RECAP OF MARBURY v. MADISON FROM LAST WEEK Marshall’s political objective in Marbury v.

Madison: How to push back against the administration so the Court doesn’t look too weak, but not push so hard that the court is even worse off. Rules on the merits, but then doesn’t impose a decision by finding no jurisdiction (but this defies convention since not supposed to rule on merits if don’t have jurisiction).

NEW CONSIDERATION OF MARBURY v. MADISON Ruling on jurisdiction is also useful. Marshall gives an implausible reading of Section 13…, then strikes it down under Article 3. (Quotes from Article three in CB page 33.) Structure of Article 3: Section1 is the creation of the Supreme Court. Section 2. Sets forth what types of cases the federal courts can hear. And tells something about the allocation of those cases. Rationale for the jurisdictions set out in Section 2 (International issues and disputes between states) is that the stakes are so high. Also issue of creating a hierarchy out of the states. Reading of jurisdictional power: the exceptions clause is written out of a fear of making the supreme court too weak rather than too powerful. Although sets out a minimum of areas of jurisdiction, but can be expanded on. Kramer finds Marshall’s reading of Article 3 to be weak and Marshall’s reading of Section 13 to be implausible. But Marshall uses weak Article 3 reading to strike down the implausible Section 13 reading. Marshall doesn’t strike down the Repeal Act because he knows Jefferson’s administration wouldn’t stand for it. Jefferson was furious about part I of the decision (but never had something to say about the judicial review piece). Didn’t say anything public, though, only in private letters. Conventional reading: Marshall was so brilliant by giving what Jefferson wanted while simultaneously achieving a huge power grab for the courts through asserting the right of judicial review. Marshall’s arguments for Judicial Review (beginning in middle of CB pg 34): 1. Law that goes beyond what the authority of the constitution is void… ‘since it is emphatically the role of the court to define what the law is,

Supremacy clause: constitution is the supreme law of the land “the pursuance thereof” [Kramer: but the Supremacy clause doesn’t say anything about the judiciary… does assert the supremacy of the constitution. yet mutually plausible. but not that the Judiciary is the arbiter of its meaning. The real dilemmas are over differing. Oath argument: when sworn in take an oath to uphold the constitution. rather than renouncing the constitution altogether.] 2. There may be greater public deference to the court 2. Marshall’s Text arguments for substantiating Judicial Review: a. that judicial review adheres to the notion of a constitution that limits the power of a government. Note: need a baseline for understanding ‘what the constitution means’… distinction between disagreeing with the courts over an interpretation rather than blatantly violating the constitution. [Kramer: however. [Kramer: But clearly the constitution isn’t just going to be disregarded altogether by the other branches. interpretations. everything takes the same oath in federal government.any other approach treats the constitution as a joke…’ the fact that the constitution is written makes the law more clear… if the constitution does not have the authority to limit the government. many of the claims are deeply . Kramer: whatever the argument is. OVERARCHING ARGUMENTS FOR WHY IT SHOULD BE THE JUDICIARY AND NOT OTHER BRANCHES THAT IS THE ULTIMATE ARBITER OF THE CONSTITUTION’S MEANING 1. Less vulnerable to political trends due to lifetime tenure [Kramer: But why is it a bad thing for the court’s to be responsive or the meaning of the constitution to be responsive to public opinion of the day] 3. Judicial review “arises under” the constitution. this doesn’t set the judiciary apart] c. When we talk about the implementation of the constitution over time. [Kramer: this is the most legitimate of Marshall’s arguments…] b.] Kramer: all these texts arguments still hinge on the first argument. we are looking at differing interpretations that are each plausible in their own time. then the whole point of the constitution is destroyed.

Judiciary would be overstepping their authority. in going about our ordinary responsibilities. They were rebelling because they believed that constitution was being violated. through public opposition. juries. “If an act of the legislature. repugnant to the constitution is void. Kramer: Is there a reason to believe that Americans would have abandoned that belief? No. So under this understanding of popular enforcement / popular constitutionalism.empirical that rely on how institutions operate… judicial review does not adhere to the very idea of a written constitution… there are countries that have constitutions without judicial review. how would unconstitutionality be addressed? Through punishing congress. But argument for JR: people were empowered to appoint agents to enact its will and so judges are merely acting out their role. Also notable that Marshall himself doesn’t make an argument about why the court is so trustworthy. Primary argument: in each branch of government. and oblige them to give it effect?” Court merely must do its own job. And in that system. the constitution was enforced by the community (elections. do what it is appointed to do. From this ideology.) Popular enforcement was both a normative understanding and a practice that was consistently affirmed through custom. the most powerful . mobs. notwithstanding its invalidity. This argument against judicial review: the dispute is between the people and their legislators. does it. judiciary should not be responsible for determining unconstitutionality. KRAMER RECAP SITUATING THIS CASE WITHIN PAST MATERIAL / HIS INCONOCLAST READING OF MARBURY: In the introductory materials. MARSHALL’S ACTUAL ARGUMENT: Based in the shared understanding that an unconstitutional law is inherently void. bind the courts. This is a pragmatic way to do that. the judges aren’t part of that dispute. have to attend to the constitution. This is part of why his formal arguments are so weak is because he doesn’t flesh out the deeper arguments about the role of the court in upholding a constitution’s interpretation. we already saw that Americans already believed that they were living in a constitutional system. (agent of the people) The argument isn’t that the court’s are the best branch.

though Madison doesn’t talk about courts explicitly…) so what has happened is that courts have been folded in as another check on government tyranny. merely that in the matter of cases.branch. 2. But the assumption is that this will be rare. the “Departmental Theory. What’s most striking about Marbury is that Marshall is very explicitly making the REPUBLICAN arguments. He doesn’t use any of the language that federalists use. So by 1803. which espouses the republican/Jeffersonian theory of judicial review. But when there is conflict between the branches. Hawkins. What happened in the 1790s is that courts were folded into the Federalist 51 theory (the paper about how the govt will be kept in check. at the time. Most of the language in the decision is lifted from Kamper v. it is up to the people to arbitrate the final reconciliation. CONCLUDING OBSERVATIONS 1. Both sides of the argument about judicial review were well rehearsed by the time that Marshall joined the court. 3. The arguments for the judiciary begin to change within the arguments of the “High Federalists” which start pushing the idea of judicial supremacy. This theory best articulated by Madison and Jefferson. it is up to the court to apply it’s duty. but was also being adopted by the courts at the time. but rather uses the language of his republican enemies.” which assumes that all three branches of government are responsible for interpreting the constitution when it comes before them in their ordinary course of business. Marshall has adopted JEFFERSON’S understanding of judicial review and that’s why Jefferson was ok with the decision. Madison is an expression of the DEPARTMENTAL THEORY of judicial review and a rejection of the federalist conception of judicial review (which was judicial supremacy). . Modern understanding of Judicial Review also emerges in the 1790s as part of a conservative reaction of federalists in response to the French Revolution. 4. Called. Marbury v. these arguments have been well rehearsed. Primarily debated in the 1780s. But this is also true for the each of the other branches when they are performing duties within their own sphere.

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