The following is a more accessble plain text extract of the PDF sample above, taken from our Constitutional Law I Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Marbury and Questions of Judicial Power and Interpretive Authority
Election of 1800
[SEE pp. 99-103]
Stuart v. Laird (pg. 104)
Stuart v. Laird involved a challenge to the repeal of the Judiciary Act of 1801, of which (1) abolished federal circuit judgeships thus requiring the Supreme Court Justices to return to riding circuit, and (2) caused the Circuit Judges to lose their commissions after receiving them.
The petitioner challenged the Repeal Act on the grounds that (1) the repeal of the circuit judgeships was unconstitutional because according to Article III, once they had received their commissions, they were entitled to life tenure; and (2) the Justices of the Supreme Court held commissions to be Supreme Court Justices, but not circuit judges; therefore, they could not return to sit as circuit judges.
The Court did not address whether there was a violation of Article III with respect to the abolition of the circuit judgeships; instead the court merely held that requiring the Supreme Court Justices to return to riding circuit was not unconstitutional:
"Congress have constitutional authority to establish from time to time such inferior tribunals as they may think proper; and to transfer a cause from one such tribunal to another. In this last particular, there are no words in the constitution to prohibit or restrain the exercise of legislative power." (pg. 105)
In effect, the Court upheld the constitutionality of the repeal of the Judiciary Act.
Marbury v. Madison (pg. 108)
Issue 1: Has the applicant a right to the commission he demands?
"[W]hen a commission has been signed by the President, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state." Marbury v. Madison (pg. 110)
"Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office."
"But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed." Marbury v. Madison (pg. 110)
"The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional, power of accepting or rejecting it." Marbury v. Madison (pg. 110)
Issue 2: If he has a right, and that right has been violated, do the laws of the country afford him a remedy?
The Court suggest that for every right there is a remedy. See Mabury.
"[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy." Marbury v. Madison (pg. 112)
The Court held:
"1st. That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice of peace, for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years." Marbury v. Madison (pg. 112)
"2dly. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of his country afford him a remedy." Marbury v. Madison (pg. 112)
Issue 3: If they do afford him a remedy, is it a mandamus issuing from this court?
"The act to establish the judicial courts of the United States authorizes the supreme court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.'" Marbury v. Madison (pg. 113)
"[I]f this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign." Marbury v. Madison (pg. 113)
The Court concludes that the Judiciary Act conferring jurisdiction for the Court to issue a mandamus in the instant case was inconsistent with the Constitution; therefore, the Court ultimately concludes that the act is unconstitutional.
NOTE: The Court here resolved the ambiguity such that there would be a clash between the statute and the Constitution.
TODAY, the Court would employ the Canon of Avoidance, that is, where there are two fair readings of a statute, and one would cause a constitutional issue and the other would not, the Court will construe the statute such that there is no constitutional issue.
There is a presumption that Congress does not intend to pass unconstitutional laws.
"The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States . . . ." Marbury v. Madison (pg. 115)
"It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act." Marbury v. Madison (pg. 115)
"Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void." Marbury v. Madison (pg. 115)
"It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison (pg. 116)
"If two laws conflict with each other, the courts must decide on the operation of each." Marbury v. Madison (pg. 116)
"If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply." Marbury v. Madison (pg. 117)
The Court concluded that "a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument." Marbury v. Madison (pg. 120)
Federal Review of State Legislation
Martin v. Hunter's Lessee and Cohens v. Virginia effectively settled the Supreme Court's authority to revise judgments of state courts, and, in effect, settled the federal judicial power to determine the constitutionality of state laws.
Note on Cooper v. Aaron (in February 11, 2013 folder)
This case stands in support of the idea of Judicial Supremacy, that is, the proposition that even Executive officials and Legislators are bound by the Constitutional interpretations handed down by the Court.
BUT is that right?
Isn't each branch entitled to its own interpretation of the Constitution?
Consider the Executive, of whom takes an oath to protect and defend the Constitution.
What if he disagrees with the Court's interpretation? Can he disregard it?
Andrew Jackson thought so. See Andrew Jackson's Veto Message.
Jackson’s Veto of the Bank and presidential authority to decline to enforce statutes
"Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled." (pg. 75)
"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve." (pg. 75)
Note on Jefferson, the Louisiana Purchase and constitutional fidelity (in February 11, 2013 folder)
Thomas Jefferson entertained great doubt about the constitutionality of the Louisiana Purchase; nonetheless, he effected the deal without publicly raising his concerns due to the fragility of the deal.
"Our confederation is certainly confined to the limits established by the revolution," he wrote privately. "The general government has no powers but such as the constitution has given it; and it has not given it a power of holding foreign territory, & still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this." (Dickinson Letter, Aug. 8, 1803.)
"[W]hen I consider that the limits of the US are precisely fixed by the treaty of 1783, that the Constitution expressly declares itself to be made for the US, I cannot help believing the intention was to permit Congress to admit into the Union new States, which should be formed out of the territory for which, & under whose authority alone, they were then acting. I do not believe it was meant that they might receive England, Ireland, Holland, &c. into it . . . . I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the power [i.e., Congress’s enumerated article I powers] which that instrument gives." (Jefferson Letter to Wilson Cary Nicholas, Sept. 7, 1803.)
"When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe & precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. . . . I think it important, in the present case, to set an example against broad construction, by appealing for new power to the people." (Jefferson Letter to Wilson Cary Nicholas, Sept. 7, 1803.)
Eighteen months after Jefferson left office as President—a correspondent wrote him inquiring about "whether circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law."
Jefferson responded that this was a question "easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means." (Letter to John B. Colvin, Sept. 20, 1810.)
Jefferson gave several examples of the hard cases he had in mind. One of these had obvious echoes in his experience with the Louisiana Purchase, but he took the hypothetical even further, questioning when an executive might be warranted in exercising unilateral power to finalize the international agreement and exchange funds for land:
"[T]o exemplify the principle, . . . I will state an hypothetical case. Suppose it had been made known to the Executive of the Union in the autumn of 1805, that we might have the Floridas for a reasonable sum, that that sum had not indeed been so appropriated by law, but that Congress were to meet within three weeks, and might appropriate it on the first or second day of their session. Ought he, for so great an advantage to his country, to have risked himself by transcending the law and making the purchase? The public advantage offered, in this supposed case, was indeed immense; but a reverence for law, and the probability that the advantage might still be legally accomplished by a delay of only three weeks, were powerful reasons against hazarding the act. But suppose it foreseen that a John Randolph [who had been a leading opponent of the Louisiana Purchase in the House] would find means to protract the proceeding on it by Congress, until the ensuing spring, by which time new circumstances would change the mind...
Buy the full version of these notes or essay plans and more in our Constitutional Law I Outlines.