ConLaw+-+Chemerinsky - Constitutional Law Part I. The...

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Constitutional Law Part I. The Constitution and the Court A. The Judicial Function in Constitutional Cases Marbury v Madison FACTS: Marbury is a would-be Justice of the Peace for a federal position; Adams approved and signed him, but it was never delivered by John Marshall (Chief) acting as secretary of state at the time. Sues James Madison (current sec of state) asking for mandamus (a writ that compels one to act). Case starts in Supreme Ct b/c of Judiciary Act of 1789 (fn). This is an early manifestation of the conflicts between Jeffersonian Republicans and the Marshall Ct. Marshall says Supreme Ct has appellate jurisdiction, and not original jurisdiction in this case. Section 13 of Act of 1789 conflicts with the Const Art III Sec 2 subd 2 b/c this says that Congress can only appeal these cases; Original jurisdiction is enumerated and this act goes against it. Marbury did have a right to have the commission b/c it was all but delivered BUT political things may not be decided by the ct (i.e. the Ct cannot make Kennedy decide between firing a missile or not). A secretary of state can’t use discretion and must follow through. Further, there is a remedy that the court can grant (the writ). Because of Art. III the court cannot grant mandamus, even if congress tries to add to it. {S. CT. actually removes some of its own powers just to take others} The framers made original and appellate jurisdiction and this was intentional and they used their limited words to do this (they could have just created courts and left it all up to the legislature, but they didin’t)[textual argument]—Here an act of congress is declared unconstitutional. The judicial branch is not democratic b/c they are not voted on and giving them too much power can be dangerous. Normal practice of Ct is to avoid Con question and decide it on other grounds. Marshall could have said 1) it is not binding until it is delivered (common law) 2) Dismissed himself from the case 3) says mandamus cannot be granted by ct b/c that is the job of the executive 4) say it is a political question and not good for the ct to hear (“Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made to this court p6-but he says it isn’t this sort of case). Marshall decides the jurisdiction question last, probably to lecture the Jeffersonian (Republicans)-Madisons(Federalists) about rights and remedies but he didn’t want to issue the writ to avoid a conflict of the branches. The Act of 1789 could be read to allow writs for appeals and this is not a broadening of powers; Congress wasn’t adding to the original jurisdiction of the Ct (which would be unconstitutional) but this can be done by appeal. Marshall could say that there’s only appellate review power and there’s no jurisdiction to the Ct on original jurisdiction AND this avoids the constitutional question. It is the Supreme Cts job to decide Con questions b/c 1) Structure of Con 2) Text of Con i.e. Art
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This note was uploaded on 04/15/2008 for the course CON LAW 101-2 taught by Professor Mazzone during the Spring '08 term at Brooklyn Law School.

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ConLaw+-+Chemerinsky - Constitutional Law Part I. The...

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