Marbury v. Madison: Takeaways

1. Since Marbury commenced his case in the Supreme Court of the United States, the issue was whether the Supreme Court had original jurisdiction to hear this case. If no original jurisdiction, then the case must be dismissed.

2. Be sure you understand how the Court interpreted (almost certainly misinterpreted) section 13 of the Judiciary Act as granting the Court original jurisdiction to issue writs of mandamus. The Court’s incorrect interpretation of section 13 is the key to understanding this case. Make sure you carefully read and re-read section 13 until you understand why the Court’s interpretation was almost certainly incorrect.

3. Once the Court reads section 13 as giving the Court original jurisdiction to issue writs of mandamus, the constitutional issue becomes whether the Constitution limits the Court’s original jurisdiction. That requires the Court to interpret Art. II, sect. 2, which provides:

 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.

Since Marbury is neither a foreign ambassador or foreign public minister or consul, nor a “state,” the issue now is whether Congress can add new cases to the Supreme Court’s original jurisdiction.

4. The Court interprets Art. III, sect. 2 as providing a ceiling on the Court’s original jurisdiction (this much and no more). See p. 34. Thus, Congress may not pass laws expanding the Court’s original jurisdiction.

5. Thus, section 13 of the Judiciary Act is inconsistent with Art, III, sect. 2 of the Constitution. And the issue becomes….

6. Does the Court have the power of judicial review, the power to declare a law enacted by Congress unconstitutional and thus void.

7. The Court concludes that it does indeed have the power to declare an Act of Congress unconstitutional (the power of judicial review) because it is bound by the written Constitution and “the constitution is superior to an ordinary act of the legislature.” (casebook p. 36)

8. Notice that if the Court had correctly interpreted section 13 of the Judiciary Act, it could have reached the same result (dismissed for lack of original jurisdiction) without having to declare an Act of Congress unconstitutional. Properly understood, section 13 of the Judiciary Act does not expand the original jurisdiction of the Court and therefore is not in conflict with Art. III, sect. 2 of the Constitution.

9. Finally, notice that nothing in Art. III or anywhere else in the Written Constitution gives the Court the power of judicial review or to declare acts of federal or state laws or policies unconstitutional. This power was created by the Court itself in Marbury v. Madison. It is perhaps one reasonable interpretation of judicial power under Art. III, but the idea of judicial supremacy is not written into the text of the Constitution. 

Marbury is the most important decision in the history of the Supreme Court because it is the source of the power that the Court has ever since exercised to review the constitutionality of legislative and executive laws, rules, and policies. As Chief Justice Marshall put it (casebook p. 36), “It is emphatically the province and duty of the judicial department to say what the law is.” But notice he also said (casebook p. 37) that by the very nature of a “written constitution” it is essential “that a law repugnant to  the constitution is void; and that courts, as well as other departments, are bound by the instrument.”

 

 So query! Is a judicial decision repugnant to the Written Constitution void and thus not a valid precedent?

Who Protects Us From Our Guardians?

Assuming that judicial review of democratically-enacted laws is here to stay–and one commentator refers to the doctrine of judicial review as “an irreversible reality of American law”–how are we to protect ourselves from an abuse of judicial review?

If the Court is our Guardian against Legislative Tyranny, who (or what) is our Guardian against Judicial Tyranny?

Does the fact that the Constitution is a written Constitution protect us, because the Court is bound by the Written Constitution? Does it depend upon whether the Court is faithful to the original meaning of the ratified text of the Constitution?

Discussion Question for Marbury

Here is the discussion question about Marbury. 

There are (at least) three major interpretive turning points in Marbury, forks in the road in which the Court had to choose between one interpretive path or the other. 

What are those three turning points? What were the two paths in each case, and how did the Court's choice affect the outcome of the case?

I will call on some of you to get us started, but I want everyone to feel free to jump in and join the discussion.

Can the Supreme Court Violate the Constitution?

We have a written constitution and it binds all branches of government. Consider this excerpt from Paulsen & Paulsen (p. 26):

No branch of the federal government--not the Congress, not the President, not even the Supreme Court--can legitimately act in ways contrary to the words of the Constitution...Thus, the idea of a written constitution is closely tied to the idea of constitutional supremacy. In America, no branch of government is supreme...The Constitution is supreme....Departures from these limitations are unconstitutional.

In Marbury (p. 37), Chief Justice Marshall says "that the framers of the constitution contemplated that instrument as a rule for the government of the courts, as well as of the legislature."

It is the text of the Written Constitution that has been ratified by we the people in the states. Supreme Court decisions are only legitimate if they are faithful applications of the constitutional text.

Something to think about as we study Marbury.

Marbury and Judicial Sovereignty Over the Constitution

Does Marbury v. Madison mean that when the Supreme Court’s view of the Constitution differs from that of Congress or the President, the Supreme Court’s view always prevails?

Let’s take a hypothetical.

Suppose the Supreme Court decides Plessy v. Ferguson which held that racially segregated facilities were not unconstitutional (separate but equal decision).

Now suppose Congress passes a law that provides for racially segregated public facilities. The President vetoes this law on the ground that he believes the law is unconstitutional.

Is this permissible?


Now suppose a second hypo.

