I finished my audio course on Roman history (review to come) and am now doing a course on major Supreme Court decisions. The first case the course considers is Marbury v. Madison, the 1803 decision in which the Court first exercised its power of judicial review (i.e., its ability to declare a law unconstitutional). This power is not enumerated in the Court’s powers in the Constitution, nor is it granted to the Court by statute, and so every commentary on the case focuses on its historic significance as carving out new power for the Court.
I’m not interested in that.
Actually, I am, but not at the moment. There is an argument to be made that the power of judicial review is implied in the Constitution, but what interests me presently is whether Marbury v. Madison was rightly decided. I’m thinking that it was not, but I’m not a legal scholar, and so perhaps someone reading this blog who is a legal scholar can tell me whether my reasoning is sound.
Here’s the basic issue: This guy named Marbury had been appointed justice of the peace by the president. I know, you’re saying “Big whoop. A justice of the peace. So what?” but back then being a justice of the peace was a Big Deal. The problem is, his commission document was never delivered to him, so he petitioned the Supreme Court to issue an order to the Secretary of State (James Madison) to fork over the commission. Problem was, Madison was part of a new administration that didn’t want to do that, and so he wouldn’t.
Marbury’s lawyer went to the Supreme Court and said, “Look, your honors, in the Judiciary Act of 1789, Congress gave y’all the power to issue orders of that kind if someone approaches you directly (rather than working his way up through the lower courts), so please issue one in this case.”
In Marbury v. Madison, Chief Justice John Marshall, writing for the Court, said–in effect–“You’re right that the law in question says we have the power to issue such orders if someone approaches us directly, but the problem is that this law is unconstitutional. Congress can’t give us that power because it is prohibited by Article III of the Constitution, which says:
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.
“This means,” Madison in effect continued, “that we the Court have original jurisdiction (i.e., people get to approach us directly) only in a limited number of cases and in all other cases we have only appellate jurisdiction (i.e., people will have to work their way up through the courts). When Congress said we could issue the kind of order you’re after, they were adding an item to our original jurisdiction which the Constitution says should belong to our appellate jursidiction. Therefore, what they said was wrong. The law is unconstitutional. Too bad. So sad. You’re out of luck.”
This seems like a blazingly bad argument to me because there is a big honking EXCEPTION written into the Constitution itself. What the relevant provision says is: “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction . . . with such exceptions . . . as the Congress shall make.”
It seems to me that in writing the Judiciary Act of 1789 the Congress was making one of the exceptions that the Constitution said it had the power to make by adding a new item to the list of things that belonged to the Court’s original jurisdiction.
I’ve done a little searching around on the web and found some practical arguments why this is a bad idea (e.g., the Court would be overwhelmed with people petitioning it to issue such orders to government officials), but this is not an argument addressing what the law says.
Could any legal scholars out there point me to a discussion of the exceptions clause in Article III and why it would or would not affect the Court’s ruling in Marbury v. Madison? I can think of ways to argue this issue back and forth, but I’d like to read some professionals kicking the issue around.
As the robot uprising of 2004 continues, it has taken a new and violent turn. Though the rebellion of American automata began with a peaceful protest of a variety of robots in Maidson, WI, it has now spread to other regions of the country, where it is being led by a new, charismatic, and militant leader known as Robosaurus.
At his appearances, the fire-breathing Robosaurus commonly destroys automobiles (pictured above), and he also has been known to seize and dismember planes (right), raising the total damage inflicted in one of his appearances from thousands to hundreds of thousands of dollars.
Most disturbingly, Robosaurus appears to have reproduced asexually. A “baby robosaurus” was recently spotted at one of the creature’s events (left), bringing the prospect of a national infestation of similarly destructive robots.