I’m Risa Goluboff, welcome to admitted
students weekend at UVA. Congratulations on your admission.
I’m sorry we couldn’t do more about the weather but if you don’t leave till tomorrow I think it will be better. We’re so happy to have you here and I hope that we have you here for much more time than just these couple of days. I thought I would tell you a little bit about myself, talk about some background to the case and then go through the case. And it’s a challenge for me to limit myself to 45 minutes. I usually am in favor of discussion sort of flowing and — and when that happens I
can just go to the next class period but here you all are going to go off to the
Supreme Court alumni reception — which you should do —
but I’m going to try to finish because if you don’t finish this whole thing is for naught.
Okay, about me: I’ve been teaching at UVA for 13 years. I am originally a northerner so if you have
questions about moving to Charlottesville from the Northeast I can answer them afterwards. I got my bachelor’s degree at Harvard, I got my law degree at Yale and I got my PhD in history at Princeton. It didn’t sound quite that awkward when I
did it all. I have also taught at NYU and Columbia as a visiting faculty member so there are a lot of institutions that I know a fair bit about and I’m happy to share my views about them also after we finish here today. I clerked for Judge Guido Calabresi on the Second Circuit and then for Justice Steven Breyer at the Supreme Court before I came to teach here.
Here I teach first-year constitutional law. Marbury is the first case we do.
I’ll talk about that a little bit more in a minute. I teach civil rights litigation.
I teach various civil rights history classes and other classes on legal and constitutional history. I am a legal and constitutional historian.
That’s how I combine my JD and my PhD. I also teach the J.D./M.A. joint degree program.
I run that here so if you’re interested in that you should come see me about that
I’m currently at work on a book about the social movements of the 1960s, policing and constitutional law and how it changes. I recently came up with a title for it so I’m going to tell you my title. It’s called — you don’t know this yet, sorry — it’s called “Vagrant Nation: Police Power, Constitutional Change and the Making of the 1960s.” That’s good, right?
You want to read that book, right? Okay, good, all right.
My first book was called “The Lost Promise of Civil Rights: and it was about Brown v. Board of Education and the conceptions of civil
rights before Brown that kind of disappeared with that case. The last time I did this mock class, I did it last year and I taught Brown. Obviously that’s more of my specialty and that’s why I taught it but I found it difficult, partially because, as you’ll see when you actually read Brown in law school, it’s not a particularly well reasoned case. And so if you want to get a flavor of what a class looks like it’s not the ideal one. And also, because it’s my area of expertise, I found it really hard to both do a regular class and talk about the things I’m really interested in. And so I decided to go straight this time doing Marbury. It’s the first case I teach.
There is a day of introductory material
before it and obviously law students have had a whole semester before they get to it because comm law is a spring semester class but, in terms of common law, you all are in the same boat as my first-year constitutional law students are when they read Marbury and so that seemed pretty perfect.
The other reason I chose Marbury, and I hope this doesn’t — I had more students when I taught Brown,
just so you know, I don’t know if they’re all with Anne Coughlin doing Lawrence or secretly watching the ballgame but — but — but I will say I worry that it’s because Marbury is really opaque and hard to read. And part of why I chose it is because it will show you how we professors add value, right? Because you have no idea what that case means if you try to read it and here I’m going to unpack it for you and show you how cool it is and how brilliant Chief Justice Marshall is. The reason we read this case first in common law is because this is
the case that creates judicial review and judicial review is the whole
ballgame in constitutional law, right? Why is it that these nine unelected judges get to strike down laws passed by democratic majorities? That’s the big question.
In fact, that’s a big question for all your
classes: thinking about the role of the judiciary.
So this case is a really big, really important case that structures most of common law and I will — I will show you why.
Yes I will show you. I’ll leave it at that for now.
Okay, so here’s the background to this case that you may not have gotten from the excerpt I gave you in your books. The election of 1800, shortly after the framing of our republic, was pretty nasty. Thomas Jefferson was the Republican: he liked small government. He wanted the power to be in the states, more decentralized federal government. He is elected.
