Señor

Outline

I. Intro to the Constitution
A. The Articles of Confederation
1. Only had one vote for each state, so reflected states’ rights over people’s rights
2. Could not tax or have troops without permission from the states
3. Needed 9 of 13 states in order to issue laws.
4. Almost no judiciary
5. Created out of fear of a strong, centralizedgovernment like England’s, with a standing army and power of taxation. And, the states were really different in culture.
6. In reality, however, the states never worked together and the new nation was too weak.
B. Transition to the Constitution
1. Make the government stronger yet restrained by making it more complex
2. Separation of powers.
3. Federalist system –represents the people and the states.
II. The Power of Judicial Review
A. Marbury v. Madison – SC, 1803, Marshall
1. Minor Holdings:
a. Marbury had a right to his commission because it was effective upon signature of the President. Gets textual support from Art. II §2 – Presidential appointment w/ advice and consent of the Senate – says nothing about delivering theappointment.
b. Marbury had access to a legal remedy in the courts.
i. Reviewable: Individual rights, Ministerial hirings, and within judicial branch.
ii. Non-reviewable: National policy, Discretionary hirings, within other branches.
iii. Basically, Art. II §2 ¶ 2 – Appointments Clause – lets Congress decide when to place sole power to hire and firein the executive branch. That wasn’t the case here – he was a direct Presidential appointment w/ legislative approval.
c. Mandamus can be granted – not important Constitutionally.
d. Court does have original jurisdiction of Marbury’s case under the Judiciary Act of 1789. This is a questionable holding – Marshall seems to take his quote out of context. However, if thejurisdiction had only been appellate, then the case would have been dismissed, and Marshall would not have been able to make his big statement about judicial review.
2. Holding: The Judiciary Act of 1789 is not compatible with the Constitution.
a. Textual:
i. Art. III §2 ¶ 2 S. 1 – “In all cases affecting public ministers….. the Court shall have originaljurisdiction…. In all other Cases… the Court shall have appellate jurisdiction….”
ii. Marshall interprets this to mean that the cases affecting public ministers are the only ones that have original jurisdiction. Expressio unius.
a. Counter: That’s not the only way to read it. It doesn’t say “Only in cases affecting public ministers”.
b. It could beread that the public ministers are the only class guarded as original jurisdiction – a minimum rather than an exclusive.
c. This would be bolstered by other areas in the Constitution which set aside foreign stuff as a separate class.
iii. Since Marbury is not a public minister – those are all considered to be foreign - the Court should have appellate jurisdiction,not original jurisdiction as stated by the Judiciary Act of 1789.
iv. Important for later: In making this holding, Marshall ignores the exceptions clause, Art. III §2 ¶ 2 S. 2. By doing so, he puts it in a logical box. This will come back to be a problem later. By making it NOT be Congress’ choice to make something original jurisdiction rather than appellate, he leaves no choice butto make it Congress’ choice to make it no jurisdiction rather than appellate.
b. Intent Counter: The Framers wrote the Judiciary Act of 1789 at the same time as they wrote the Constitution, so they probably intended the two to work together.
c. Political: Marshall did all of this in order to use the case to make a comment on the power of judicial review.
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