Author: Jimmy Akin

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.

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.

. . . I shall achieve in time:

To let the punishment fit the crime

The punishment fit the crime.

—The Mikado

I had mixed feelings reading this story, which reveals that one in 75 American men is in prison. On the one hand, I’m very much in favor of strong sentencing laws, and the crime rate is down. If figures like that are really needed to control the crime problem, I don’t have a problem with it.

On the other hand, I’m not convinced that chucking people in prison is always the best way for malefactors to be punished. Corporal punishment is an alternative to prison that has served many societies well and is less harmful to a person’s ability to lead a productive, law-abiding life after punishment than prison is. Some countries that use it have fewer people in prison and also have lower crime rates (remember the whole Singapore caning controversy from a few years ago?). Prison, by contrast, tends to serve as simply a school in how commit further crimes and that hardens criminal in a destructive lifestyle.

I also have a basic desire to see justice be done, and this means that the punishment must fit the crime. For some crimes, punishments are presently waaaay out of whack with the actual harm caused by the crime.

A few years ago I was making a pilgrimage to the Holy Land, and on the flight to Tel Aviv the stewardesses (who were remarkably surly with the passengers–to the point of unprofessionalism) began threatening the passengers with $50,000 fines for lighting a cigarette outside of the smoking area. I’m sorry, but no matter how much one may oppose smoking, the idea that lighting a cigarette in the non-smoking section does $50,000 worth of damage to the community is simply crazy.

A similar area where the punishment is way out of whack with reality is in copyright law. Punishing offenders who are pirating copyrighted works for sale is one thing, but hitting people with $540,000 law suits because their daughters downloaded a few songs from the Internet for private use is similarly bonkers. The songs themselves would cost a few dollars, and even magnifying the fine for the bad example set by the offending daughters setting a bad example for others, one still comes nowhere near the kind of life-ruining damage done by the potential fine. The punishment is simply incommensurate with the offense and thus unjust.

As long as whacko special interest groups are able to get legislation like this passed to protect their interests with the threat of massive retaliation, though, I don’t see this changing.

. . . I shall achieve in time:
To let the punishment fit the crime
The punishment fit the crime.

—The Mikado

I had mixed feelings reading this story, which reveals that one in 75 American men is in prison. On the one hand, I’m very much in favor of strong sentencing laws, and the crime rate is down. If figures like that are really needed to control the crime problem, I don’t have a problem with it.

On the other hand, I’m not convinced that chucking people in prison is always the best way for malefactors to be punished. Corporal punishment is an alternative to prison that has served many societies well and is less harmful to a person’s ability to lead a productive, law-abiding life after punishment than prison is. Some countries that use it have fewer people in prison and also have lower crime rates (remember the whole Singapore caning controversy from a few years ago?). Prison, by contrast, tends to serve as simply a school in how commit further crimes and that hardens criminal in a destructive lifestyle.

I also have a basic desire to see justice be done, and this means that the punishment must fit the crime. For some crimes, punishments are presently waaaay out of whack with the actual harm caused by the crime.

A few years ago I was making a pilgrimage to the Holy Land, and on the flight to Tel Aviv the stewardesses (who were remarkably surly with the passengers–to the point of unprofessionalism) began threatening the passengers with $50,000 fines for lighting a cigarette outside of the smoking area. I’m sorry, but no matter how much one may oppose smoking, the idea that lighting a cigarette in the non-smoking section does $50,000 worth of damage to the community is simply crazy.

A similar area where the punishment is way out of whack with reality is in copyright law. Punishing offenders who are pirating copyrighted works for sale is one thing, but hitting people with $540,000 law suits because their daughters downloaded a few songs from the Internet for private use is similarly bonkers. The songs themselves would cost a few dollars, and even magnifying the fine for the bad example set by the offending daughters setting a bad example for others, one still comes nowhere near the kind of life-ruining damage done by the potential fine. The punishment is simply incommensurate with the offense and thus unjust.

As long as whacko special interest groups are able to get legislation like this passed to protect their interests with the threat of massive retaliation, though, I don’t see this changing.