the origins of judicial review l.
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article iii
Article III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

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, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

article iii cont
Article III (cont.)
  • The Supreme Court is established by the Constitution (so Congress need not create it and cannot abolish it).
  • But the size of the Supreme Court is fixed by Congress, not the Constitution.
  • Congress must also by law establish other “inferior” U.S. (federal) courts (and can subsequently abolish or change them).
  • All federal judges serve during good behavior (Congress can’t change this).
  • Federal judges must be paid salaries, which cannot be cut.
  • U.S. courts have jurisdiction over all cases that arise under the Constitution, federal law, and treaties, as well as some other cases (e.g., in which the U.S., states, or citizens of different states, are parties).
  • The Supreme Court has original jurisdiction in a very small number of cases (e.g., in which states are parties),
    • that is, such cases are tried before the Supreme Court itself (so there can be no appeal).
  • Otherwise, the Supreme Court’s jurisdiction is appellate,
    • that is, such case are tried before other (“inferior”) federal or state courts but may reach the Supreme Court on appeal.
the first congress
The First Congress
  • When the first U.S. Congress met in the Spring of 1789, it had an incredibly heavy agenda.
    • It had to pass a law setting up a federal court system, in a manner consistent with Article III.
    • It had to pass laws establishing the executive departments: State, Treasury, War, Navy, and Post Office.
    • It was politically obliged to propose a package of constitutional amendments that would include the Bill of Rights that the original Constitution lacked.
  • James Madison was the “floor leader” in the House of Representatives.
    • He shepherded the necessary legislation through Congress.
    • Members proposed a wide range of constitutional amendments, many of which reopened the structural issues that the convention had resolved by difficult compromise.
      • Madison skillfully deflected such amendments and got Congress to propose a package of 12 amendments that explicitly secured certain rights but did not change the structure of the constitution.
the judiciary act of 1789
The Judiciary Act of 1789

An Act to establish the Judicial Courts of the United States

Sec. 1.Be it enacted, That the Supreme Court of the United States shall consist of a chief justice and five associate justices, . . . .

Sec. 2. That the United States shall be, and they hereby are, divided into thirteen districts, . . . .

Sec. 3. That there be a court called a District Court in each district, to consist of one judge, who shall be called a District Judge, . . .

Sec. 4. That the districts shall be divided into three circuits, . . . That there shall be held annually in each district . . . a Circuit Court, which shall consist of any two justices of the Supreme Court and the district judge of such districts.

Sec. 9. That the district courts shall have cognizance of all crimes and offenses that shall be cognizable under the authority of the United States . . . . [with a number of exceptions].

Sec 11. That the circuit courts shall have original cognizance [over the exceptional cases] . . . and appellate jurisdiction from the district courts . . . .

Sec 13. The Supreme Court shall have appellate jurisdiction from the circuit courts and courts of the several states in the cases hereinafter specially provided for and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principle and usages of law, to any courts appointed, or persons holding office under the authority of the United States. . . .

[A writ of mandamus orders an public official to carry out a “ministerial duty.”]

constitutional interpretation
Constitutional Interpretation
  • We now briefly revert back to social contract theory.
  • A “Hobbsian constitution” would be short and sweet and unambiguous:
    • We the people of the United States, in order insure domestic tranquility [maintain a state of peace] and provide for the common defense [forget about a more perfect union, establishing justice, promoting the general welfare, and securing the blessings of liberty] do hereby give up all of our natural liberty and rights and delegate them to an all-powerful central government, embodied in the person of George Washington, who accordingly has authority to exercise unlimited power (including naming his successor) in order to carry out these functions.
  • This constitution has the virtues of brevity, simplicity, and lack of ambiguity --- but few other virtues.
constitutional interpretation cont
Constitutional Interpretation (cont.)
  • In contrast, a “Lockean constitution” tries to make lots of distinctions (in particular, between powers delegated to the government and powers denied to the government) and, as a result, has a lot of provisions that are open to differing reasonable interpretations.
  • Many of the provisions of such a constitution are ambiguous because
    • they are written in mere words,
    • the words may reflect compromises made by its framers, and
    • some issues were left open or unaddressed by its framers, e.g.,
      • unilateral succession by states, and
      • who has the final say in interpreting the meaning of ambiguous aspects of the Constitution.
constitutional interpretation cont8
Constitutional Interpretation (cont.)
  • For example: Article 1, Section 8. The Congress shall have power . . . to regulate commerce . . . among the several states. . . . [The Interstate Commerce clause]
    • What does commerce include?
      • Just buying and selling goods? (or services?)
      • Transporting goods from where they are produced to market?
      • What happens in fields, mines, factories, etc.?
    • What does among the states (or interstate) mean?
      • For example, if commerce includes transportation, is it interstate only at the moment goods cross from one state to another?
    • What does regulate mean?
      • For example, does the power to regulate include the power to entirely prohibit certain goods in interstate commerce?
constitutional interpretation cont9
Constitutional Interpretation (cont.)
  • Who has the power to interpret such constitutional provisions?
    • Congress itself?
      • The British Parliament is the sole interpreter of its powers.
    • The states?
      • The doctrine of nullification (and “massive resistance”)
    • Special bodies?
      • The “Council of Revision” in the Virginia Plan
      • A special “Constitutional Court” (as in Germany and elsewhere)
    • The (ordinary) courts?
judicial review
Judicial Review
  • The power of judicial review is the power of a court to interpret both the provisions of the Constitution and the provisions of a law and to declare the law unconsti-tutional and null and void if it judges the law to be incompatible with the Constitution.
  • No explicit language in the Constitution
    • gives federal courts the power of judicial review, and
    • no explicit language denies them this power).
  • The language of the supremacy clause doesobligate state courts to exercise a power of judicial review.
    • This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
hamilton federalist 78
Hamilton, Federalist 78

The judiciary will always be the least dangerous [branch]. The judiciary has neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

The complete independence of the courts is peculiarly essential in a limited Constitution, . . . which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. . . .