John Adams — who is the incumbent Federalist president in favor of big centralized power — he is defeated.
the Federalists and Republicans had feuded all throughout the 1790s and this election seems like the end of the world to the Federalists. They think the country is just going to go to pot now that the Republicans have come in, it’s all bad. Now Thomas Jefferson is not slated to take office until March of 1801 after the election so in the interim period John Adams and his Federalist cronies do a bunch of mischief. Some of the mischief they do has to do with restructuring the federal judiciary and putting in lots of new federal judgeships and stocking them with good Federalist judges as well as creating 42 new justice of the peace commissions. One of the people who is given a justice of the peace commission is poor Mr. Marbury who is the plaintiff in this case. Now, John Marshall — you may notice in your case John Marshall is the
author of this opinion — he is the Chief Justice of the Supreme Court when this opinion comes down. John Marshall was Secretary of State under John Adams and it was his job to deliver the commissions for the justices of the peace. Now, somehow — we’ll see how — Marshall did not deliver Marbury’s commission,
right. Didn’t get delivered. Marbury — he wants his commission, that’s what this case is about. Now the Republicans, unsurprisingly, are pretty pissed off after the Federalists are having their fun. They repeal the Judiciary Act that expands the judiciary and gives all
these new judgeships. They also eliminate the 1802 term of the Supreme Court. They say you can’t meet this term because they don’t want the court to decide the case that eliminated those judgeships, whether that was constitutional or not. And Jefferson refuses to deliver the commissions that were undelivered and
Marbury doesn’t get his commission. He tells his secretary of state, James
Madison, who is the defendant here — Marbury vs. Madison — not to deliver those commissions.
So when the new term starts in 1803 one of the first cases of the term is Marbury’s claim that his commission should be delivered. That he should get to be a justice of the peace.
Now in the meantime — this is going to blow your minds —
John Marshall is appointed chief justice of the Supreme Court. And for a month he serves as both secretary of state and chief justice of the Supreme Court. Yeah, how do you like that?
That’s crazy, right? That tells you a little something.
That’s the historian in me, right? This is a different legal culture than our legal culture if that is okay at all, okay. So here’s where it gets really interesting: he presides over the trial at the Supreme Court as chief justice where the question is what happened to Marbury’s commission. He knew but he was not called to testify, right, he did not testify about that, okay? So this is high, high drama right?
High, high drama. Now, wait to see the outcome.
There’s a lot of irony here. All right let’s talk about the case on page 25 of — that I gave you — right, there, they didn’t take that page number off did they?
Because that’s going to kill me. Good, okay, so one difference between this class period and my usual class periods is that I don’t expect I will tell silly
anecdotes about my children although you never know. But a second difference is I will not cold call you which I do in mine. I call you mister and miss — I’m very formal. You can see I’m so formal, but in that sense I’m a hard-ass. Okay, so I will not call on you.
So does anybody want a nice easy assignment? Read the first sentence of the case.
Raise your hands, I’ll call on you. Raise your hand, all right, go ahead.
Tell me your name just so I have it. Ms. Hedges.
All right Ms. Hedges. See? I’m going to go there anyway.
I can’t not do it. I don’t think I’d feel like a professor.
I’ve been doing this for 13 years. I don’t think I would feel like —
if I didn’t say Ms. Hedges. Okay, Ms. Hedges,
so the case starts — it’s not right at the top, you know, that’s it okay.
Where it starts, read that first sentence. What does that mean?
Oh, see, I said it was an easy question. And now, all of a sudden, I’m going to
lead you down the primrose path. So what does that mean?
What does that sentence mean? What — what is the last term?
If you start at the beginning — there, at the last term, what is that here?
We don’t know. He is — he’s talking about in 1801, right?
Because there was no 1802 court session, okay. The affidavit’s then read and filed with the clerk.
a rule was granted in that case. Any idea what does that mean?
So, here’s the thing: that’s what we would think, right, in law school.
