During the1790s, the Federalists were accused of reviving some aspects of Monarchy and reverting to

1
Background to Marbury v. Madison
During the1790s, the Federalists were accused of
reviving some aspects of Monarchy and reverting
to a system of patronage out of disillusionment
over the type of men coming into government. The
Jeffersonian Republicans challenged the Adams
Administration as corrupt and promised to undo
the corruption if elected President.
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The Backdrop to Marbury v. Madison

• The election of 1800 Jefferson (Republican)
  defeats Adams (Federalist), but there is a tie in
  the electoral college between Jefferson and his
  running mate, Aaron Burr. The election is
  committed to the House (the genesis of the 12th
  amendment)

• Before the election is decided, lame-duck
  President Adams nominates his Secretary of State,
  John Marshall (a Federalist) to serve as Chief
  Justice of the Supreme Court. Marshall continues
  to serve as Secretary of State for Adams until
  Adams leaves the Presidency, even after he is
  confirmed as Chief Justice.
• The lame-duck Federalist Congress, with the
  support of Adams, takes steps to secure
  Federalist hold over the Judiciary, including
  enacting the Circuit Courts Act, adding new
  federal judges, appointed by Adams, and an Act
  creating 42 justices of the Peace to serve 5
  years terms in D.C. and Alexandria.

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• The day before Jefferson takes office, the Adams
  Administration, and Secretary of State John
  Marshall, executes commissions for the newly
  created justice of the peace positions. All but
  4 of the commissions are delivered by midnight of
  March 3. One of these 4 is Marburys.

• Upon taking office that next day, Mar.4,1801, an
  angry President Jefferson orders James Madison,
  his Secretary of State, to cease the delivery of
  the remaining commissions.

• Marbury files suit directly in the Supreme
  Court, seeking to compel Secretary of State
  Madison to deliver the commission.

• The new Congress, now with a Republican
  majority, repeals the Circuit Courts Act of 1801
  and then suspends and postpones the Supreme
  Courts 1802 Term, fearing that the
  (Federalist-dominated) Court might rule the
  repeal unconstitutional. The Court does not meet
  again until the 1803 Term, when it finally
  decides Marbury v. Madison.

4
A Constitutional Crisis

• A partisan struggle for control of the Judiciary
  (An early recognition of the uneasy relationship
  between law and politics, and an effort to
  influence making of law through politics)

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• A power struggle between the Executive Branch
  and the Judicial Branch

• A politically charged case the Defendant, James
  Madison, author of the Federalist papers and
  generally regarded as the Framer most responsible
  for drafting the Constitution was now alleged to
  have usurped Executive power.

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The Courts starting point the Merits
(1) Did Marbury have a right to the commission?
(Did Madison break the law?) Court Yes, the
right to the commission vested when it was
signed and sealed, and once vested, could not be
revoked by the President. (2) Given the
violation of rights, is Marbury entitled to a
writ of mandamus against Madison? Court yes,
the Executive branch is not above the law (but
notes that some executive decisions are
discretionary, outside the bounds of judicial
review, a precursor to the political question
doctrine)
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The Heart of the Case Jurisdiction Does the
Court have the power to issue the writ?
Really 3 questions
(1) Did Congress authorize jurisdiction for this
case? (2) If so, does Congress authorization
comply with the Constitution? (3) If not, what
is the role of the Court?
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The Question of Statutory Interpretation

• Does the Judiciary Act confer jurisdiction in
  this case? Exactly where in the statute does it
  do this?
• Section 13 of the Judiciary Act, fn. a, p.86
• ...the Supreme Court shall have exclusive
  jurisdiction...where the state is a party, except
  between a state and its citizens.... And shall
  have exclusively all such jurisdiction of
  suits...against ambassadors... and original, but
  not exclusive jurisdiction of all suits brought
  by ambassadors or other public ministers... The
  Supreme Court shall also have appellate
  jurisdiction...in cases herein after specially
  provided for and shall have the power to issue
  ... writs of mandamus...to any court appointed,
  or persons holding office, under the authority of
  the United States.

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Is the Conferral of Jurisdiction Constitutional?
(Interpreting Article III)

• Does the Acts conferral of original
  jurisdiction here violate Article III?
• U.S. Constitution, Art. III, Section 2, clause 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 to which the judicial power
  extends, under section (2), clause (1), the
  Supreme Court shall have appellate Jurisdiction,
  both as to Law and Fact, with such exceptions,
  and under Regulations as the Congress shall make.

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• Possible Readings of Art. III on Original
  Jurisdiction
• The Courts reading Article III sets both a
  floor and ceiling on original jurisdiction there
  can be no original jurisdiction in the Court
  except for those cases specifically mentioned in
  Article III
• Alternative readings
• Article III is a floor, not a ceiling (Madisons
  argument) Congress cant take away original
  jurisdiction over the types of cases listed in
  Article III, but Congress expand original
  jurisdiction to include other cases too
• focus on the exceptions clause Congress can
  except certain types of cases from appellate
  jurisdiction and add them to original
  jurisdiction
• Does the Courts reading ultimately weaken its
  own authority by interpreting Art. III in such a
  way that Congress can except cases from appellate
  jurisdiction without adding them back under
  original jurisdiction?

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The Final Issue (and the Heart of the Case) Does
the Court Have the Power to Declare the Act
Unconstitutional?
2 sub-parts A. Given a conflict between a
federal statute and the Constitution, which
prevails? B. What is the role of the Court in
such a situation? (who gets to decide whether
the Constitution is violated?)
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The Hardest Issue The Role of the Court

• What support is there in the Constitution for
  giving the Court the final say on the
  constitutionality of a federal statute?
• It is emphatically the province and duty of the
  judicial department to say what the law is -
  p.89, Where, in the Constitution does this come
  from?
• would a contrary result really subvert the very
  foundation of all written constitutions?
• What authority does C.J. Marshall cite to support
  this principle? Why doesnt he cite evidence of
  the Framers intent?

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Marshalls Examples of the Necessity for Court
Review

• -a state imposes a tax on exports, in violation
  of the no tax or duty clause
• -a state condemns someone to death under an ex
  post facto law, in violation of the prohibition
  on ex post facto laws
• -a legislature passes a law declaring one witness
  sufficient for a treason convictions, contrary to
  Constitutions guarantee that no person shall be
  convicted of treason without two witnesses
• Why do you think C.J. Marshall picks these
  examples? Are they representative of
  constitutional interpretation by courts?

13
The Crafting of Marbury and the Principle of
Judicial Review

• Why do you think C.J. Marshall chose this case
  to elaborate the principle of judicial review?
  Why not simply say, no jurisdiction, end of
  story?
• Or, why not set down the principle of judicial
  review in a case where the Court can exert its
  power and remedy a violation of rights?
• What might have happened if the Court had read
  Article III differently, as a floor and not a
  ceiling, so as to permit the exercise of
  jurisdiction in this case? Were there any
  reasons why C.J. Marshall might have been
  reluctant to do so?
• Hint President Eisenhower, upon learning of
  Brown v. Board of Education, remarked Let
  Justice Warren enforce his own order.

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The Counter-Majoritarian Difficulty

• The lingering controversy after Marbury If the
  Court has the final say in interpreting the
  Constitution, who checks the Court?
• If a contrary result in Marbury would have
  given to the legislature a practical and real
  real omnipotence, whos omnipotent now?
• The next time the Court struck down an Act of
  Congress as unconstitutional was 54 years later
  in Dred Scott v. Sanford (1856)
• The counter-majoritarian difficulty should we
  be concerned when an unelected Court strikes down
  an act of a democratically elected branch of
  government?