No legislative act contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.

[The power of judicial review] does not by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

these two portraits sit side by side in the supreme court s private dining room marbury v madison
These two portraits sit side-by-side in the Supreme Court’s Private Dining RoomMarbury v. Madison
marbury v madison
Marbury v. Madison
  • Marbury v. Madison (1803) was the first case in which the SC claimed and exercised a power of judicial review.
  • The immediate issue was of trivial significance (quite often true in landmark SC cases) and was embroiled in early party politics.
  • The Presidential election of 1800:
    • Republican Thomas Jefferson defeated the incumbent Federalist John Adams.
    • The Republicans (actually the ancestor of today’s Democratic Party) also took control of Congress from the Federalists.
    • But the “lame duck” Federalist Congress passed an amendment to the Judiciary Act, creating a lot of new judicial positions, which were filled at the last minute by Federalist appointees.
    • William Marbury received such a “midnight appointment” to a minor judicial post in the new District of Columbia.
      • His commission was signed by President Adams and sealed by the Secretary of State but, by oversight, not delivered to Marbury by Presidential inauguration day.
    • The new Secretary of State, James Madison, did not correct this oversight.
marbury v madison cont
Marbury v. Madison (cont.)
  • Marbury sued Madison in the Supreme Court, asking the Court to issue a writ of mandamus ordering Madison to deliver the commission.
    • The SC (and the federal judiciary as a whole) was of course dominated by Federalist appointees.
    • It had a new Chief Justice, John Marshall, himself a midnight appointee who had been Adams’ Secretary of State.
      • Marshall did not recuse himself from the case.
    • Marshall (like other Federalists) was suspicious of the Jeffersonian Republicans and might have liked to “get even” by issuing the writ.
    • But he feared a writ would be ignored or defied, revealing the weakness of the SC and setting a bad precedent for the legitimate authority of the courts (the last bastions of Federalist authority of the national level).
marbury v madison cont15
Marbury v. Madison (cont.)
  • Marshall’s opinion:
    • Has the applicant a right to the commission?
      • Yes, it is being illegally withheld.
    • Has the applicant a legal remedy for this wrong?
      • Yes, a writ of mandamus can properly be directed against a public official who fails to carry out a ministerial duty.
    • Is the applicant entitled to the particular remedy for which he applies?
      • No, the SC does not have the power to issue such a writ.
  • But why not? The Judiciary Act explicitly gives the SC that power.
    • Because the Judiciary Act is in that respect unconstitutional.
marbury v madison cont16
Marbury v. Madison (cont.)
  • Why is the Judiciary Act unconstitutional?
    • The judicial power of the U.S. extends to all cases that arise under U.S. law.
    • But the Constitution distributes this judicial power in two ways:
      • between the SC and inferior courts, and
      • between original and appellate jurisdiction.
    • The Constitution gives the SC original jurisdiction over a few types of cases and [Marshall says] Congress can neither restrict or expand this original jurisdiction.
      • By giving the SC itself the power to issue writs of mandamus Congress tried (unconstitutionally) to expand the SC’s original jurisdiction.
  • So while Marbury has a valid grievance, he needs to go elsewhere (e.g., to a Federal District Court) for the remedy.
    • Marbury never did this and never got his commission.
marbury v madison cont17
Marbury v. Madison (cont.)
  • The was a very clever and convenient argument.
    • It repeatedly affirms that the (Republican controlled) Executive Branch is in the wrong.
    • It does this without actually testing the power of the SC to issue the writ and have it obeyed.
    • In the immediate case, the SC made a “self-restrained” decision in that the SC denied itself a power that Congress had tried to give it.
    • But in the long term the SC was claiming (and exercising in a minor way) the far more sweeping power of judicial review
      • that is not explicit in the Constitution, and
      • that it could exercise in the future in far more important cases.
marbury v madison cont18
Marbury v. Madison (cont.)
  • Marshall’s general argument about whether the power of judicial review is implied by the Constitution is generally cogent and reasonable.
    • Remember that Alexander Hamilton made a similar argument in Federalist #78.
    • And most delegates at the constitutional convention evidently assumed courts would have this power.
  • However, his specific examples focus on “easy cases” where the Constitution is exceptionally unambiguous:
    • no tax or duty shall be laid on articles exported from any state;
    • no bill of attainder or ex post facto law shall be passed;
    • no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
  • He emphasizes that judges take an oath to uphold the Constitution.
    • But he does not note that members of Congress who passed the Judiciary Act (and all other officials) take an identical oath.