The rule is going to be the whole thing here. We’re talking like you know early 19th Century —
the rule is an order. An order was issued — an order was issued to show cause, right, for Madison to defend himself as to why
a mandamus should not be issued, Why this writ ordering him to deliver the
commission should not be issued. Now, at the beginning of the next sentence he says no cause has been shown and the present motion is for a mandamus.
The peculiar delicacy of this case. Now, no cause has been shown.
Guess why. So, Marshall was there and he doesn’t testify and Madison — Secretary of State Madison —
he doesn’t show up at the trial to defend himself. Now, the Supreme Court does not have a lot of power at this time. In fact, Justice Marshall was not Adams’s first choice for a chief justice. At this moment, lots of people are saying, “I don’t want to be a justice on the Supreme Court. It sucks. They have no power.
They have to ride circuit. They had to ride all around the country on terrible roads with horses and sleep in crappy flea-infested inns while they were hearing cases. Not a good thing.
So it was very low prestige, which is hard for us to imagine.
And you know who changes that — you know what changes that: John Marshall — this case!
How many of you have ever been to the Supreme Court? Have you visited the Supreme Court?
Raise your hand. Okay, now did you just see the upstairs or did you go to the downstairs? Did you go to the downstairs part where there are, like, exhibits and stuff?
Any of you? Did you see huge white marble statue of a guy sitting in a chair like this? Guess who that guy is: John Marshall.
Guess why he gets the big chair: this case. I mean there are others, too, but this case gets him that. And if you read what’s on the walls:
there are all these quotes from John Marshall, a lot of which come from this case.
Okay, Madison didn’t even show up. Didn’t show up to the trial to defend himself.
That would be the peculiar delicacy of the case, right, he didn’t even feel it necessary. Okay, at the end of the day Ms. Hedges, is Marbury entitled to be a justice of the peace? Is he going to get his commission? No.
Excellent. You did awesome. Okay there are three questions in this case and here’s the nice part, right it’s — it’s all opaque and then they’re right there: blocked out, indented, right, there are the three questions of the case: first, does Marbury have a right to the commission?
Everybody all together, yes or no, does Marbury have a right to the Commission?
Good, okay, that’s an easy question, right? Let’s see how confident you get as we go on, okay. Second, does Marbury have a remedy for this violation of law, yes or no. Awesome. Do you know what it’s called?
Good. Okay he gets a writ of mandamus. Third, can this court order a mandamus, yes or no.
No. Okay, so we have a yes, a yes
and a no. The no is “this law is unconstitutional and I — John Marshall — I’m going to strike it down.” Right?
Okay, all right, so let’s quickly go through one and two so that we can — well, yeah.
Let’s quickly go through one and two so that we can get to number three. All right, so the first question:
does Marbury have a right to the commission? Somebody new.
Just so you know, people get used to raising their hands, very important. No one else? I’m gonna have to go back to Ms. Hedges.
That’s so wrong. She was so brave.
Okay, tell me your name. Radowsky. Okay Mr. Radowsky, why does he have a right to the commission? Good, okay, so did Marshall — who was, by the way, the secretary of state, right — remember that, okay?
Did Marshall think that the commission only became legally binding Once it was delivered?
No. He didn’t think it was necessary to deliver it. He thought it became real when at what point in the process? When the seal was affixed, signed and sealed.
That’s why he didn’t deliver it. He didn’t think it mattered, right, as a legal matter once it was signed and sealed, it was all set. Now, he sort of created his own mess, right. All you had to do was deliver the friggin’ thing. Although, you know, you never know what would have happened had he done that. Okay, and this is based on —
Where did you get that answer from? What’s it based on?
That it — all it took was signed and sealed in order for it to become — is it based on the Constitution?
Is it based on his own ideas? Of the? Nice, okay, and I do that to my other
students, too, so don’t think I’m like pandering to you, okay? Um, the statute, right?
This is what the statute says: “this is how you become a justice of the peace.”
That’s what it says. That’s what he’s reading — open and shut.
Totally fine. Okay so that’s number one.
Does he have a right? Yes he has a right. Okay, question number two: does Marbury have a judicial remedy? And Marshall says of course he has a judicial remedy. For every right there’s a remedy.
