marbury v madison exp. for a lost fellow?

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myung76
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marbury v madison exp. for a lost fellow?

Postby myung76 » Wed Jan 02, 2013 8:02 pm

hey guys

can someone tell me the point of marbury v madison? obviously this is a big one for con law and im a bit lost as there seems to be
a crap load of facets and important implications that arise out of this case. any input would be great.

thanks!

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Nova
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Re: marbury v madison exp. for a lost fellow?

Postby Nova » Wed Jan 02, 2013 8:03 pm

Big picture: It established judicial review.

You gunnin for the spring already?


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prezidentv8
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Re: marbury v madison exp. for a lost fellow?

Postby prezidentv8 » Wed Jan 02, 2013 8:28 pm

Gorki wrote:http://en.wikipedia.org/wiki/Marbury_v._madison#The_decision


Also, just go buy: http://www.amazon.com/Constitutional-La ... 0735598975

acrossthelake
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Re: marbury v madison exp. for a lost fellow?

Postby acrossthelake » Wed Jan 02, 2013 8:31 pm

Nova wrote:Big picture: It established judicial review.

You gunnin for the spring already?


My con law prof actually argued that judicial review was pretty well established at that point and that it had more to do with whether they could mandamus the Pres. *shrug*

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minnbills
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Re: marbury v madison exp. for a lost fellow?

Postby minnbills » Wed Jan 02, 2013 8:33 pm

acrossthelake wrote:
Nova wrote:Big picture: It established judicial review.

You gunnin for the spring already?


My con law prof actually argued that judicial review was pretty well established at that point and that it had more to do with whether they could mandamus the Pres. *shrug*


I've heard this too. I think Marbury is basically the poster-boy for judicial review, and also is also a great intro to modes of interpretation and whatnot. There's a lot wrapped up in it.

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prezidentv8
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Re: marbury v madison exp. for a lost fellow?

Postby prezidentv8 » Wed Jan 02, 2013 8:33 pm

acrossthelake wrote:it had more to do with whether they could mandamus the Pres. *shrug*


This sounds like something dirty

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Cade McNown
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Re: marbury v madison exp. for a lost fellow?

Postby Cade McNown » Wed Jan 02, 2013 8:34 pm

From a guy who revived this thread <http://top-law-schools.com/forums/viewtopic.php?f=3&t=144675&start=25> don't worry just yet, it will click at some point. I was lost through Spring Break, ended up booking the course, and am now an RA for my prof. Feel free to pm though with any specific questions.

Also, this:

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XxSpyKEx
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Re: marbury v madison exp. for a lost fellow?

Postby XxSpyKEx » Wed Jan 02, 2013 8:57 pm

Here's is literally everything you could possibly get out of Marbury v. Madison:

