Constitutional Law Class 2 January 9, 2008 JUDICIAL REVIEW Spring 2008 Professor Fischer Office: Room fischerATlaw.edu

The FACTS of Marbury v. Madison: William Marbury

The FACTS: John Adams

The FACTS: Thomas Jefferson

The FACTS: John Marshall

The FACTS: James Madison

HOLDING What is the holding of Marbury v. Madison?

HOLDING What is the holding of Marbury v. Madison? The Court ruled against Marbury and held that it could not issue mandamus to him. The Court declared that it lacked jurisdiction to grant mandamus on its original jurisdiction. The Court held that the statute that gave it original jurisdiction was unconstitutional.

REASONING: 4 QUESTIONS 1. Should the Court have reached the question of the constitutionality of the Judiciary Act of 1789? 2. When may the Court review executive conduct? 3. Was the Judiciary Act of 1789 unconstitutional? 4. Should the judiciary have authority to declare statutes unconstitutional?

REASONING: 4 QUESTIONS 1. Should the Court have reached the question of the constitutionality of the Judiciary Act of 1789?

Section 13 of the Judiciary Act of 1789  The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for... and shall have power to issue... writs of mandamus.. to any.... persons holding office, under the authority of the United States.”

REASONING: 4 QUESTIONS 2. When may the Court review executive conduct?

REASONING: 4 QUESTIONS 3. Was the Judiciary Act of 1789 unconstitutional?

Article III § 2 In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original jurisdiction.

REASONING: 4 QUESTIONS 4. Should the judiciary have authority to declare statutes unconstitutional?

AUTHORITY John Marshall in Marbury stated: “it is emphatically the province and duty of the judicial department to say what the law is.”

Section 13 of the Judiciary Act of 1789  Gave the U.S. Supreme Court “power to issue... writs of mandamus.. to any.... persons holding office, under the authority of the United States.”

REVIEW OF STATE COURTS Martin v. Hunter’s Lessee (1816) Cohens v. Virginia (1821)

THE ENDURING IMPORTANCE OF MARBURY –The Constitution is regulatory. It is not aspirational like the Magna Carta or Declaration of Independence –Congress can’t increase the jurisdiction of federal courts –Court can review executive conduct to determine its constitutionality –Court can review legislative actions for their constitutionality. –Marbury arguably leaves open the question of which branch, if any, is the authoritative interpreter of the Constitution.