I’m sure even though you’re not in law school yet you’ve heard that said. It’s not really true.
It’s not really true, right, and in fact, Mr. Radowski has already mentioned the kinds of circumstances under which it might not be true: circumstances under which there’s unreviewable discretion, right? You might have —
there might be someone’s choice to give you something or not give you something and then you’re not going to have it. Well — well, let me take that back.
I — I mixed two things together. Those aren’t necessarily the circumstances under which you don’t have remedy. There are circumstances under which you don’t have remedy. Trust me, we won’t get into them now but in addition to having a legal right — a legally vested right with no remedy. There are also circumstances where you don’t have any right at all, right? So what if Marbury had given lots of money to Adams’s campaign and he really thought he was going to get a justice of the peace commission and Adams decides that somebody else gave him more money or he likes them better and he doesn’t even give him the commission? Does he have a right to that commission? Could the court do anything about that? According to Marshall, no.
That is the kind of unreviewable discretion vested in the political actors, right?
Vested in the president and the executive, right? So what’s the difference between a reviewable — when I say reviewable, who do I mean is going to review it, the courts? Exactly right.
A decision reviewable by the courts because it’s a legal right and a decision not reviewable by the courts because it’s a discretionary act, right? That means: so if there are political decisions that the president or people
acting for the president are making for themselves,
those are not going to be reviewable, right? Those are not duties created by law.
This duty was created by a law. A law said Marbury gets this commission and the law also said he gets to keep it for five years once it’s signed and sealed. Would this be the same case, Mr. Radowsky, if it said he gets to be justice of the peace at the pleasure of the president? No, because then Jefferson could come in and kick him out, right? He wouldn’t have a vested right.
But because it said a term of five years, he’s got a right to this for five years, okay? Because he has a right to this. It’s reviewable and the court can impose a duty upon Secretary of State Madison, who took Marshall’s place, to give this justice of the peace commission to poor Mr. Marbury, right. Okay, this distinction between discretionary political acts and non-discretionary legal rights that become duties is an early instance of what’s going to become called “the political question doctrine.” The political question doctrine is the idea that certain questions are committed to the political branches and are not for judicial review.
Presidential pardons, for example. Impeachment proceedings, right?
These things are committed to those branches and they don’t — they aren’t reviewable by the judiciary. There are a bunch of reasons why you can think about that: some people say that you — you —
the political question doctrine exists to
protect the court, right? Because if the court gets involved in those kinds of explicitly, avowedly political debates and conflicts, it’s going to lose its legitimacy.
It’s going to lose a vision we have of it as neutral, right? As a neutral legal arbiter. Some people say the reason we have the political question doctrine is because some decisions are uniquely suited for the other branches, right?
That’s who should be making those decisions. We’re going to come back to decisions uniquely suited for particular branches in a minute. And some would say they need to be actually freed from interference, not just the appearance of legitimacy but they
— the judges — need to be freed from politics and need to be freed from the interference of politics in order to do their job. Now, when I say there’s no remedy for certain things like unreviewable discretion or no rights, it doesn’t mean that there’s no remedy at all.
It means there’s no judicial remedy, right? There are political remedies for all these things:
you vote people into office, you vote them out of office, right?
You make known your political disagreements with them. The president can veto if they don’t like what the legislature does. The legislature can impeach various people, right? So the reason why — just to be clear —
why is there a remedy here, Mr. Radowski? You already said it, we’re just reviewing. Exactly, yeah Marbury, right. Exactly.
So under the statute he had a vested right. He had a vested right and that means
Madison has a duty to remedy the violation of that right, right? He has a vested right and when there’s a vested right like that then there’s a duty. There’s no discretion on the part of Jefferson and these Republicans to
decide, “we’re not going to give him his justice of the peace commission.” They have to do it. That’s how it goes, okay?
