Constitutional Amendment re Lame Duck actions

[Daniel Hoffman]

>   Marshall's opinion in Marbury basically
> does all the work for Marbury and says all he has to do to get the job is
> go to a court of proper jurisdiction and get mandamus.  Do I gather that
> the best evidence is not only that Marbury never took the judgeship, the
> term being half over and he having moved on to other things, but that he
> never followed up with this other suit?
>
>     It does not appear that any other federal court established by the
> Judiciary Act of 1789 could have granted Marbury a mandamus either, given the
> subject matter and parties involved (see secs. 9, 11).  Arguably the new
> District of Columbia Circuit Court established in 1801 could have, but that
> court was not actually determined to possess the mandamus power under that
> different statute until the *Kendall v. Postmaster General* case in 1816.

    So what was the actual remedy that Marshall said the law must make available
to Marbury?
The most plausible possibility is that, since Marbury's appointment was already
complete, Marshall himself, as CJ, could simply have administered the oath of
office.  Marbury could then have hung out his shingle and, if he or his official
acts were challenged, offered the Court's opinion as a complete defense.

Daniel Hoffman
-------------- next part --------------
A non-text attachment was scrubbed...
Name: guayiya.vcf
Type: text/x-vcard
Size: 294 bytes
Desc: Card for Daniel Hoffman
Url : http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20010202/7c4095a2/guayiya.vcf