What did Marbury do next?

[Mark Rahdert]

In the shameless promotion department, some of the issues discussed here 
are taken up in an article I co-authored with Robert Reinstein: 
"Reconstructing Marbury," 57 Arkansas Law Review 729 (2005).  Building on 
Professor Weinberg's work, we maintain that, aside from its status as a 
test case, there were good legal reasons why Marbury's litigation team 
would choose to file his petition in the Supreme Court, given the apparent 
jurisdictional limitations of the lower federal courts and the 
constitutional difficulties of state courts issuing a writ of mandamus to a 
federal official.  See pp. 743-49.

Mark Rahdert

At 04:45 PM 3/9/2007, Edward A Hartnett wrote:

>Section 13 of the Judiciary Act of 1789 had purported to give the Supreme 
>Court the "power to issue . . .  writs of mandamus, in cases warranted by 
>the principles and usages of law, to any courts appointed, or persons 
>holding office, under the authority of the United States."  Section 11, 
>which set forth the jurisdiction of the circuits courts, did not have any 
>such provision.
>
>McIntire v. Wood, in 1813, was a short unanimous decision interpreting the 
>Judiciary Act of 1789.  Referring to Marbury, counsel for the plaintiff 
>argued that it " has been decided, that the power to issue a mandamus . . 
>.  does not belong to the Supreme Court; it must, therefore, be in the 
>Circuit Courts."  The Court rejected that argument, stating:
>
>"Had the 11th section of the judiciary act [of 1789] covered the whole 
>ground of the constitution, there would be much reason for exercising this 
>power in many cases wherein some ministerial act is necessary to the 
>completion of an individual right arising under laws of the United States, 
>and the 14th section of the same act would sanction the issuing of the 
>writ for such a purpose. But although the judicial power of the United 
>States extends to cases arising under the laws of the United States, the 
>legislature have not thought proper to delegate the exercise of that power 
>to its Circuit Courts, except in certain specified cases."
>
>McClung v. Silliman, in 1821, was also unanimous.  One of its reasons for 
>concluding that the state courts could not issue mandamus to a federal 
>officer was that Congress had not given such power to the federal courts.
>
>Is there any reason to think that a court in 1803 would have interpreted 
>the Judiciary Act of 1789 differently?  I don't see why.  The statutes are 
>not any more favorable to such jurisdiction in 1803 than in 1813, and (as 
>far as I can tell) the political pressure against such jurisdiction is 
>stronger in 1803 than in 1813.
>
>As for the Courts in DC:
>
>Surely Marshall did not envision that Marbury would apply for mandamus to 
>a district court in DC.  Federal district courts at that time were courts 
>of admiralty and minor criminal jurisdiction.
>
>The Circuit Court in DC was the court that was eventually held, in a 
>divided decision in 1838, to have mandamus jurisdiction.  But that court 
>had been created by the same act that created Marbury's office, and given 
>the same jurisdiction as the circuit courts created by the Judiciary Act 
>of 1801.  By the time Marbury was decided, of course, the circuit courts 
>created by the Judiciary Act of 1801 had been abolished.
>
>Thus we are asked to imagine Marbury going into a court created by the 
>same statute that created his office, and asking that court to issue 
>mandamus to a member of the Cabinet, based on an argument that this court 
>had the jurisdiction -- not equal to that of all the old-and-now-restored 
>circuit courts created by the Judiciary Act of 1789 and again staffed by 
>justices of the Supreme Court riding circuit -- but of the 
>new-but-now-abolished circuit courts, created in 1801 and destroyed in 
>1802.  For this was the reasoning of Kendall: that when Congress gave the 
>circuit court for DC the jurisdiction of a circuit court, it was referring 
>to the jurisdiction of the circuit courts created in 1801 and destroyed in 
>1802, and that such jurisdiction survived the repeal of the Judiciary Act 
>of 1801. (Kendall also relied on the circuit court in DC inheriting the 
>common law jurisdiction of the Maryland courts, another difficult argument 
>to be making in the legal/political atmosphere of 1803.)  Those circuit 
>judges, of course, knew that every other circuit judge in the nation had 
>been tossed out of office, that the Supreme Court Justices had accepted 
>their removal (by taking their places on circuit) and that those displaced 
>circuit judges had no remedy.
>
>It strikes me as doubtful that the circuit court of DC would have 
>anticipated the Kendall majority by 35 years and granted Marbury relief.
>
>
>Edward A. Hartnett
>Richard J. Hughes Professor
>     for Constitutional and Public Law and Service
>Seton Hall University School of Law
>One Newark Center
>Newark, NJ 07102-5210
>973-642-8842
>hartneed at shu.edu
>SSRN author page: http://ssrn.com/author=253335
>_______________________________________________
>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.



Mark C. Rahdert
Professor of Law
Temple University
Beasley School of Law
1719 North Broad Street
Philadelphia, PA  19122

Phone: 215-204-8966
Fax: 215-204-1185
Email: mark.rahdert at temple.edu
    
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20070312/3d825a0a/attachment.htm