II.A Judicial Power and Supremacy

Marbury v. Madison (1803): author and vote

Marshall, 4-0. No concurrences, no dissents.

Marbury v. Madison (1803): facts

Adams loses 1800 election • lame-duck Federalists create judgeships • Marbury named D.C. justice of the peace • commission signed and sealed but NOT delivered • Jefferson orders Madison to withhold it • Marbury sues in the Supreme Court for mandamus under §13 of the Judiciary Act of 1789

Marbury v. Madison (1803): the three questions

1. Does Marbury have a right to the commission? 2. Is there a remedy? 3. Can the Supreme Court issue mandamus as original jurisdiction under §13?

Marbury v. Madison (1803): holding

Yes / Yes / No. §13 is unconstitutional. Rule discharged (writ denied). Marbury never got his commission.

Marbury v. Madison (1803): reasoning

Appointment complete at signing and sealing • "government of laws, and not of men" • ministerial duties are reviewable, political ones are not • Art. III fixes original jurisdiction, Congress can't add to it • the written Constitution is "superior, paramount law"

Marbury v. Madison (1803): key quote

"It is emphatically the province and duty of the judicial department to say what the law is."

Marbury v. Madison (1803): interpretive tools [inferred]

Textual (Art. III lists original jurisdiction; Congress can't add) • Structural (a written, superior Constitution implies courts must prefer it to a statute) • Institutional role (courts say what the law is)

Marbury v. Madison (1803): significance / exam connection

Judicial review of acts of Congress • strategic retreat that avoids a fight with Jefferson • not used again against Congress until Dred Scott. Contrast: McCardle (Congress controls the Court's appellate jurisdiction) and Luther (some questions are for the political branches)

Which case? "It is emphatically the province and duty of the judicial department to say what the law is."

Marbury v. Madison (1803), Marshall

Which case? Justice of the peace commission signed and sealed but never delivered; mandamus sought under §13 of the Judiciary Act

Marbury v. Madison (1803)

Luther v. Borden (1849): author and vote

Taney, 8-1 (Woodbury dissent)

Luther v. Borden (1849): facts

Rhode Island still under its 1663 charter • Dorr Rebellion sets up a rival "People's Constitution" • charter government declares martial law • Tyler backs the charter government • militia searches Luther's house • Luther sues for trespass, claiming the charter government is not "republican"

Luther v. Borden (1849): constitutional question

Can courts decide which state government is lawful under the Guarantee Clause?

Luther v. Borden (1849): holding

No. Political question. Affirmed.

Luther v. Borden (1849): reasoning

Congress decides by seating a state's delegation • the President decides under the Militia Act of 1795 when to intervene • courts second-guessing would make the guarantee "a guarantee of anarchy, and not of order" • "The right to decide is placed there, and not in the courts"

Luther v. Borden (1849): dissent

Woodbury: agreed courts could not decide which government was lawful, but would have held the charter government's martial-law declaration and warrantless searches unlawful; martial law cannot be declared by a state legislature absent actual war

Luther v. Borden (1849): interpretive tools [inferred]

Structural / institutional (the Constitution commits this question to Congress and the President, not courts) • Consequences (judicial review here would produce anarchy)

Luther v. Borden (1849): significance / exam connection

Origin of the political question doctrine • Guarantee Clause unenforceable in court • Baker v. Carr later narrows it. Contrast with Marbury: judicial power is real but not unlimited; some constitutional questions belong to the political branches

Which case? "a guarantee of anarchy, and not of order"

Luther v. Borden (1849), Taney

Which case? Dorr Rebellion, rival "People's Constitution," militia searches a house under martial law

Luther v. Borden (1849)

II.A line: how do Marbury and Luther fit together?

Marbury: courts decide what the law is and may void acts of Congress. Luther: but not every constitutional question is for courts; Guarantee Clause questions go to Congress and the President (political question). Judicial power is strong but bounded