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Constitutional Law

Marbury v. Madison

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Full-Text Articles in Law

Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson Jan 2024

Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson

Indiana Journal of Law and Social Equality

This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …


Lost In The Thicket, Brad Snyder Jan 2024

Lost In The Thicket, Brad Snyder

Touro Law Review

As part of a symposium on his biography of Felix Frankfurter, Democratic Justice, Brad Snyder revisits Baker v. Carr and explores the contrasts between Justice William Brennan’s judicially supremacist majority opinion and Frankfurter’s departmentalist dissent and unheeded warnings about empowering the judiciary. As Frankfurter wrote in his Baker dissent, he placed more faith in the U.S. Congress, as opposed to the judiciary, to protect democracy.


Constitutionalism In The Land Of The Peaceful Thunder Dragon: The Kingdom Of Bhutan's Marbury Moment, Markus G. Puder, Ngawang Choden May 2022

Constitutionalism In The Land Of The Peaceful Thunder Dragon: The Kingdom Of Bhutan's Marbury Moment, Markus G. Puder, Ngawang Choden

Georgia Journal of International & Comparative Law

No abstract provided.


Les Deux Constitutions De John Marshall : Une Relecture De L’Arrêt Marbury V. Madison, Elisabeth Zoller Sep 2020

Les Deux Constitutions De John Marshall : Une Relecture De L’Arrêt Marbury V. Madison, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.


The Constitutional Logic Of The Common Law, Douglas E. Edlin Jan 2020

The Constitutional Logic Of The Common Law, Douglas E. Edlin

Vanderbilt Journal of Transnational Law

This Article uses two concepts from philosophical logic, the transitive property and syllogistic reasoning, to examine the history and theory of the common law. More specifically, the Article uses the transitive property to challenge the claims of sovereignty theorists that parliamentary supremacy is truly the most fundamental historical and theoretical basis of the British constitution. Instead, the transitive property helps show that the history and theory of the common law tradition has long provided a role for independent courts in maintaining the rule of law as a foundational principle of the British constitution. The Article then closely analyzes the reasoning …


Mcculloch V. Marbury, Kermit Roosevelt Iii, Heath Khan Jan 2019

Mcculloch V. Marbury, Kermit Roosevelt Iii, Heath Khan

All Faculty Scholarship

This article builds on recent scholarship about the origins and creation of “our Marbury”—the contemporary understanding of the case and its significance—to argue that Marbury is in fact wholly unsuited for the role it plays in Supreme Court rhetoric and academic instruction. While Marbury is generally understood to support aggressive judicial review, or actual invalidation of a government act, it offers no guidance at all for how judicial review should be employed in particular cases—in particular, whether review should be aggressive or deferential. The actual opinion in Marbury makes no effort to justify its lack of deference to the …


Justice Scalia And The Demise Of Environmental Law Standing, Patti A. Meeks Aug 2018

Justice Scalia And The Demise Of Environmental Law Standing, Patti A. Meeks

Florida State University Journal of Land Use and Environmental Law

No abstract provided.


A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen Jan 2017

A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen

Scholarly Works

The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny …


Answering The Serious Constitutional Question: Ensuing Meaningful Review Of All Constitutional Claims, George Bach Sep 2014

Answering The Serious Constitutional Question: Ensuing Meaningful Review Of All Constitutional Claims, George Bach

West Virginia Law Review

No abstract provided.


“Philemon, Marbury, And The Passive-Aggressive Assertion Of Legal Authority", Paul J. Larkin Jr. Jan 2014

“Philemon, Marbury, And The Passive-Aggressive Assertion Of Legal Authority", Paul J. Larkin Jr.

Paul J Larkin Jr.