Marbury v. Madison
1) The constitution:
a) Article 1- about congress
i) Article 1, section 8- powers of federal gvt
ii) A1S9- limits on Federal gvt power
iii) A1S10- limits on state power
(1) A1S10- impose limits on state taxing power—can’t impose duties on imports or exports. This type of tax is not limited on state gvt power.
b) Article 2- About president
c) Article 3- About the courts always
i) A3S2C1-- Defines what the types of jurisdiction are (9 types).
2) Duel office holding:
a) President has the power to nominate and long as the assent and commission of the senate is given he can be the Chief justice of the US.
b) A1S6C2- explicitly says you if you are a member of executive you can’t simultaneously be a member of senate, and/or can’t be a member of the house at same time.
i) Marbury and Madison talked about whether a person could simultaneously be in judicial and executive overlap, and that was allowed (textual argument that framers addresses it and didn’t forbid it).
(1) They did forbid congressional-executive overlap. A1S6C2- says that you can’t be a member of either house and simultaneous an officer of the US.
(a) What is officer of US? Someone acting under the power of the executive branch. Someone executing significant authority under the laws of the US. –Not just advising, you are doing something such as changing the rules.
c) Other duel office holding (executive and judicial):
i) It is not prohibited by the Con, but little C prohibits it (i.e. the people expect a check)
ii) Arguments:
(1) It says nothing about the executive and the judicial branches; therefore, can make the argument that --The thing expressed implies the exclusion of others. If the con took the time and paid attention to this particular problem and only to certain areas (duel office holding but only particular categories), but not this one, then it must have been that the framers didn’t not want to forbid this type of office holding.
(a) This is based on the text that talks about duel office holding for everything besides duel office holding besides the legislature and the judicial branch.
(2) Are system of gvt is one that presumes liberty (could have a system that says moves aren’t possible until permission is given) ours is the opposite and all moves are possible until restricted by con, statutes, or CL, etc. So if that move is not restricted then it is allowed.
(3) Not so much that can’t do it, but that the people expect a check. That’s the way expect out con to work.
(a) This help to illustrate the point the con has 2 faces. One is the big C document in the book, which has words on it and doesn’t’ forbid Chief justice and Secretary of State duel office holdings. It happened back in the day, when it was written. There is a great argument here for it in terms of what it says (i.e. it forbids other duel office holding (such as legislature and judiciary, etc., but not this one).
(i) The little C con, what we expect as people to happen would never allow it to happen. So the president that tries it is in trouble not because the Con forbids it but because we as a people don’t like it because it is not we expect as people.
3) Power of judicial review:
a) The Supreme Court has the authority of judicial review of acts of Congress and determine whether they are unconstitutional and therefore void.
i) (SCOTUS may review legislative acts, statues, etc. to determine whether they are constitutional)
ii) Courts do have the power to declare the acts of congress null and void, as well as state legislature when they are not in substantive conformity with the Con.
(1) [The Supreme Court has the power to declare acts of Congress unconstitutional.]
(2) The court won in actually giving Jeffereson what they wanted the court claimed for itself the power to declare the power to declare acts the congress code of the legislature and of the executive null and void, and inoperative.
iii) See below for policy arguments for and against judicial review
b) Political Question Doctrine- political questions are not subject to judicial review.
4) Jurisdiction:
a) Jurisdiction is the power of the court to hear the case.
i) 2 types of jurisdiction- SMJ and PJ
(1) PJ- can the court see the case with these people. The power of the court to hail the person into court.
(2) SMJ- Fed Q or Diversity (of Ps)- is this the kind of case fed courts can hear?
(a) “Arising under jurisdiction”- same as Fed Q
(3) For fed court to hear a case need jurisdiction over the person and the SMJ.
(a) In order to have SMJ the con has to grant the court SMJ and congress (statute) must grant the court SMJ (article 3)
ii) SCOTUS has 2 kinds of jurisdiction beyond that—original and appellate.
(1) Original means SCOTUS is the first court to hear a particular case or controversy—they are the trial court.
(a) SCOTUS could actually here witnesses, etc as original jurisdiction (but magistrates actually do that).
(2) Then there is appellate jurisdiction.
b) Courts typically address jurisdictional questions first because can’t render an advisory opinion
i) If the court doesn’t have the power to hear the case then it should stop because everything else it is rendering would just been an advisory opinion and that is not allowed.
c) Courts jurisdictional power are limited because Article 3 limits the power. Article 3 vests the courts with the judicial power.
i) Article 3, section 2, clause 1-- Defines what the types of jurisdiction are (9 types).
(1) A3S2C1-.
(a) The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;
(b) --to all cases affecting ambassadors, other public ministers and consuls;
(c) --to all cases of admiralty and maritime jurisdiction;
(d) --to controversies to which the United States shall be a party;
(e) --to controversies between two or more states;
(f) --between a state and citizens of another state;
(g) --between citizens of different states;
(h) --between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
(2) For SCOTUS to hear a case it needs both a statutory grant and Con granting power to hear the case
(a) For the court to have to power to hear a case you need statute, and the constitution
(i) Congress must vest the right to the court (statute), and need the constitution granting the court the power to hear the case
(b) [Sidenotes] -SCOTUS is the only court that is required by the Con and Congress could get rid of all lower federal courts. That does not affect state courts.