The hypo concerns abortion – now in Roe v. Wade, the Supreme Court held basically two things:

1. that an unborn child is not a “person” entitled to a right to life and equal protection under the Fourteenth Amendment; and

2. that a pregnant woman has a constitutional right to choose abortion for any reason.

That was the law according to the Supreme Court. Dobbs overruled Roe.

But let’s suppose the President disagrees – suppose the President believes that an unborn child is a “person” whose right to life is protected and that there is no constitutional right to abortion. Does the Court’s view govern over the President’s view?

It depends.

If the President signs into law Congressional legislation outlawing most abortions, what result?

The Court will strike the law down as unconstitutional and Marbury v. Madison would support the Court’s power to invalidate this law.

Now, suppose a different piece of legislation – suppose Congress passes the so-called Freedom of Choice Act which codifies Roe v. Wade and expressly immunizes abortion against restrictions enacted by state legislatures. The bill reaches the President’s desk and the President vetoes the bill on the grounds that the law is unconstitutional because the unborn child is a person entitled to the right to life.

Is this unconstitutional?

Blog Posts

Fyi: Just read the blog posts that relate to the cases we are reading at any particlar time. For next week, that means Marbury, judicial review, and McCardle.

No need to keep scrolling into the mists of the past.

Opening Statement--The Structural Protections of Liberty in the Constitution

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today's decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it. --Justice Scalia (Sebelius dissent)

Separation of Powers:Checks and Balances

I just read a wonderful description of our system of checks and balances that I would like to share with you:

We have, at least in the original design of the Constitution, a system that has no directional pull at all. Each distinct institution of government, from the President, to the Senate, to the House, is subject to different rules, all of which, in combination, are designed to create multiple obstacles to the enactment of laws.

Richard A. Epstein, 34 Harv. J. L & Pub. Policy 819 (2011). In other words, the Constitution provides multiple veto points designed to make it difficult for one-size-fits-all national laws to be enacted. As Justice Scalia used to say, deadlock is a beautiful thing ("Gridlock is what our system is designed for.")

Art. I, section 7 provides:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law.

Consider this passage from  the Paulsen book (24):

'[W]e look at four cornerstones of the Constitution's overall design: first, the fact that it is a written constitution; second, its essentially republican character; third, the carefully crafted separation of powers of the branches of the national government;  and fourth, the distinctive feature of federalism, dividing power between the national government and the states."

The Tenth Amendment was designed to underscore the fact that the Federal Government was one of strictly limited powers--it had only those powers enumerated in the Constitution, and no others. Here is the text of the 10th Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Does the fact that the Federal Government is one of only enumerated powers, as opposed to plenary power, protect liberty? If so, how so? By "avoiding too great a concentration of power in any one set of hands?" By giving citizens the right to choose among 50 competing baskets of government?

Now consider Madison on Federal Power in Federalist 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Is this how things worked out?

We will have much to say about these matters as the semester progresses.

The Election of 1800

Hamilton The Election of 1800

Summer Reading (and a Summer Film)

 Just in case any of you stop by to visit the blog this summer, I wanted to share a book recommendation.

It is an oldie, but a goodie. Indeed it has never been more relevant to the times we are living in. I refer, of course, to George Orwell's 1984, a prophetic novel about life in a country that very much resembles America in 2023. I am re-reading it as I write this post. It is bone-chilling in its prophetic description of what life in America is becoming here in 2023. Here is a link to Amazon

And here is a brief excerpt about "doublethink:"

Doublethink: “to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, to believe that democracy was impossible and that the Party was the guardian of democracy, to forget whenever it was necessary to forget….” 

 Sound familiar? Lol!

My film recommendation is also a classic that is more relevant today than ever. It is A Man For All Seasons, a drama about Sir Thomas More, religious liberty, and freedom from compelled speech about marriage.  It won 6 Oscars including for Best Picture. Here is a link

Courage is Contagious: When One Man Stands For the Constitution and Against Tyranny

 

"It’s only because a steadfast minority refuses to live under totalitarianism that we do not live under totalitarianism."--Rep. Thomas Massie

  "The Constitution is not the law that governs us. [It] is the law that governs those who govern us." --Randy Barnett

NYT on Free Speech: Speech We Loathe Is Speech We Must Defend

New York Times

Federal Court Protects Free Speech on Social Media!

 This is huge! Judge Doughty issued this order on July 4! Then he perhaps had a burger and shot off some fireworks celebrating liberty!!!

From Politico:

A federal judge in Louisiana ruled Tuesday that the Biden administration likely violated the First Amendment by censoring unfavorable views on social media over the course of the coronavirus pandemic, calling the efforts “Orwellian.”

U.S. District Court Judge Terry Doughty also issued a sweeping preliminary injunction barring numerous federal officials and agencies — including Surgeon General Vivek Murthy, Health and Human Services Secretary Xavier Becerra, White House press secretary Karine Jean-Pierre and all employees of the Justice Department and FBI — from having any contact with social media firms for the purpose of discouraging or removing First Amendment-protected speech.

 

Here is a powerful quote from Judge Doughty's memorandum ruling:

 " Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts  an   almost   dystopian   scenario.   During   the   COVID-19   pandemic,  a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian 'Ministry of Truth.'”

Whoa! I don't know if this injunction will stand, but regardless, it is wonderful to see these censorship efforts by the National Government see the light of day. Sunshine is the best disinfectant.