This short essay draws a parallel between the Apostle Paul’s Letter to Philemon and Chief Justice John Marshall’s opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). In each instance, the author claimed a legal authority to direct someone else to act—in Philemon, to order Philemon to release the slave Onesimus; in Marbury, to order the President to comply with the law—but declined to exercise that authority in that particular case. We should praise Paul’s skillfulness in avoiding a risk of prosecution for encouraging Philemon to extend Onesimus mercy for his misdeeds and to grant …


Chief Justice Roberts's Marbury Moment: The Affordable Care Act Case (Nfib V. Sebelius), Stephen M. Feldman Dec 2012

Chief Justice Roberts's Marbury Moment: The Affordable Care Act Case (Nfib V. Sebelius), Stephen M. Feldman

Stephen M. Feldman

This essay is derived from the Jerry W. Housel/Carl F. Arnold Lecture, delivered on November 3, 2012 at the University of Wyoming College of Law. The work discusses Chief Justice John Roberts's decision in the Affordable Care Act case in light of its political significance as compared to the Madison v. Marbury case. The essay briefly summarizes the ACA case and goes on to focus on Congress's commerce power. It examines the constitutional doctrine that preceded the case and then explores how Roberts changed the doctrine.


Transcript For Introduction: The Constitutional Importance Of The District Of Columbia, Jamin B. Raskin Aug 2012

Transcript For Introduction: The Constitutional Importance Of The District Of Columbia, Jamin B. Raskin

Jamin Raskin

No abstract provided.


Making A Mountain Out Of A Molehill? Marbury And The Construction Of The Constitutional Canon, Amanda Rinderle, Keith E. Whittington Feb 2012

Making A Mountain Out Of A Molehill? Marbury And The Construction Of The Constitutional Canon, Amanda Rinderle, Keith E. Whittington

Schmooze 'tickets'

No abstract provided.


Judicial Review And Diversity, Deseriee A. Kennedy Feb 2011

Judicial Review And Diversity, Deseriee A. Kennedy

Deseriee A. Kennedy

No abstract provided.


Guns, Originalism, And Cultural Cognition, Jamal Greene Jan 2010

Guns, Originalism, And Cultural Cognition, Jamal Greene

Faculty Scholarship

In a legal regime whose canonical text is Marbury v. Madison, it should be unremarkable that the Supreme Court's actions are bounded rather severely by public opinion. What makes the proposition remarkable – enough to be well worth Barry Friedman's time – is also what makes Marbury remarkable: namely, that judges so often go out of their way to deny it. Though not unheard of, it is rare for a judge to advertise that the content of a constitutional rule she is announcing is motivated by public opinion. Such an admission would be self-defeating, since it invites the charge …


Selling Originalism, Jamal Greene Jan 2009

Selling Originalism, Jamal Greene

Faculty Scholarship

Justice Scalia has described an originalist approach to interpretation as a prerequisite to faithful application of a written Constitution. If, says he, constitutional judicial review is implicit in the notion that the Constitution is paramount law, as has been settled in this country at least since Marbury v. Madison, then that review must be guided by the ordinary tools of legislative interpretation. In a democracy, serious legislative interpretation requires that judges keep faith with the meaning of the text as understood at the time of enactment, not as desired by those judges or by anyone else who does not, …


Imports Or Made-In-China: Comparison Of Two Constitutional Cases In China And The United States, Xiao Li Jan 2007

Imports Or Made-In-China: Comparison Of Two Constitutional Cases In China And The United States, Xiao Li

LLM Theses and Essays

When its economic increase attracts the global attention, China is also looking for a break-through in its judicial reform. The Qi v. Chen case (2001) was considered to be the Chinese version of Marbury v. Madison and gave rise to a heated discussion of the judicial review power in China. This article will analyze the doubts on the Qi case and the prospects of judicial review it indicates through comparison with Marbury v. Madison. Although Qi v. Chen opened the door for constitutional litigation, its dramatic facts and strained application of the Constitution threw it into question. Nevertheless, its effect …


Minority Report: John Marshall And The Defense Of The Alien And Sedition Acts, Kurt T. Lash Jan 2007

Minority Report: John Marshall And The Defense Of The Alien And Sedition Acts, Kurt T. Lash

Law Faculty Publications

In 1799, the Federalist minority of the Virginia House of Delegates produced an extended defense of the Alien and Sedition Acts. This Minority Report responded to Madison's famous Virginia Resolutions and efforts by Virginia Republicans to tar the Adams Administration with having exceeded its powers under the federal Constitution. Originally attributed to John Marshall by biographer Albert Beveridge, recent biographies of Marshall have omitted the episode or rejected Beveridge's claim. The current editors of the Papers of John Marshall omitted the Minority Report from their multi-volume collection of Marshall's work and have successfully lobbied editors of similar collections to remove …