(i) Congress could pass a new federal statute where the federal court can’t hear it and that only the state court could hear it (see below—supremacy clause).
5) Supremacy clause:
a) When have a law in conflict w/ con:
i) Constitution is the supreme law of the land
(1) Congress cannot expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Article III of the Constitution.
(a) [Establishes that Article III of the Constitution is the maximum jurisdiction of the Supreme Court and Congress can't give them more powers.]
(b) Article 3, section 2, clause 1, sets out the boundaries of SCOTUS jurisidiction
(i) A3S1C1- “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
1. Original jurisdiction covers- Ambassadors, other public ministers and consouls, and states—all of these are gvts foreign to the federal gvt. (i.e. foreign ministers, etc.) (look up)
2. Appellate jurisdiction—covers everything else.
a. Exceptions clause does NOT allow Congress to move things that are in the appellate jurisdiction of SCOTUS into original jurisdiction.
i. However, by reading the exceptions clause that way it opens the door—that is that Congress gets to say that SCOTUS can’t hear certain constitutional cases. That congress can just take away SCOTUS’s jurisdiction altogether
ii. (e.g. SCOTUS can’t hear flag burning cases, etc.).
b. [ignore]- Argument- The exception clause might be that congress can move certain rising out of cases by passing a statute can make an exception by moving stuff from the original jurisdiction to the appellate jurisdiction. If you read the clause that way then the statute is constitutional. But the court says that can’t possibly be the clause. Counterargument—the allocation between appellate and original would be meaningless if Congress could just alter these by passing a statute.
3. There are three ways a case can be heard in the Supreme Court: (1) filing directly in the Supreme Court; (2) filing in a lower federal court, such as a district court, and appealing all the way up to the Supreme Court; (3) filing in a state court, appealing all the way up through the state's highest courts, and then appealing to the Supreme Court on an issue of federal law.
a. The first is an exercise of the Court's original jurisdiction; the second and third are exercises of the Supreme Court's appellate jurisdiction.
(2) When the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid
(a) Where statute conflicts with Con, the court should not give affect to the statute (should refuse to enforce it).
(b) The supremacy clause—Based on that the supremacy clause any statute that conflicts with the statute is no longer valid enforceable law.
(i) A6S1C2- This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.
1. The laws that are made in pursuant to the Con (that match up to the Con, in substantive conformity with the Con) are valid, but ones that conflict are null and void.
b) When there is a statutory Q and a Con Q the courts will start at the statutory Q because they try to avoid the Con Q
i) Rationale- the error costs are much higher in construing a Con provision because if they get it wrong on the con the only way they can change it is a con amendment or overruling a case.
(1) Much easier to change a statute. Therefore the court will always try to take the statutory Q first to avoid the Con Q.
6) Delivery of commission- does it matter?
a) RULE- The judiciary could provide remedies against the executive when there is a specific duty to a particular person, but not when it is a political matter left to executive decision
i) Class-
(1) Delivery does NOT matter with unfireable appointments (as long as signed and sealed)
(i) Rationale- Delivery is just a technical problem and one that we can deal with after the fact.
(ii) Ex- commission for appointment as a justice
(b) Absolute discretionary acts are not judicially reviewable (no redress besides political process).
(i) NO redress in the court because the con itself gives him the discretion to make or revoke an appointment at any time up until the time at which the last act is completed
a. E.g.- the signing of a commission for a judge, But up to that point the discretion is completely up tot the president and it is unredeemable
2. However, there are little C constraints on him, political constraints, but no legal constraint (i.e. could take it to media and make him look bad, but that’s it
a. Doesn’t matter if suing for compensation or equity because the president has absolute discretion, only redress is political (i.e. go to the new), no legal redress.
i. HYPO- Nancy P case, she wants something with healthcare, and Obama say if you send me any bill without a public option, I will sign it. Then P sends it w/o public option, and Obama says I won’t sign it.
ii. -There are little C constraints on him, political constraints, but no legal constraint (i.e. could take it to media and make him look bad, but that’s it). If P sues here the court will say go away, maybe he didn’t make the promise honestly, etc. It’s completely his discretion and he can just not sign it. Absolute discretion and not reviewable.
(2) Delivery does matter where the person could be fired at any point, such as with secretary of state appointment (unlike with commissioned chief justice appointment where the job is an entitlement once appointed)
(a) Case- “Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.”
(3) Marshall makes a distinction between 2 types of cases—not a remedy for every type of right, not true when there is discretion involved in the act that caused the injury.
(a) HYPO- say MARBURY lives in Richmond, Virginia which is a very long ways to DC in those days, say Marybury sells him plantation, takes his family to DC, and then when gets there the president says sorry you’re not getting the job, this guy who was a great worker is going to get and Marbury you are out of work. Marbury has been injured? Yes, reliance can for a K and allow for damages. Yes, he has been injured, but hasn’t been injured in any way that would give the court cause to issue a remedy. Why?
(b) HYPO- Obama says X retired and prof, I’m putting you on the court. So prof says OK, I want it in writing and there is a K written, and then Obama says, “shit, I messed up, you don’t’ get that job.”
(4) Judiciary review- When executive is doing something within the discretion of the executive, then not reviewable by court. But once you taken a legal act and a right has vested, then the court will entertain claims of vested rights.
