[NOISE] John Marshall knew in deciding Marbury versus Madison that he had to rule against Marbury and in favor of James Madison in the Jefferson administration. Had the Supreme Court ruled in favor of Marbury, Jefferson and Madison would have simply ignored the ruling. That would have forever weakened the powers of the United States Supreme Court. So what Marshall decided to do was to rule against Marbury. But in doing so, to create a larger power for the federal judiciary. The power to review the constitutionality of executive and legislative actions. He did so then, creating this power of Judicial Review in a context that gave very little in the way of opposition. After all, there was no reason for Jefferson and Madison to protest the decision. They won in the Supreme Court. The court was denying itself the power to rule in favor or Marbury but claiming the much larger power that exist to this day. And this is central to government. The power of Judicial Review. The court in Marbury versus Madison held that the federal judiciary has the authority to review the constitutionality of executive actions and of federal laws. The power that I have called the authority for judicial review. In discussing Marbury versus Madison, I want to focus on four questions. First, should the court have even reached the question of the constitutionality of the Judiciary Act of 1789? The case Marbury versus Madison is most famous for declaring unconstitutional the provision of the Judiciary Act of 1789. But should the court ever have even reached this question? Second, I want to talk about, what's the authority of the court to review the constitutionality of presidential executive action? Third, I want to briefly focus on, was the Judiciary Act of 1789 really unconstitutional? And the fourth and final element I want to talk about. How does the court justify the power to review the constitutionality of federal statutes? Is it persuasive in that regard? So, let me start with the first of these questions. Should the court have even reached the question of whether the Judiciary Act of 1789 was unconstitutional? They said the most famous aspect of the decision was declaring a provision of this law unconstitutional and thereby claiming the power of the judiciary to declare laws unconstitutional. But should the court have done that? Well one of the things to ask here is, did Marbury really have a right to his commission? If Marbury didn't have a right to his commission, this case could have easily been resolved without reaching any constitutional issues. The court could have said, Marbury's coming to us wanting us to force James Madison, the Secretary of State, to deliver this piece of paper, this commission. But Marbury has no right to it. What would be the argument? Marbury never received the commission. It was never delivered to him. So the court could have said, sorry Marbury. You lose. You don't have a right to the commission. It was never delivered. The Supreme Court, at the beginning of its opinion says, well, delivery of the condition isn't required. The court says all that's required is that the commision be signed and sealed, it was signed and sealed by the Secretary of State that's good enough. But, I'm sure everyone's heard the phrase signed, sealed and delivered. The argument on the other side of Marbury is signed and sealed isn't good enough. It should be signed, sealed and delivered. I wonder why signed, sealed, or delivered is even required. The constitutions says the the president gets to appoint federal judges with the advice and consent of the Senate. Once President Adams appointed Marbury, and once the Senate confirmed, why wouldn't that be enough for Marbury to have a right to be a judge? But that's not what the Supreme Court said. The Supreme Court said signed and sealed is all that is required. Delivered is incidental, Marbury had a right to the commission. Yet, one looks at the property law that existed back in 1803. The early 19th century, the late 18th century. Signed sealed and delivered seemed to be the requirement. Another way that the court could have avoided ever reaching the constitutional issue, was to say that the Judiciary Act of 1789 did not authorize mandamus in the Supreme Court's original jurisdiction. Here's what this means in English. Marbury went to the Supreme Court as the initial court to hear the matter. It's original jurisdiction. Now Marbury based this on language from the Judiciary Act of 1789. And yet, if one reads that paragraph closely, it seems to be about the ability of the Supreme Court to give relief in cases before it by appeal. It doesn't seem to be about the original jurisdiction of the Supreme Court at all. So the Supreme Court could've simply said, Marbury, you come to us under this statute, you come to us as the initial court where you filed this. You come to us in original jurisdiction. You've based this on a statute, but that's not what the statute says. The statute's about our hearing appeals. Marbury, go back to the trial court. Start there, and then you can come back to us on appeal. The court could have avoided the issue. Perhaps most of all, the court can be criticized for John Marshall, participating at all in the case. John Marshall, as I mentioned, was the Secretary of State during the Adams administration. It was John Marshall who signed and affixed the seal to the United States. Today it would be unthinkable for a judge to participate in a case. With the judge had been involved in it as member of the governance or in any other way. This idea that judges should be recused when they're personally involved isn't new. There's famous cases where John Marshall chose not to participate, to accuse himself, but here he did. Now the excuse that was given was he needed to participate in order for it to be a quorum on the Supreme Court. That some of the justices were out riding circuit and the only way to have a quorum was for Marshall to participate. But if it was unethical for Marshall to participate shouldn't he have waited for those just who were riding circuits to return to Washington? Already this case had languished for a couple of years. As I mentioned, the facts take place in February and early March in 1801, court doesn't hear the case until 1803 because Congress limited the 1802 term of the court. What would be the harm of waiting, another month, even few months? The justices riding the circuit came back. I think it's clear that John Marshall chose to participate in this case, because he saw the unique opportunity. He saw the chance to create the power of judicial review. In a way in which there'd be very little political opposition, there wouldn't be any chance of disobedience of what the court was saying. But again I ask the question as I ask so often through these lectures, do the ends justify the means? Do the ends of creating this judicial power