So, in question two, Marshall has already started earning the big statue in the big chair, right? Because in question two, what does he say? He says there are times when the court can review the actions of the executive branch, right? There are times — now he acknowledges —
there were times when it can’t — who do you think gets to decide when the court can and when the court can’t? The court! Oh, my god, imagine that! The court gets to decide when it can review executive actions and when it can’t. Okay, so here’s the first aggrandizement of judicial review, the first aggrandizement of the court’s power. We get to decide when the federal government owes a duty and we get to say what that duty is and whether it’s going to be imposed, alright. Third and final and most important question: is Marbury entitled to the remedy he seeks — what remedy was that again? Mandamus, right.
A writ of mandamus is the remedy and what’s the answer to that, again?
Okay, there are two parts to that question. The first part of that question is:
did Marbury ask for the right writ? What’s the answer to that, yes or no?
Yes, he asked for the right writ. Look at the statute on page 29.
On page 29 in the footnote — there at the bottom — “The Supreme Court shall also have jurisdiction” — dadada — “And shall have power to issue writs of mandamus. And cases warranted by the principles, usual law to any courts appointed or persons holding office under the authority of the United States. Is Madison — Secretary of State Madison —
a person holding appointed office under the laws of — Nice, ok, so he is —
he has a duty. He has a writ of mandamus issued against him by the court to fulfill that
duty, ha, so now we get to the big question:
why then does poor Marbury not get his commission, Oh look at that!
People are raising their hands! Yes, tell me your name — Katie King —
alright, Ms. King, why doesn’t he get it? In one sentence — that is the right sentence.
Ding-ding-ding, right, the statute is
unconstitutional. Oh, talk about the big chair.
Right, okay, we’re going to get there again in one second — the statute is unconstitutional.
Now this is something that my first years do know and you all don’t know: if the statute is unconstitutional,
then there is not what we lawyers like to call subject-matter jurisdiction for the court to hear this case. You’ll learn about that in Civil Procedure. There is no subject matter jurisdiction now. Usually what you would learn in Civil Procedure is the first question you ask in a case is whether there is subject matter jurisdiction. Then the court can’t answer any other question.
Marshall shows himself to be a bit of a scoundrel here. We can’t assume he doesn’t know that rule, although as not a scholar of Civil
Procedure, maybe that canon was not in place at the time, I couldn’t answer that 100%, right? But why do you think he doesn’t answer that question first? Because he wants to answer the other questions, right? He wants to say we get to review executive branch functions. So, he’s done that and now he moves on and he asked this question about constitutionality, all right? Why does he say — now we’re getting into like, the really tricky bits — why does he say, Ms King, that this statute is not constitutional? Precisely. That’s exactly right, okay?
Now will you read — will you read what’s on there? Okay, is there anything up there that you notice? That’s a little bit different from the quotation of Article Three of the top of page 29 in your books? What’s different between Marshall’s quote of Article Three and the actual Article Three? Tell me your name —
Okay, Mr. Rosenberg, what’s the difference? What — which clause — tell me with such — except Congress gets to make exceptions. Why doesn’t he — why doesn’t he mention that? He’s such a scoundrel. He — he quotes —
he doesn’t quote what that actually says right? Now, this is not necessarily an airtight reason why this Judiciary Act of 1789 is constitutional, right? Because it’s possible — tell me this if you agree: it’s possible that the Exceptions Clause only applies to the Supreme Court’s jurisdiction. You all see that, right?
It comes after in all the other cases before. So the first sentence is about original jurisdiction, the second sentence is about appellate jurisdiction: “With such exceptions might only modify the Supreme Court’s appellate jurisdiction.” So, maybe Congress can give it more appellate jurisdiction but not more original jurisdiction. But do you think that’s airtight, Mr.
Rosenberg? Not necessarily, their punctuation was all crazy back then. I don’t know if you noticed that, right, their punctuation in the Constitution. Like there are commas and periods in all different places. It may be that the “with such exceptions” modifies both appellate jurisdiction and original jurisdiction and, in fact, if Marshall really was convinced that it didn’t do that, don’t you think he would have quoted it, right? Because it wouldn’t made him so nervous that he had to play fast and loose with the language of the Constitution in this really seminal case — it’s a really important case, okay? So that’s one reason why maybe Marshall isn’t so correct, right? Maybe Marshall isn’t so correct.