7) Writ issue:
a) Writ of mandamus is-- An order that issues from court that directs an officer of the US to do a job that is ministerial about which the public officer has no discretion.
i) Ex- if you are an officer in DC and someone sits for the bar there, and there is a rule where the results of the exam will be posted on the doors of the courthouse the next day, you can be mandamuses for that, but not for something that you have discretion to.
b) Today if you filed the wrong writ the court will fix it for you.
i) This was no so back in the early 19th century. --This was writ pleading, the battle days, and if you didn’t file your petition properly then you are done and you get thrown out of court.
8) Random rules-
a) US Marshall service works for the president of the US (all the guys with guns work for the president of the US)—so court can’t compel them to do anything.
i) All SCOTUS has in paper and the faith of the people of US (which is a lot of power) and that came to being from the course the court set in Marbury
b) If you have an ambiguous statue, where you could read a statute as constitutional and as unconstitutional, the courts will resolve the question as the statute read constitutionally.
i) Rationale- All federal statutes are presumed by the court as constitutional. Because presumably theses are equal powers and when the statue is passed that they believe they got it right and it was constitutional.
(1) SO when in doubt give the reading that satisfies the constitution.
c) Structural constitutional argument- We have an understanding of gvt and if it does not purport to that understanding, then maybe it is not Con
i) (e.g. if Congress passes a statute it would be an issue to have someone in the legislature looking at it through the executive branch would be an issue—but this is forbidden by text of con).
d) The doctrine of implied repeal—the latter in time controls.
i) If have 2 statutes that conflict, and can’t read them so they don’t’ conflict, then the latter in time controls.
9) POLICY shit about judicial review:
a) Why court has power of judicial review?
i) The text alone doesn’t answer this one about judicial review.
ii) Limited gvt and the need for someone to keep political branches in check
(1) If unconstitutional laws were allowed, the judiciary would be giving the legislature unbounded power, since the laws that they enact are supposed to be circumscribed by the constitution.
(2) The gvt that is created by the Con is of limited and enumerated powers and there are certain powers given to each of the branch of gvt and certain things forbidden.
(a) Therefore you need someone to police that or there would be nothing to prevent Congress from passing that Uncon law (e.g. ex post facto).
(i) But the president could stop the bill, through veto, and the people could through elections
1. However, judges don’t stand for reelection and how they decide a case doesn’t affect their jobs. Could be that their incentives are better aligned to uphold the Con to the max.
a. Also, maybe the people are willing to let a rule go
i. (e.g. treason only needing one person to witness) to convict a bad person.
iii) “Every man for himself.”
(1) Could be when the congressman pass laws they only pass laws they believe to be Con, and the same with president signing only when he thinks it is Con, and then the judiciary will only enforce laws that they believe are Con (to be doing their duty to uphold the Con oath).
iv) That’s what judges do (interpret the law) they decide which rule controls when there is conflict.
(1) It is the province of the Court to say “what the law is.”
v) There is the “arising under” clause.
(1) The Con gives all federal courts and SCOTUS the power to decide cases that arise under the Con, and how can that be that we are to decide cases arising under the Con, if we are not give affect to the Con, if we are just to ignore it and let the statute control—would just be ignoring the lack of substantive conformity.
vi) Supremacy Clause
(1) The "Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land."
(2) Laws made "in pursuance" of the constitution are supreme over other laws.
(3) Counter
(a) "in pursuance" could mean Laws that came into being after the Constitution was written. The Constitution just preempts the Articles and the legislation made under the Articles.
vii) Upholding the "will of the people" in the sense that the Constitution was a popularly created document.
viii) The View of the Framers
(1) Judicial review was generally contemplated by the Framers, or at least not contradicted by them.
b) Counterargument to courts have power to judicial review
i) The arising under jurisdiction could just give the federal court the jurisdiction to review state laws to ensure they are in substantive conformity with the Con (and then no issue of reviewing a co-equal branch). That could also be what the arising under jurisdiction is about.
ii) The text doesn’t alone give to the power to judicial review and if the framers wanted that then they would have put it in the Con.
c) Judicial review is good because (policy):
i) Judicial review protects the power of the minority against the tyranny of the majority.
(1) The judiciary protects minority rights against oppression by the majority
(a) E.g. if want to convict an unpopular trader w/ only 1 witness for treason. The trader is an unpopular minority. Then judicial review will protect him. We know 2 witnesses because the Con says that.
ii) We pre-committed to these ideas (such as no ex post facto rules) and judicial review protects our long term future
d) Downside of judicial review-
i) The idea that we are a self governing people and representing a democracy, we are suppose to set out our own destiny, and the judiciary is unelected and unaccountable people gets to write out the outputs of democracy (5 out of 9 people) (see counter majoritarian difficulty below)
(1) But— this is the dead hand problem and presuming we think that we are bound by the Con, then all the judiciary is doing when they strike down a law is just keeping us on the path we set for ourselves (we gave assent to this).
(a) See counter majoritarian difficulty below
(i) Says it is a problem with the grey areas (i.e. where not clear if uncon) that 5 unelected, unaccounted for people get to overturn it.

