hoffman@hdsvx1.UUCP (Richard Hoffman) (10/07/86)
In article <2169@j.cc.purdue.edu> rsk@j.cc.purdue.edu.UUCP (Wombat) writes: > ... the premise that the Supreme Court has the duty and the power to >decide whether or not a certain statute is constitutional is not explicitly >covered by the constitution; it is generally recognized as having been >established by Marbury v. Madison., wherein Chief Justice Marshall >claimed that it was the province of the judiciary to "say what the law is." >This case marked the beginning of what we now recognize as common practice, >i.e. the power of the courts to invalidate a statute on the ground that >it is unconstitutional (or to refuse to do so). I think it's a little more subtle than that. In Marbury vs. Madison, a group of properly confirmed justices of the peace were asking the court for a writ of mandamus against Madison, who was holding up the delivery of their commissions. Congress, in previous legislation (Judicial Powers Act, 1801) had granted the Supreme Court original jurisdiction to issue such a writ against government office holders when appropriate. The court found that this act conflicted with the constitution, which specified when they would have original and when they would have appellate jurisdiction. Their decision talks not so much about their duty to "say what the law is" as their more prosaic duty, given *any* two apparently conflicting pieces of law, to decide which shall apply. Given this duty, and the fact that the Constitution must be regarded as the Supreme Law (or else, they argued, what was the point of establishing it at all?), the power of judicial review arise immediately. It's interesting that in the Marbury vs. Madison case they used this power to rule that they did not have jurisdiction -- that is, they refused a new power offered to them by Congress on the grounds that it was unconstitutional. -- Richard Hoffman | "They sought it with thimbles, they sought it with care, Schlumberger WS | They pursued it with forks and hope; hdsvx1!hoffman | They threatened its life with a railway share, 713-928-4750 | They charmed it with smiles and soap." (L. CARROLL)
hoffman@hdsvx1.UUCP (Richard Hoffman) (10/08/86)
In article <844@hdsvx1.UUCP> I wrote: >... In Marbury vs. Madison, a >group of properly confirmed justices of the peace were asking the court >for a writ of mandamus against Madison, who was holding up the delivery of >their commissions. Congress, in previous legislation (Judicial Powers Act, >1801) had granted the Supreme Court original jurisdiction to issue such a >writ against government office holders when appropriate. ... Before anyone else does, I will correct my own mistake: The Judicial Powers Act was enacted more than a decade before the date I cited, in the first full session of Congress under the newly ratified constitution. 1801 was the date that Marbury et alia filed suit against Secretary of State Madison. I am sorry if my error has confused anyone; it had little bearing on the elaboration of the decision which followed. Just for the record, the case was decided by the Supreme Court in 1803; Chief Justice John Marshall, of course, wrote the opinion. -- Richard Hoffman | "They sought it with thimbles, they sought it with care, Schlumberger WS | They pursued it with forks and hope; hdsvx1!hoffman | They threatened its life with a railway share, 713-928-4750 | They charmed it with smiles and soap." (L. CARROLL)