Original Understanding And The Whether, Why, And How Of Judicial Review, William Michael Treanor Jan 2007

Original Understanding And The Whether, Why, And How Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a strong argument that the practice is grounded in the majority’s will, just as the Founders’ Constitution is. But if it is not—if, as Alexander Bickel and others have claimed, judicial review was a sleight-of-hand creation of Chief Justice Marshall in Marbury v. Madison—then judicial review is either counter-majoritarian or else must …


Against Interpretive Supremacy, Saikrishna Prakash, John Yoo May 2005

Against Interpretive Supremacy, Saikrishna Prakash, John Yoo

Michigan Law Review

Many constitutional scholars are obsessed with judicial review and the many questions surrounding it. One perennial favorite is whether the Constitution even authorizes judicial review. Another is whether the other branches of the federal government must obey the Supreme Court's interpretation of the Constitution and what, if anything, the other branches must do to execute the judiciary's judgments. Marbury v. Madison has been a full-employment program for many constitutional law scholars, including ourselves. Larry Kramer, the new Dean of Stanford Law School, shares this passion. He has devoted roughly the last decade of his career, with two lengthy law review …


Judicial Review Before Marbury, William Michael Treanor Jan 2005

Judicial Review Before Marbury, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), …


Marbury's Legacy Of Judicial Review After Two Centuries, Harry F. Tepker Jr. Jan 2004

Marbury's Legacy Of Judicial Review After Two Centuries, Harry F. Tepker Jr.

Harry F. Tepker Jr.

No abstract provided.


Judicial Review And Diversity, Deseriee A. Kennedy Jan 2004

Judicial Review And Diversity, Deseriee A. Kennedy

Scholarly Works

No abstract provided.


Marbury's Legacy Of Judicial Review After Two Centuries, Harry F. Tepker Jan 2004

Marbury's Legacy Of Judicial Review After Two Centuries, Harry F. Tepker

Oklahoma Law Review

No abstract provided.


Foreword: A Silk Purse?, John T. Noonan Jr. Aug 2003

Foreword: A Silk Purse?, John T. Noonan Jr.

Michigan Law Review

On March 2, 1801, President John Adams appointed forty-two persons to be justices of the peace in the District of Columbia. John Marshall, doubling as Secretary of State as well as Chief Justice, failed to deliver the commissions. Adams's term expired. James Madison, Marshall's successor as Secretary of State, withheld seventeen of the commissions. In 1802, William Marbury and three other appointees to this minor office brought mandamus against Madison in the Supreme Court. Madison was ordered to show cause why the writ should not issue. Congress abolished the June sitting of the Court. Only in 1803 was the case …


The Irrepressible Myth Of Marbury, Michael Stokes Paulsen Aug 2003

The Irrepressible Myth Of Marbury, Michael Stokes Paulsen

Michigan Law Review

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As …


Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet Aug 2003

Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet

Michigan Law Review

In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite …


Alternative Forms Of Judicial Review, Mark Tushnet Aug 2003

Alternative Forms Of Judicial Review, Mark Tushnet

Michigan Law Review

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …


Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole Aug 2003

Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole

Michigan Law Review

As virtually every law student who studies Marbury v. Madison learns, Chief Justice John Marshall's tactical genius was to establish judicial review in a case where the result could not be challenged. As a technical matter, Marbury lost, and the executive branch won. As furious as President Jefferson reportedly was with the decision, there was nothing he could do about it, for there was no mandate to defy. The Court's decision offered no remedy for Marbury himself, whose rights were directly at issue, and whose rights the Court found had indeed been violated. But over time, it became clear that …


Legislating Chevron, Elizabeth Garrett Aug 2003

Legislating Chevron, Elizabeth Garrett

Michigan Law Review

One of the most significant administrative law cases, Chevron v. Natural Resources Defense Council, lnc., is routinely referred to as the "counter-Marbury." The reference suggests that Chevron's command to courts to defer to certain reasonable agency interpretations of statutes is superficially an uneasy fit with the declaration in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is." According to the consensus view, Chevron deference is consistent with Marbury, as long as Congress has delegated to agencies the power to make policy by interpreting ambiguous statutory language or filling …