justify Marshall participating, when it seems so clearly unethical for him to do so? And I think historians would all agree, had Marshall not participated, the court would have never reached the issue of the constitutionality of the Judiciary Act of 1789. So that's one question to think about with regard to Marbury versus Edison. Should the court have even reached the issue over the Judiciary Act of 1789 was constitutional? The second question I raised is what is the authority of the judiciary to review the constitutionality of executive actions? We all learned In high school, maybe, in junior high school, that Marbury versus Madison is famous, because it created the power of the federal courts to declare federal statutes unconstitutional. Equally important, is Marbury versus Madison created the authority of the federal courts to review the constitutionality of presidential actions. And the Supreme Court did this in a very important language, early in the decision in Marbury versus Madison. The Supreme Court said, no one, not even the president or the secretary of state is above the law. This is crucial to the United States Constitution, it's part of course what makes it different from English rule that the United States rebelled against. In England, the king was above the law. The king could do no wrong. In countries where you have dictators, the dictator is the law. But the Supreme Court says this is a government, and I'll use the court's words then, they seem sexist now. It's a government of laws, not of men. Rephrased today, it's a government of laws, not of people. And this is the way in which the court conveyed no one, not even the president, is above the law. And the Supreme Court said we need to draw distinction between when the president is performing a discretionary task and is answerable only to the political process. As opposed to when the president is performing a non-discretionary task, often called a ministerial task, and then is amenable to the law. The supreme court in Marbury versus Madison, says there's a lot of things that a president does where the president has discretion and the only check is a political one. Who to appoint to be an ambassador or federal judge. That's at the discretion of the president. Somebody is not appointed, however, disappointed can't sue. Whether to veto a law, that's up to the president, you can't sue the president if the president vetoes or doesn't veto the law. That's under the discretion of the president. The president gets to decide who to pardon or not to pardon. And there have been times when the presidents pardoning power has been very controversial. But that's the president's power. To court says all of those and I'm using the word of the Supreme Court or discretionary and it can't be traditional review. But the court says the president has a duty to act. When there's rights of individuals involved, then the courts can review presidential action. This has been enormously important through American history. As I'll talk about in subsequent parts in this lecture, when president Harry Truman seized the steel mills, to ensure steel production during the Korean War. The Supreme Court reviewed this and declared this unconstitutional. When Richard Nixon claimed executive privilege, the authority to keep the tapes of conversations in the White House secret, the Supreme Court unanimously ruled against the president and said Marbley versus Madison establishes no one is above the law where it said the case involved the need for evidence at criminal trials. When President Bush claimed the authority to detain individuals in Guantanamo, enemy combatants, the Supreme Court said it authority to review this. Because Marbury versus Madison establishes that no person, not even the president is above the law. And so this aspect of Marbury versus Madison is truly crucial and crucial throughout American history. The third question that I raised about Marbury versus Madison is was the Judiciary Act of 1789 really unconstitutional? Here's what the Supreme Court said. The Supreme Court said, we interpret the Judiciary Act of 1789 as authorizing the Supreme Court to a request for mandamus, in original jurisdiction. In other words, the Supreme Court says, we interpret this federal statute as allowing a case to be filed. Initially the Supreme Court which somebody is requesting an order to a government office to perform a duty. The Supreme Court says, Article III enumerates when the Supreme Court can exercise original jurisdiction. Remember Article III is the provision of the Constitution that defines the powers of the federal courts. In Article III, Section II, it says the Supreme Court can exercise original jurisdiction in cases involving ambassadors, public ministers, cases where the state is a party. And the Supreme Court says, that what Marbury is requesting, does it fit into the categories of original jurisdiction enumerated in Article Three of the Constitution? John Marshall says that the language in Article III, that defines the original jurisdiction of the Supreme Court would be made meaningless if Congress could expand the jurisdiction of the Supreme Court. Here are the exact words that John Marshall uses, the language of article [INAUDIBLE] quote mere surplusage. If congress on its own could expand the jurisdiction of Article III. But that seems clearly wrong, even if congress could expand the original jurisdiction of the supreme court that wouldn't make the language in Article III meaningless. The language in Article III could be the minimum. The floor, even if congress could add more and expand it. Imagine those who organized the lecture said to me. You must talk about Marbury versus Madison. But then I go on and talk about a great deal else over the course of lectures. Would that make their command to me to talk about Marbury versus Madison meaningless? Of course not. It would mean I have to do this, but I can also do other things. One way of interpreting the language of Article III Is it the Supreme Court has to be able to access regional jurisdiction. Like when a state is a party. When there's an ambassador or public minister. But that Congress could add war and adding war doesn't make the minimum the floor irrelevant, but notice John Marshall began new he couldn't rule in favor of Marbury. What John Marshall wanted to do was to create the larger power, the power to declare federal law as unconstitutional. And so by saying the Judiciary Act of 1789 was unconstitutional, he then gets to the most important question, do federal courts have the authority to declare federal statutes unconstitutional? I'll take a short pause, and then when I come back I'll address this, the fourth question of Marbury versus Madison, the most important issue. Should federal courts have the power to declare statutes adopted through the democratic process to be unconstitutional?
