Constitutional Law I
Dr. Mark J. Richards
Marbury v. Madison, 1803
I. Why is this case important?
A. Americans tend to take the power of judicial review for granted in the U.S.
Judicial review is the power of courts to judge the constitutionality of government actions, and overturn those actions if they violate the Constitution.
B. Why is it controversial?
In Marbury, Chief Justice John Marshall claims power of judicial review for Supreme Court. Many people believe that the Constitution gives the courts the power of judicial review, but that is not the case.
C. Tension between liberalism and democracy
This case illustrates the tension between liberalism and democracy in the U.S. The practice of an unelected body of nine justices overturning legislation passed by democratically elected Congresses, Presidents, state legislatures, and governors violates the ideal of democracy. However, the Constitution embodies certain principles of liberalism (such as rights and due process) which are not necessarily consistent with democracy.
II. Facts
Discuss:
Who was the President at the time of this case?
What was his party affiliation?
Who was the previous President, and what was his party affiliation?
What did the Federalists do before Jefferson took office?
What did the Circuit Court Act do?
What was the purpose of the Organic Act?
What happened to the commissions?
Who was Marbury? What was his claim?
III. Issues
A. How to frame an issue in a court case
The issue should be phrased in the form of a question, and should incorporate the relevant legal rule(s) and the action that is relevant to the legal rule.
B. Issue #1
Does the failure of Madison to deliver the commission to Marbury violate Marbury's legal right, based on the Organic Act, to possess the commission?
C. Issue #2
Does the Supreme Court have the constitutional power of judicial review to refuse to issue a writ of mandamus as provided for by section 13 of the 1789 Judiciary Act if that provision violates the Constitution?
This involves two related issues.
1. Does the provision section 13 of the 1789 Judiciary Act regarding writs of mandamus violate Article III of the Constitution, which defines the Court's jurisdiction?
2. If so, does the Supreme Court have the power to overturn that act as unconstitutional? Does the Supreme Court have the power of judicial review?
IV. Holdings
A. How to state a holding
The holding should restate the issue in the form of a statement, rather than a question. The purpose is to state the court's definitive answer regarding the issue.
B. Holding #1
The failure of Madison to deliver the commission to Marbury violates Marbury's legal right, based on the Organic Act, to possess the commission.
C. Holding #2
The provision of Section 13 of the 1789 Judiciary Act regarding a writ of mandamus violates Article III of the Constitution. The Supreme Court has the power of judicial review, so it can refuse to issue a writ of mandamus.
(Analysis: Why would Chief Justice John Marshall even decide the first issue if the delivery of a writ of mandamus is unconstitutional, as he holds with regard to issue #2? He does it to spite Jefferson.)
D. Why are these holdings politically savvy? Discuss.
V. Reasoning
A. What is legal reasoning?
There are four key elements of legal reasoning.
1. Facts
2. Law
3. Policy
4. Politics and normative values
Lief Carter - Good reasoning harmonizes these elements, but they do not always fit together well. Judges need to justify their decisions, so this is why they engage in legal reasoning.
The reasoning in Marbury is politically astute, but is poor legal reasoning
B. On Holding #1, that Marbury has a right to the commission.
His commission was passed by appropriate legal procedures. The President appointed him, and the Senate confirmed him. It is a non-revocable 5-year appointment.
This point is reasonable, but it was unnecessary to decide this issue in light of the Court's other holdings.
C. On section 13 of the 1789 Judiciary Act being unconstitutional
1. Article III of the Constitution establishes original and appellate jurisdiction, and says that Congress can change appellate jurisdiction, but not original jurisdiction.(Original jurisdiction involves cases that go directly to the Supreme Court initially, rather than going to the Supreme Court on appeal. In original jurisdiction cases, the Supreme Court acts as a trial court.)
2. Section 13 of the 1789 Judiciary Act enlarges the original jurisdiction of the Court by allowing for writs of mandamus in cases based on original jurisdiction.
3. Analysis: This is not good legal reasoning. He could have viewed the provision regarding writs of mandamus in section 13 of the 1789 Judiciary Act as either:
a) Not enlarging but specifying original jurisdiction
b) Applying only to appellate jurisdiction
These are both reasonable interpretations that would have made the Act constitutional. Instead, he reads it in a way that makes it unconstitutional.
D. On the Court's power of judicial review
1. Article III of the Constitution states: "The judicial power shall extend to all cases . . . arising under the Constitution."
Analysis: What is wrong with this argument?
2. Judges and justices take an oath of office in which they swear to uphold the Constitution of the U.S.
Analysis: Why is this not a satisfactory reason?
3. Article VI says that the "Constitution . . . shall be the supreme law of the land."
Analysis: Why is this not a satisfactory reason?
4. "It is emphatically the province and duty of the judicial department to say what the law is."
Analysis:
VI. Discussion
A. Implications
B. Functional arguments for having the Supreme Court possess the power of judicial review
VII. Models of Supreme Court decision making
A. Attitudinal model
Jeffrey Segal and Harold Spaeth
1. Justices vote based on their political attitudes, also known as their policy preferences.
2. Why?
B. Strategic model
Walter Murphy. Later, Lee Epstein and Jack Knight, among others.
1. Attitudinal model assumes sincere voting behavior, but justices may need to depart from pursuing their sincere policy preferences due to :
a. Internal strategy
b. External strategy
C. Jurisprudential regime theory
Mark Richards and Herbert Kritzer
1. Attitudinal model is too simplistic, and so is a mechanistic legal model.
2. Incorporates attitudinal and strategic insights, but adds a jurisprudential dimension, following Martin Shapiro's concept of "political jurisprudence."
3. Justices use jurisprudential regimes to establish relevant case factors and/or how to weigh those factors (e.g. level of scrutiny). After a regime is established, the justices will evaluate those case factors differently.
