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Origins of t he Power of Judicial Review
 – The power of the courts to review legislation todetermine if it’s consistent with the Constitution.
Art III, § 2, Cl. 2 – “
The judicial power shall extend to all cases , . . . arising under this Constitution. .. . In all Cases [where state is a party or affecting foreign officials], the supreme Court shall haveoriginal Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellateJurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as theCongress shall make."
 Marbury v. Madison
(1803) – power of judicial review to declare acts of Congress uncon'l.
Background : The incumbent federal Adams lost Pres election of 1800 to Jefferson. Right be4end of his term, Adams appoints a bunch of federalist judges. Marbury’s commission is signedand sealed, but it’s never delivered (by Madison, secretary of state). Once he took office,Jefferson tells Madison not to deliver the commission. Marbury sought a writ of mandamus toget the commission delivered. [Took a long time to hear the case b/c Congress suspended theSupreme Court for a term – Art III, Congress can regulate Judiciary (but not tell them how todecide)].
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st
Issue : Is Marbury entitled to the commission? Marshall says yes, the Pres granted it to himvia an act of Congress (Organic Act). His right was vested once it was signed and sealed.
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 Note: but it was never delivered – Prob Marshall does this so he can get toJudicial Review.
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Issue : Does Marbury have a remedy at law available? Marshall says yes, the essence of civil liberty is that there is redress to every denial of a legal right.
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Prof says not always true – but again Marshall prob says this just to get to judicial review.
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Issue : Is Marbury entitled to the remedy he seeks? – Yes.
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 Nature of the writ of mandamus – an order to compel a lower ct or govt official to dohis duty. Madison has a duty to deliver the commission. Since it was signed & sealed,it’s vested, so there’s a legal duty here. Therefore writ of mandamus is a proper remedy.
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 Note: Pres doesn’t like this – ct is undermining authority of executive by telling themwhat to do. But if Marshall decided otherwise, would be undermining authority of Congress. Either way, still undermining.
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th
Issue : What’s the source of the court’s power to issue the writ of mandamus?
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The Judiciary Act 1789, § 13: “"The Supreme Court shall also have appellate jurisdiction [from lower & state courts], in the cases herein after provided for; andshall have power to issue . . . writs of mandamus .. . to any courts appointed, or  persons holding office, under the authority of the United States."
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So, Judiciary Act is interpreted to mean that since Marbury is person holdingoffice under authority of U.S., this give SC power to issue the writ. Interpretedto mean that this is a source of original jurisdiction.
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But there are other possible ways it can be interpreted:
“Appellate jurisdiction”- so court has jurisdiction to hear a writ under appeal.
This is an available remedy only when the SC would otherwise have jurisdiction.
 
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If read this way, court would need to still have original jurisdiction. But the SC doesn’t have original jurisdiction b/c it’sonly where state is a party or in cases against foreign officials.
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But Marshall then says the Judiciary Act is unconstitutional b/c it goes against Art III,§ 2 of the Constitution, therefore, there is actually no jurisdiction per Art III, § 2.
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Art III, § 2, cl. 2 - Lists the issues for which SC would have original jurisdiction. All other cases, SC has appellate jurisdiction. Writ of mandamusnot listed there.
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But it also says “with such exception, and under such regulations as theCongress shall make.” So, Congress added this original jurisdiction in theJudiciary Act.
Marshall says that Congress can't do this. If drafters had intended thatCongress could add original jurisdiction of SC later, they wouldn’t havelisted specific instances of original jurisdiction. Marshall is interpretingit as setting a ceiling to the SC's original jurisdiction. An affirmativegrant implies a negative of what’s not granted.
However, prof points out differing interpretations:
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The list of original jurisdiction written out to set a floor (min) of when SC has original jurisdiction – guarantees these powers.Prob here is it may allow Congress to give SC too much work todo – SC becomes overwhelmed & may impinge on SC's power & destroy its authority.
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Distribution for court to follow, but Congress can change it.
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 Note: Judiciary Act written by drafters of the Constitution, so it’s most likely notunconstitutional. More likely that Marshall read the Judiciary Act wrong.
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Issue :
Can the court declare an act of Congress unconstitutional?
So Marshall explains judicial review. So the question is WHO DECIDES whether an act of Congress isunconstitutional. Marshall makes six
arguments in support of judicial review
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Written Constitution – It’s important that we have a written constitution. What’s the point of having it if it couldn’t be enforced? Therefore, SC has power of judicialreview to enforce it.
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Prof Criticism – ok, but why the court & not another branch? WHODECIDES? It’s not clear that framers intended for court to have absolute power of judicial review b/c they gave legislature power to take away court’s jurisdiction over certain cases.
Still, if legislature had this power, may be problem b/c self-regulation.But the check would be the general public; we can vote ppl out(accountability).
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Judicial Role or duty - (textual argument) Court has a role or duty to say what the lawis, & when laws conflict to determine which law governs.
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Prof Criticism – Marshall is lumping the 2 roles of the court together as thesame thing. Just b/c there’s power of JR to act as CL court doesn’t mean thereis JR to act as a Const’l court. Roles:
Interpreting the law (acting like CL courts); fill in statutory gaps. Here,Leg can just go back & make changes (by maj vote) to the law if theydon’t agree.
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