What did Marbury do next?

[M. Sean Fosmire]

Maybe there is a stronger point of irony here.

I sometimes wonder why ConLaw professors, even those few who have a
conservative bent, have not emphasized what I see as the supreme irony of
the Marbury case: a Supreme Court which appears to have tried to follow a
restrained course - we will not make this decision because we believe that
Congress did not have the authority to add this decision-making power to our
role as a court - is now regarded as having asserted a wide-ranging
authority to declare acts of Congress unconstitutional. I have no doubt that
Marshall and the other justices understood that "the judicial power"
included that authority well before the Marbury case, but I also believe
that Marshall perceived the importance of a ringing public declaration of
that authority. How ironic that he was able to do so by modestly declining a
power expressly granted to the Court by Congress.

M. Sean Fosmire
hatgem at gmail.com
Garan Lucow Miller, P.C.
Marquette, Michigan
---------------------------------

On 3/9/07, Edward A Hartnett <hartneed at shu.edu> wrote:
>
>
> The short answer is that there was no court with jurisdiction to which
> Marbury could turn.  No court had mandamus jurisdiction over a federal
> officer.
>
> Not the state courts: McClung v. Silliman, 19 US 598 (1821).
>
> Not the lower federal courts.  McIntire v. Wood. 11 US 504 (1813).
>
> In 1838, the Supreme Court eventually held that the territorial courts for
> DC had such mandamus jurisdiction. Kendall v. Stokes, 37 US 524 (1838), but
> not only is Kendall itself far from persuasive, it is also highly unlikely
> that the same result would have been reached in 1803 -- and there is little
> reason to think that a Congress that had just thrown supposedly life-tenured
> circuit judges out of their jobs would have hesitated to remove  mandamus
> from territorial courts in DC if Marbury had imagined that such jurisdiction
> existed and attempted to invoke it.
>
> We discuss this topic every year or two, so the archives should have
> fuller elaboration.
>
> One of the great ironies of Marbury is that its result is precisely
> contrary to its celebrated dictum that for every right there must be a
> remedy: Marbury had no remedy.
>
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