Does Marbury have a to the commission? Do the laws afford him a remedy? And can the SC issue this remedy? Reasoning Authority for Judiciary to review constitutionality of exec./leg. acts – Constitutional Supremacy Intent of framers original government charter – Constitution is written Sets and bounds of discretion – Art. 4 Supremacy Clause Constitution, and the Laws… which shall be – “This made in Pursuance thereof” is and laws must conform in order to trump state law “Constitution” Judiciary as Interpreter of the Constitution Textual Courts hear all trial under” the Constitution – “arising Judicial Competence Interpreters of law/expertise in conflict resolution – Judicial Oath to protect the Constitution Holding: § 13 is unconstitutional because Congress can’t original jurisdiction beyond what is enumerated in the Constitution Marbury is entitled to the commission, judicial remedy wouldn’t interfere with executive discretion, is the appropriate remedy, Madison cannot assert mandamus sovereign immunity, § 13 authorizes the in this case writ Escape Hatches Recusal Marshall was Secretary of State when Marbury was appointed – Contract Law Decide the commission only vests on delivery (rather than – appointment) NOTE: Does not work if is SATPOP revoke any time Π – Political Question If Constitution gave power over this decision to another branch – Statutory Interpretation Interpret § 13 to allow SC rather than appellate original – jurisdiction over no conflict writs of mandamus Constitutional Interpretation Secretary of state as a – “minister” Exceptions Clause Make an exception that adds original jurisdiction – FEDERALISM Analysis Values of Federalism Efficiency Local issues should be resolved at local level (States environmental – regulations), larger national issues should be resolved at the federal level (defense, transportation, communication) BUT can just have central government with local municipalities Individual Choice States give menu of options assuming mobile population One state bans smoking 70/30, one does not 40/60 Nationally 110/90 So if federal 90 pissed off, if 70 pissed off (30 + 40) Experimentation Very similar to Individual Choice – Brandeis dissenting of experimentation” New State Ice, – “Laboratories State policies can spread, then be adopted nationally later
Does Marbury have a to the commission? Do the laws afford him a remedy? And can the SC issue this remedy? Reasoning – Authority for Judiciary to review constitutionality of exec./leg. acts Constitutional Supremacy Intent of framers – original government charter Constitution is written – Sets and bounds of discretion Art. 4 Supremacy Clause – “This Constitution, and the Laws… which shall be made in Pursuance thereof” “Constitution” is and laws must conform in order to trump state law Judiciary as Interpreter of the Constitution Textual – Courts hear all “arising under” the Constitution Judicial Competence – Interpreters of law/expertise in conflict resolution Judicial Oath to protect the Constitution Holding: § 13 is unconstitutional because Congress can’t original jurisdiction beyond what is enumerated in the Constitution Marbury is entitled to the commission, judicial remedy wouldn’t interfere with executive discretion, mandamus is the appropriate remedy, Madison cannot assert sovereign immunity, § 13 authorizes the writ in this case Escape Hatches Recusal – Marshall was Secretary of State when Marbury was appointed Contract Law – Decide the commission only vests on delivery (rather than appointment) NOTE: Does not work if Π is SATPOP – revoke any time Political Question – If Constitution gave power over this decision to another branch Statutory Interpretation – Interpret § 13 to allow SC appellate rather than original jurisdiction over writs of mandamus no conflict Constitutional Interpretation – Secretary of state as a “minister” Exceptions Clause – Make an exception that adds original jurisdiction FEDERALISM Analysis Values of Federalism Efficiency Local issues should be resolved at local level (States – environmental regulations), larger national issues should be resolved at the federal level (defense, transportation, communication) BUT can just have central government with local municipalities Individual Choice States give menu of options assuming mobile population One state bans smoking 70/30, one does not 40/60 Nationally 110/90 So if federal 90 pissed off, if 70 pissed off (30 + 40) Experimentation – Very similar to Individual Choice New State Ice, Brandeis dissenting – “Laboratories of experimentation” State policies can spread, then be adopted nationally later trial
Constitutional%20Law%20Yoshino%20Spring%202013.docx