1. Ap u.s. government & politics
Thursday, September 14, 2017

2. Marbury v. Madison: You be John Marshall
Most of the Constitutional system of Checks and Balances was focused on the balance of power between Congress and the Executive
What about the Judicial Branch?
What is the Courts’ most important power in the system of Checks and Balances?
Where does this power come from??

3. Before Marbury v. Madison
Judicial Review
Before Marbury v. Madison

4. Judicial Review at the Philadelphia Convention
Judicial Review was discussed; but was not a central point of contention or focus
Virginia Plan—contemplated a “Council of Revision” to veto Congressional legislation—this was to be composed of the Executive and the Judiciary
Debate over this elicited discussion of judicial review

5. Federalist #78 Unambiguously embraces judicial review
Commonly portrayed as Dispositive Evidence that the framers embraced judicial review
But:
Hamilton was not very representative of the founders
Federalist Papers were Political Propaganda
#78 was near the end of the Papers; and was the First Time that judicial review was argued for

6. Marbury v. Madison and Judicial Review

7. Chief Justice John Marshall
Marshall was a staunch Federalist
He served as Chief Justice for 34 years (1801 – 1835); still one of the longest tenures of any Supreme Court justice
His decisions during those 34 years established the Court as a co-equal branch of the national government

8. The Facts in Marbury
President Adams appointed Marbury as Justice of the Peace for D.C.; one of dozens of lame duck judicial appointments
New President Jefferson ordered Secretary of State Madison NOT to deliver Marbury’s (and others’) commissions
Marbury sued Madison, seeking a Writ of Mandamus
Following the Judiciary Act of 1789, the case went straight to the Supreme Court

9. The Court’s Dilemma
If the Court ruled that Marbury did NOT have a legal right to his commission:
The Federalists would lose out on all of Adams’ lame duck judicial appointments that had not been delivered;
The Court would look weak – they would be admitting that they had no power to force Madison and Jefferson to deliver the commissions
If the Court ruled that Marbury DID have a legal right to his commission and issued the Writ of Mandamus:
Jefferson would likely refuse to follow the Court’s order;
Making the Court look even weaker, and proving that they had no power over the Executive Branch

10. Marshall’s Decision
1) Marbury DID have a legal right to his commission as Justice of the Peace
2) The Court DID have the power to order government officials to “do their duty”
In cases of “ministerial” duties, but not in cases of “political” duties
3) BUT – the Court could not issue a Writ of Mandamus in this case, because the section of the Judiciary Act giving the Court original jurisdiction in this case was Unconstitutional
Article III of the Constitution gives the Court original jurisdiction in cases involving foreign officials or in which a state is a party

11. The Brilliance of John Marshall
Courts typically address jurisdiction issues first – if they do not have jurisdiction over the case, there is no need to decide the merits of the case
By addressing the merits first, Marshall was able to assert the power to issue writs against government officials
Marshall had to stretch to find the Judiciary Act Unconstitutional – he could have interpreted Article III as establishing a floor on the Court’s original jurisdiction, which Congress could add to

12. Marshall’s Brilliance (cont’d.)
Marshall asserted the power to issue writs against government officials without actually trying to enforce that power
By striking down the Judiciary Act, Marshall established the power of Judicial Review – the primary source of the Supreme Court’s power
Thus, the Marbury decision made the Court many times stronger…by claiming that it lacked power in this particular case

13. Judicial Review After Marbury
Marbury v. Madison firmly established the Supreme Court’s power to strike down laws that it deems to be Unconstitutional
That power has never been seriously questioned ever since

14. Tomorrow: Chapter 2 MC & Vocab Quiz
Multiple Choice Section
10 Questions; 12 Minutes
Cumulative: Questions may draw from Chapters 1 AND 2, and any Notes sessions that we’ve had so far!
Vocab Section
18 Minutes
3 Subsections:
Free Response Definitions (Choose 5 of 6)
Fill-in-the-Blank (5 Items)
Matching (5 Items)