Marbury and the Judiciary Act of 1789

Here is the relevant text of the Judiciary Act of 1789:

Sec. 13. That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul shall be a party. And the trial of issues in fact in the Supreme Court in all actions at law against citizens of the United States shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states in the cases hereinafter specially provided for and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principle and usages of law, to any courts appointed, or persons holding office under the authority of the United States. . . .

Prof. Rotunda notes that when a statute has two possible constructions, one that would conflict with the Constitution and one which would not, "the Court will...construe the law to avoid the constitutional issue if such a construction is fairly possible."

Since it is possible to construe the reference to writs of mandamus in the Judiciary Act as having nothing to do with adding all mandamus litigation to the Court's original jurisdiction, the Court in Marbury could have interpreted it this way and dismissed for lack of jurisdiction without ever reaching the constitutional issue.

But instead, the Court construed the statute as adding to the Court's original jurisdiction, which, in turn, raised the issue of whether the Judiciary Act was constitutional. (p. 33-34)

Make sure you understand this important move by the Court.

Here is how to think about it:

1. Does the Court have original jurisdiction to issue a writ of mandamus to Madison
2. Court interprets the Judiciary Act as granting original jurisdiction in mandamus cases
3. Thus, the issue becomes whether this is consistent with how the Constitution defines the scope of the Court's original jurisdiction
4. Here is the relevant language from Art. III, Sect.2:

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.

 So is Marbury's suit against Madison within the scope of the Court's original jurisdiction as set forth by Art. III, Sect 2? What does the Court say? (see p. 34)

If the Court believes the Judiciary Act is unconstitrutional (because it attempts to expand the maximu amount of the Court's original jurisdiction), must it nevertheless enforce the Judiciary Act and hear this case? Does the Court have power to declare an act of Congress unconstitutional and therefore void and not binding on the Court?