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Bronck
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Re: marbury v madison exp. for a lost fellow?

Postby Bronck » Thu Jan 03, 2013 1:48 am

Nova wrote:Big picture: It established judicial review.

You gunnin for the spring already?


Haven't taken Con Law yet, but superstar prof Bobbitt at CLS spent a significant portion of his discussion on Marbury dispelling that myth.

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prezidentv8
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Re: marbury v madison exp. for a lost fellow?

Postby prezidentv8 » Thu Jan 03, 2013 2:00 am

Bronck wrote:
Nova wrote:Big picture: It established judicial review.

You gunnin for the spring already?


Haven't taken Con Law yet, but superstar prof Bobbitt at CLS spent a significant portion of his discussion on Marbury dispelling that myth.


Edited to remove possibly offensive gif.

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Nova
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Re: marbury v madison exp. for a lost fellow?

Postby Nova » Thu Jan 03, 2013 2:02 am

prezidentv8 wrote:Edited to remove possibly offensive gif.

Darn. Missed it!

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Bronck
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Re: marbury v madison exp. for a lost fellow?

Postby Bronck » Thu Jan 03, 2013 2:09 am

prezidentv8 wrote:Edited to remove possibly offensive gif.


Can you PM it? Want to see what it is lol

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bk1
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Re: marbury v madison exp. for a lost fellow?

Postby bk1 » Thu Jan 03, 2013 2:19 am

It might (likely?) won't be that important for your final. It wasn't for mine.

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prezidentv8
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Re: marbury v madison exp. for a lost fellow?

Postby prezidentv8 » Thu Jan 03, 2013 2:20 am

Nova wrote:
prezidentv8 wrote:Edited to remove possibly offensive gif.

Darn. Missed it!


Bronck wrote:
prezidentv8 wrote:
Edited to remove possibly offensive gif.


Can you PM it? Want to see what it is lol


Basically I rediscovered Maddox's web site earlier tonight and wanted an excuse to use this:

Link: http://24.media.tumblr.com/tumblr_kszx3fEjAE1qzvqipo1_400.gif


ETA: Not very offensive, but I try to keep it classy when I can.

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Nova
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Re: marbury v madison exp. for a lost fellow?

Postby Nova » Thu Jan 03, 2013 2:30 am

lol, prez.

bk1 wrote:It might (likely?) won't be that important for your final. It wasn't for mine.

Mine either.

---------------
Im bowing out of this thread

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