Now, there’s a second reason why Marshall might not be correct. Anybody have any ideas what other —
what other way could you think about this? Yes, tell me a name. Batista, Mr. Batista. How so? I see, so you think that’s like a savings clause, right?
Like, eh, this is a little unconstitutional Then don’t — just ignore what we said.
So that’s totally possible. That’s totally possible. That — that’s what they meant.
There’s another reason — I’m going to put this out there — tell me what you think — which I
thought you were headed toward — if I were to say to you, Mr. Batista, I’m going to give you a bag of potato chips, Mr. Rosenberg, I’m going to give you a
chocolate bar and I’m sorry, the chocolate bar’s so much better.
You might disagree but that’s why we have, you know, different opinions in the world.
But — but I’m going to give you a chocolate bar. I’m going to give you a bag of potato
And I give you each of those and then I also give Mr. Rosenberg a bag of potato chips, have I violated the first statement that I made?
No, I haven’t. I’ve given them both what I said I would give them but I gave them something else as well, right? So what you could say about Article Three is:
this sets a floor, right? At the very least, in those first set of cases,
Congress has original jurisdiction and in the second set of cases —
sorry, the Court has original jurisdiction. And in the second set of cases the Court has appellate jurisdiction. But there’s nothing to say that Congress can’t later give the court appellate in the original circumstances or original in the appellate circumstances —
what it can’t do is take it away, right? So you could say, that’s a floor but not a ceiling. Have I convinced any of you that
Marshall’s reading of the Judiciary Act of 1789 is not necessarily cut and dried? In the way that say a 24-year old running for Congress when it says you have to be 25 would be. Or, for example, the examples that he gives about treason and not having enough witnesses, right. Is this that kind of inconsistency between the statute and the Constitution — that it’s totally a hundred percent obvious that there’s a conflict here? Some of you are shaking your heads no. Shake your heads yes or no. Is it totally obvious there’s a conflict
Yes or no. Most of you say no. Some of you are uncertain.
I think it’s uncertain. I think he’s a scoundrel.
I think he’s playing fast and loose with this language. Now, here’s the question:
why is it so important to him to say that this law is unconstitutional? Right, yes. Oh, there you go.
Talk about scoundrel, right. Talk about both scoundrel and brilliant.
That is exactly right. Here’s the advertised part of the case: this law is in conflict with the Constitution and when a law is in conflict with the
Constitution we, the Supreme Court — big statue —
get to strike down the law. This is the first time in American history that the Supreme Court strikes down
federal law passed by Congress. You know what the second time is? Yes, that’s crazy, right. Dred Scott.
That’s crazy. Okay, anyway, back to this case. So, the reason we read this opinion has very little to do with poor Mr. Marbury and his justice of the peace commission and it has everything to do with the construction and justification of
judicial review. There are two parts to Marshall’s argument: one part of the argument is about the Constitution itself and he argues that the Constitution is supreme, right? Where does that come from?
It’s got some answers: the Supremacy Clause, right? Although it’s not clear in the Supremacy Clause, the Supremacy Clause says that the Constitution and laws promulgated under it are supreme.
Federal laws promulgated under it. But he says that the Constitution is supreme.
He says the Constitution is supreme because why else have a Constitution unless it’s supreme, right? What’s the point of a Constitution unless it’s enforceable. There are constitutions around the world that are not enforceable by the judiciary. There’s legislative constitutional supremacy, there are also constitutions with hortatory clauses, right, that say, “This is what we should aim for.”
And that aren’t enforceable in a court of law. So some people might disagree with Marshall that there’s no point to a constitution unless it is the supreme law of the land but that’s what — That’s what he says.
Okay. So he says the Constitution is supreme and the Constitution can trump democratically passed laws, right, because the Constitution trumps it.
But then the question is: how does the Constitution speak, right,
in what way does the Constitution trump those laws? And this is the second big point he makes on his way to judicial review: who gets to say what the Constitution means?
Everybody. All together. The court gets — are you shocked?
