the Creation of Judicial Review Marbury v. Madison & the Creation of Judicial Review

The Players William Marbury Federalist John Marshall Federalist John Adam’s “Midnight” appointment as Justice of the Peace John Marshall Federalist John Adam’s Secretary of State & Chief Justice of the Supreme Court John Adams Federalist Second President of the United States James Madison Democratic-Republican Jefferson’s new Secretary of State Thomas Jefferson Democratic-Republican The New President “President Elect Jefferson”

1. Adams is voted out of office in the election of 1800 set-up to the case 2. During his “lame duck” period, Adams appoints William Marbury to be a justice of the peace 3. Marshall fails to deliver the appointment 4. Jefferson comes into office with Madison as Secretary of State 5. Jefferson orders Madison not to deliver the appointment 6. Marbury takes Madison directly to the Supreme Court to force him to deliver the appointment (writ of mandamus). Adams Marshall Marbury Madison Jefferson

Why did Marbury go directly to the Supreme Court? Judiciary Act of 1789 says: [The Supreme Court] shall have power to issue writs of prohibition to the district courts . . . and writs of mandamus . . . to … persons holding office, under the authority of the United States. Supreme Court In most cases, one must come to the Supreme Court through a process of appeals (appellate jurisdiction) Federal Appeals Court This gave the Supreme Court original jurisdiction over cases involving mandamus and persons of office. Local Court Adams Marshall Marbury Madison Jefferson

Why did Marbury go directly to the Supreme Court? Judiciary Act of 1789 says: [The Supreme Court] shall have power to issue writs of prohibition to the district courts . . . and writs of mandamus . . . to … persons holding office, under the authority of the United States. The Constitution says: In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction. Original Jurisdiction vs. Appellate Jurisdiction The question to be answered… Does Article III of the Constitution create a "floor" for original jurisdiction, which Congress can add to, or does it create an exhaustive list that Congress can't modify at all? Future acts of Congress: Cases M,N,O,P Judiciary Act 1789: Cases X,Y,Z Constitution: Cases A,B,C

Marshall’s Decision Constitution: Cases A,B,C Marbury deserves the appointment (Shame on you Jefferson and Democratic Republicans) 2. But I cannot force Madison to deliver the appointment (Makes the Democratic Republicans happy) 3. I don’t even have the right to hear this case, in fact, the Judiciary Act is in violation of the Constitution. The Question Marshall’s Reply Future acts of Congress: Cases M,N,O,P Does Article III of the Constitution create a "floor" for original jurisdiction, which Congress can add to, or does it create an exhaustive list that Congress can't modify at all? Article III is not a “floor”, but rather a comprehensive list. If its not on the list, it violates the Constitution. Judiciary Act 1789: Cases X,Y,Z Constitution: Cases A,B,C

Marshall’s Power Trade-off Gives up But Gains Future acts of Congress: Cases M,N,O,P The power to overturn/void laws passed by Congress and signed by the President Judiciary Act 1789: Cases X,Y,Z Constitution: Cases A,B,C Which is greater?

Jefferson’s Dilemma Jefferson 1. Allowing the Supreme Court to take this much power is frightening. 2. But if I protest the ruling, I have to allow the appointment of Marbury, a Federalist Judge, and risk looking like a fool in front of the entire country. Jefferson 3. Therefore, I do nothing. I must allow Judicial Review.

Judicial Review ? “So, if a law be in opposition to the Judiciary Act of 1789: Cases X,Y,Z “So, if a law be in opposition to the Constitution, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” “[T]he courts are to regard the Constitution, [because] the Constitution is superior to any ordinary act of the legislature.” Constitution Future act of Congress ? Future act of Congress Future act of Congress