different meaning of appellate – appearing in Federalist papers and elsewhere – something is appellate anytime a tribunal reaches out to supervise or alter the decision or action taken by another tribunal over which it has authority. Appellate as supervision over lower entities in a body.

      2. We take judicial branch to be its own hierarchy, and it is b/c there are superior and inferior courts there are appeals. If the court had the power to grant mandamus, then not only was that court the superior tribunal to other courts, but it was superior to other inferior bodies outside the court. The case was appellate in its posture by virtue of the remedy being mandamus.

      3. Marshall takes appellate as meaning now and says a case cannot be appellate if it originates in the Supreme court.

   3. Original jurisdiction

      1. Only ambassadors or consuls made original jurisdiction. US public ministers did not fit this category.

         1. Marshall reads this very strictly – only in the context of foreign relations will the court have original jurisdiction.

      2. But the rest of Article III allows for “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.”

         1. Congress could give the court original jurisdiction in cases involving public ministers.

      3. If there is such a thing as exceptions, why can’t Congress move from appellate jurisdiction to original? Why not this exception?

         1. Marshall says that there is a distinction created between original and appellate jurisdiction in Article III and Congress can’t change it.

         2. Would seem to be one of milder exceptions to simply move something from appellate to original. Isn’t less of an intrusion on judicial power to move things around rather than to oust the power of Congress completely? Why doesn’t he instead say that Congress has the power to do this and then examine the statutory question of whether Congress has indeed done this.

      4. Why not read the writs of mandamus language in the same way – just as writ of prohibition is available to courts in maritime and admiralty, why not is it available in cases in which court is exercising appellate jurisdiction. If you want to accord the greatest possible deference to Congress in thinking that it is operating with an understanding of the Constitution.

4. Interpretation of meaning of Marbury

   1. Two interpretations of power of precedent set by Supreme Court.

      1. Narrower interpretation - Retrospective

         1. If there is a real live plaintiff and case is probably in jurisdiction about constitutionality of statute, then Supreme court has responsibility to decide constitutionality of statute, and decision of Supreme court binds the two parties.

         2. The authority of the courts to adjudge the constitution is bounded by the cases that come before the court. If there is an area of discretionary executive action and there is no basis for the court to rule on the case, then the executive would be free to come up with its own interpretation of the constitution that may differ from the Supreme court’s interpretation. The court is deciding the case for the parties, not for all time.

      2. Broader – Prospective – principles enunciated by the court will be applied to future cases

         1. So long as the question comes to the Supreme Court in the form of a justiciable case, so long as the court has the occasion to rule on the question of constitutionality, the Supreme Court has the duty to rule and can rule it unconstitutional, as a result of which the statute will be deemed void and unenforceable in any case. And the constitution will be taken to be called into question.

         2. Once Court gets constitutional issue in its clutches, then court can declare meaning of constitution. If executive branch later has to decide what that interpretation of constitution means, then in the broader view, once the supreme court has spoken, the question has been answered unless court changes its mind. Then noone, constituent with this order, can act otherwise.

   2. Two positions on constitutional role of courts in Marbury and judicial review

      1. Diffuse constitutionalism (also called departmental or popular)

         1. All actors in society, three branches, each individual actor, will have authority and duty to interpret constitution.

         2. Power is not concentrated in Supreme Court, but is diffused out into society.

      2. Judicial Supremacist Position

         1. The other – Supreme Court, through cases which come through it on appeal, gets to say what the constitution is for all time – the one who gets to call the issue and take it out of legitimate controversy.

         2. This goes beyond just interpreting and applying the constitution to the particular case at hand.

5. Evaluation of Marbury

   1. How Marshall could have avoided constitutionality of Judicial Act?

      1. Statute talks about writ of mandamus in terms of appellate juris from circuit courts – could have read it to simply grant Court remedial powers when it has juris.

      2. Statute could also have been read to give Court authority to issue mandamus only where appropriate – in cases properly within its juris.

   2. Did Marbury need to claim judicial supremacy in order to win Marbury?

      1. Pre-Marbury cases argued for departmental constitutional review prior to judicial review. B/c of that, there are certain cases where the court will get directly to the constitutional issues – where legislation directly conflicts with the constitution – and the court gets jurisdiction.

      2. The role that courts played in being willing to embrace prosecution of republican leaders and journalists under Alien & Sedition Act made the courts much less popular. The courts became a target of public discontent.

      3. Marbury was pitching judicial review – precedent does not necessarily carry – courts need to always perform judicial review.

   3. Marshall claims a larger sphere of power for the court to protect the inner core departmental review

      1. First amendment – having a core of political speech that first amendment protects, but going outside that core to protect other kinds of less politically important speech or prohibiting legislation that does not stop speech, but deters speech from taking place.

      2. What the court is worried about is the “chilling effect” – people worrying that they are safe in expressing themselves. But as the categories of protected speech have moved further and further from the core, people’s willingness to protect these has decreased.

      3. If you make the larger claim, then you are putting it out there as a lightning rod – people who may not object to your limited departmental constitution jurisdiction, then people may take you on when you assume larger power and challenge the core of your power.

      4. Marbury and the Court has to go outside the departmental theory and claim more power in order to be sure that they can exercise the smaller power.

   4. Departmental vs. supremacist

      1. Anyone can find isolated language in Marbury for either version of judicial review – departmental or supremacist. Marbury then becomes a shopping mall where all versions of judicial review can be found. Marshall did not need to assert judicial supremacy, since it was in reviewing a specific statute and he would have departmental review.

      2. To try to get everyone to view a more robust and diffuse view of constitutional politics and to raise the point that this view is legitimate.