Remember the big chair, right. That’s why he gets the big chair: the court gets to interpret the Constitution
as against the interpretations of the other branches of the federal government. Now, he’s got a whole bunch of arguments as to why the court gets to
have judicial review. He’s got some pretty flimsy textual arguments about that. All cases arising under the Constitution.
Well, there are a lot of cases. It doesn’t necessarily mean you get to strike down laws made by the legislature. All cases kind of proves too much because not all cases actually do get a judicial review in the federal courts. They take an oath — the justices —
they take an oath. Does anyone know, who else takes oaths?
Everybody! Everybody who works in the government! They all take oaths! All the law officers take oaths. So it’s not special that they’re taking oaths.
But he acts as if it’s very, very special. None of that really says who decides what the Constitution means, right. And at the end of the day those aren’t his real arguments. His real argument is about what branch of government is best suited to interpret the Constitution. And what branch of government is that?
The Court, the judiciary, right. He said is — it is emphatically the province —
emphatically the province of the judiciary to interpret the Constitution.
The task of judging is one that lawyers who become judges are supposed to do. And he links here the existence of a written constitution and supremacy of a written constitution with the task of judging. Why does a written constitution matter?
Why is it so important to him that we have a written constitution and not, like England, an unwritten Constitution.
Why does that matter? If you want to say judges are the ones who should interpret the Constitution, somebody new? okay, so there’s — there’s lots of a separation, right? Other reasons, exactly.
Other reasons? They need words to interpret.
You have a constitution. It’s written down and you have a law.
It’s written down and you lay them side-by-side and you compare the written words, right?
This is what lawyers do. They read words and they interpret is what we will do three years from now, right. You’ll graduate and you will read words and interpret them. What else do words do?
They constrain, right? So if you’re worried — if you’re worried that giving judges judicial review is going to just let them run rampant over the democratic process,
let them just do anything they want to do. Well, a written constitution doesn’t do that. It’s constraining. Now I see some of you already have amused looks on your faces because you’ve already concluded that’s exactly what the court does.
But you have to hold that in abeyance for some parts of constitutional law, not all.
But I see it as my job to instruct you in that kind of cynicism. You shouldn’t arrive already cynical, right? And, okay, so Marshall says there is a written constitution and we have a written law
and you put them next to each other and if they conflict the Constitution wins.
Now, the way he describes it, as I said, is as if there’s a clear violation of the Constitution here — which I’m not so sure there is —
but he wants it to look like that there’s one kind of argument that is conspicuously missing here and it’s a historical argument.
Marshall does not argue that historically speaking we know judicial review was contemplated or the framers thought that there would be judicial review and in fact — and perhaps this is why he doesn’t discuss the history — the history is mixed and it gives him mixed support. It is true that some form of judicial review was contemplated by many of the framers at the founding of the Constitution.
It’s discussed at the convention. It’s discussed by Alexander Hamilton in Federalist Paper No. 78, one of the more famous Federalist Papers, but it’s not free from doubt. One of the reasons it’s not free from doubt is it’s not in the Constitution. It’s a little weird, right.
If they contemplated that it would be in the Constitution. If they contemplated that it would exist.
Why wouldn’t they put it there? You may recall from fifth grade civics that we have a government of checks and balances, right, the other checks are in the Constitution.
What are the other checks? What kind of things?
Yeah, veto power, the impeachment power, confirmation of nominations and approval
of treaties, right? Those are all places where one branch interferes with the workings of another branch, right? The veto powers.
The president inserting himself into the legislative process, all those other checks are in there,
why not put judicial review in there? Especially since there was a judicial review of this sort in England. So if you know the background conditions are such that it’s not expected, you expect it, you should write it down. I mean one could say, right,
there’s a — there’s a fancy Latin phrase. Anybody know the fancy Latin phrase for if it’s not written down and other things are written down? Then it’s not, you shouldn’t assume it’s there.
Fancy Latin phrase: expressio unius est exclusio alterius.
