politics and Marbury v. Madison.

Thu Oct 20 13:16:38 PDT 2005

Yes, but all of this loses sight of the fact that the Constitution DOES prohibit the Court from conducting trials for mandamus; the Court conducted such a trial; the statute in question seemed to authorize the same (not ignoring semi-colons); and legal culture in 1803 did not make the argument that the trial should be conducted elsewhere at the time it was occurring.

These facts, within their four corners, stand on their own.

There are good reason's to reject  Bloch's argument, beyond the usual reasons to be skeptical of conspiracy theories.  As we have discussed earlier on the list, while the Supreme Court some 35 years later held that the DC Circuit Court -- but no other court in the nation -- had been given the power to issue mandamus to federal officials, that decision is hardly unassailable.  It relied on 1) a conclusion that the DC Circuit Court inherited the common law powers of the Maryland courts and 2) that the DC Circuit Court could rely on a statutory reference to the powers granted in the Judiciary Act of 1801, even though that act had been repealed.  Moreover, as Richard Fallon has noted, it is "highly doubtful that the Court, in the politically charged atmosphere of 1803, would have upheld the authority of the D.C. courts to order mandamus relief for William Marbury against James Madison." 91 Cal. L. Rev. 1, 52 (2003). 

Does anyone doubt that if Marbury had made such an attempt, the Republican Congress would have made clear that the DC Circuit had no such authority?  Imagine if the Supreme Court or the DC Circuit in 1803 had held that the DC Circuit could issue mandamus to Madison because of the continuing force of the recently-repealed Judiciary Act of 1801 or its inherited common law power.  Isn't it likely that the judges of the DC Circuit would have met the same fate as the circuit judges appointed under the Judiciary Act of 1801 and found themselves deprived of any court to hold? 

Ed Hartnett 
Seton Hall 

marty.lederman at comcast.net 
Sent by: conlawprof-bounces at lists.ucla.edu 
10/20/2005 01:14 PM 
To
"Sanford Levinson" <SLevinson at law.utexas.edu>, <whoooo26505 at yahoo.com>, <mgraber at gvpt.umd.edu>, <ebraman at indiana.edu> cc
lawcourts-l at usc.edu, conlawprof at lists.ucla.edu Subject
Re: politics and Marbury v. Madison.

Not quite, Sandy:  The *final* message of Marbury (see Sue Block's article) is that Marbury has the right to go down the block to a different court and, with the SCOTUS's opinion in Marrbury v. Madison in hand, demand that that court issue a mandamus to Madison to grant Marbury his commission (a commission that is, btw, meaningless, because -- according to Marshall -- Marbury is an appointed judge whether he receives a commission or not).

Of course, Marbury doesn't have any desire to receive the commission, or to act as a judge.  He's *not* left "high and dry" -- because he wasn't looking for any relief.  Instead, it appears that his entire lawsuit was a set-up to enable Marshall to opine:  (i) that the federal courts can issue a mandamus to Executive officials to abide by the law as announced by the courts; and (ii) that the SCOTUS can ignore the operation of a federal statute if it disagrees with Congress's "assessment" of that statute's constututionality (scare-quotes because there was no such legislative assessment of the constitutionality of Marshall's idiosyncratic reading of the Judiciary Act).

In this respect, Marbury and Marshall, working as a team, got precisely what they were seeking, and the tactical way in which they did so was a stroke of sheer brilliance.  Or so I've been told.  ;-)  And I think that *is* a story worth telling to first-year students (just in case they're not cynical enough about the courts when they arrive), if for no other reason than to stimulate them to think about whether the SCOTUS's means justify its professed lofty ends in a case where the students *approve* of the ends (in contrast to Dred Scott and, for many, Bush v. Gore, where history did not look kindly on the Court's attempt to "settle" the political-constitutional debates).

For what it's worth, in this, my first semester of teaching ConLaw, I covered both Marbury *and* Prigg and Dred Scott (as well as the requisite three weeks on McCulloch and the bank controvesy) -- as you might suspect, I'm using Sandy's own casebook.  Of course, because at least an additional month ought to be spent on separation of powers, that doesn't leave much time to teach the so-called Commerce Clause "doctrine" (and almost no time at all to teach the "dormant" Commece Clause), but one can't have it all . . .

> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as private.
> Anyone can subscribe to the list and read messages that are posted; people can
> read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.

To: <whoooo26505 at yahoo.com>, <mgraber at gvpt.umd.edu>, <ebraman at indiana.edu>
Cc: lawcourts-l at usc.edu, conlawprof at lists.ucla.edu
Subject: Re: politics and Marbury v. Madison.
Date: Thu, 20 Oct 2005 16:06:13 +0000
Content-Type: Multipart/mixed;        boundary="NextPart_Webmail_9m3u9jl4l_12321_1129828483_1" 

Simply to repeat the main point:  I have no doubt that one can make a great show out of teaching Marbury for a week.  The question is the opportunity cost.  The sad fact is that I all too easily imagine hosts of students who are never introduced to Prigg and Dre Scott, and I think that's a disgrace with pernicious consequences for the health of a polity in which lawyers play a disproportionate role.

While I'm at it, let me admit that I literally cannot understabd why anyone would be "inspired" by Marbury:  Marshall may thunder about the wrong fone to Marbury, but the final message is that he's left high and dry, either because of a legal technicality involving jurisdiction (assuming you take his argument seriously, which of course I don't) or because of a ruthless calculation that Marbury's right takes second place to protecting the institutional interest of the Supreme Court and/or the personal interests of judges who wanted to avoid impeachment.  I find Marbury as inspiring as Prigg.

Sandy
- Sanford Levinson
(Sent from a Blackberry) 

Simply to repeat the main point:  I have no doubt that one can make a great show out of teaching Marbury for a week.  The question is the opportunity cost.  The sad fact is that I all too easily imagine hosts of students who are never introduced to Prigg and Dre Scott, and I think that's a disgrace with pernicious consequences for the health of a polity in which lawyers play a disproportionate role. 

While I'm at it, let me admit that I literally cannot understabd why anyone would be "inspired" by Marbury:  Marshall may thunder about the wrong fone to Marbury, but the final message is that he's left high and dry, either because of a legal technicality involving jurisdiction (assuming you take his argument seriously, which of course I don't) or because of a ruthless calculation that Marbury's right takes second place to protecting the institutional interest of the Supreme Court and/or the personal interests of judges who wanted to avoid impeachment.  I find Marbury as inspiring as Prigg. 

Sandy 
- Sanford Levinson 
(Sent from a Blackberry) 

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. 

__________________________________________________
Do You Yahoo!?
Tired of spam?  Yahoo! Mail has the best spam protection around 
http://mail.yahoo.com 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20051020/0ca2b86b/attachment.htm