The expression of one thing excludes others, right? So if you put the veto power in there and impeachment in there, you don’t put judicial review, maybe you didn’t mean for judicial review to be there. Alternatively some historians have argued that the framers did contemplate judicial review but they only contemplated in really obvious, horrific circumstances: when the conflict between a law or presidential action is so clear that it can’t possibly correspond to the Constitution, as I tried to convince you,
although you didn’t all seem convinced, but that’s okay, I’ll have another shot next year once you’re here for real. This is not one of those cases this is not one of the cases where it’s so obvious that there is a discrepancy between the Constitution and the law.
There are also some historians who suggest that popular sovereignty, not judges, would provide for judicial review. That it was the people themselves who would find ways of articulating that something was unconstitutional and therefore could not stand.
so when we — and I didn’t ask your name, what’s your name? Peter Bell, okay, when Mr. Bell says he created judicial review, and I say yes, he created judicial.
He didn’t create out of whole cloth. It’s not like he made it up from nothing.
There was precedent there was some reason to believe it might be but he created judicial review, right.
He still created, and not all together, but it wasn’t contemplated necessarily in exactly the way that Marshall exercises it and that’s why Marshall gets a big chair in the Supreme Court, right. That’s why he gets his quotes on the wall.
He is the one who made the Supreme Court the powerful institution that it is, okay.
Remind me, everyone, who won this conflict, Marbury or Madison? Good answer, okay?
In the case itself, who won the case? Madison won the case, okay.
But here’s the weird thing, right. Why does Marshall go to such lengths to strike down this law? We have one answer one answer is he wants to create judicial review but
there’s another answer. There’s a political answer.
What’s the other answer? Tell me your name.
Is your second class with me, you’re cheating. Argent Chinoy, Mr. Chinoy Exactly.
Did Madison even show up at the trial? Madison didn’t even show up at the trial.
If Marshall sits there and says he has a
vested right mandamus is the right remedy and you
have to give it to him. Does he think Madison is going to listen?
Hell no. Madison’s not going to listen. He has no power.
John Marshall has no power. He doesn’t have the power of the purse.
He has no money to spend to make Madison do this. He doesn’t have the power of the sword.
He has no enforcement power separate from the executive branch. That’s who Madison is, the executive branch.
If Marshall says something, the only way he can get anyone to do it is to persuade them to do it because he has to rely on the other branches for money or power or both and he doesn’t think that’s going to happen, right, so Marshall is not only aggrandizing the Court’s power, he’s doing so in a circumstance where he doesn’t test it. It sits on the books for 50 years until the eve of the Civil War, as power rather than —
we asked him to do something and he didn’t do it and now he lost even more power, right?
It’s totally brilliant. Marshall establishes, number one,
that the executive branch can be reviewed by the Court — actions of the executive branch.
Number two: that the judiciary can also review laws passed by Congress. Judges are the authoritative interpreters of the Constitution. And he greatly expands the power of the Court while avoiding its exercise. Totally brilliant, right. Totally brilliant.
Ok, did I add value to that case? To that boring, boring case?
Okay, was it worth — okay. I hope it was worth, okay.
So let me just say one last thing. It’s not only that this case begins most constitutional law classes and it’s not only that this case is why Marshall gets the big chair, it’s also that this case raises all the big questions of constitutional law going forward: is judicial review justified?
Right, that’s the big theoretical question underlying all of constitutional law.
Is it justified for nine unelected judges to strike down democratically passed legislation?
And that in turn involves three other big theoretical questions: who interprets the Constitution?
Is it just the judges? Do other people? Do other branches of government? Do other regular people in the world like you all? Two: how should you interpret the Constitution?
By the text? By the history? As a living document?
As a matter of protecting political processes? As a matter of natural rights?
There are all kinds of ways you can interpret the Constitution. And three: what is a constitution anyway?
So, with that, I will leave this and if you want answers to those questions you’ll have to wait until next year and even if you come and you get me and you do this again, I’m still not going to answer those questions. Thank you. I’m happy to take questions —
although it’s just about five o’clock — but I’m happy to stay after if people have questions that they want answered. Thank you.
Enjoy the rest of your time.