Was Marbury v Madison the first judicial "power grab" ?

[CincyDem]

A question for the legal scholars here...

My read is that SCOTUS's judicial review authority, their power to rule on legislative and executive actions, is no more explicit in the Constitution than is the right to privacy. They made themselves final arbiter of constitutional interpretation when they sided with Marbury in 1803 against Madison (and by extension President Jefferson).

So...how do originalists, who look to the text of the constitution ratified 15 years before Marbury, rationalize their judicial review authority being no more than precedent - just like Roe ?

I'm not a lawyer and don't play one on television but this question has always bothered me...more so in the past couple days. I'm sure I'm missing something other than (then can do whatever the hell they want).

thanks.

[Hortensis]

1. Lol, no kidding. I believe there's little legitimate intellectual justification

for originalism and textualism. They're a constructed argument for conservatives to use to fight the liberalism that evolved out of Age of Reason and Enlightenment thinking -- which the original Constitution was strongly reflective of -- and which has been codified ever since its passage by regarding it of necessity as a living constitution. That last has worked fantastically well in a world that's changed literally unimaginably and continually ever since our founding. And still is.

Just compare a printout of the @17 pages of the U.S. Constitution (4 original on parchment) with a paper copy of a typical auto policy for a quick clue to the intent of our founding attorneys.

Or this statement of pure liberalism, though it's from our "mission statement," the Declaration of Independence. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.

[in2herbs]

2. After its ceding of abortion to the states to decide, does the USSC have any claim to

jurisdiction re appellate review or are those decisions now squarely in each state's supreme court?

[Effete Snob]

9. Huh?

The Court has not ceded the power to review state legislation to determine whether state legislation is unconstitutional.

The Court has found that, in the exercise of that power, the legislation in Dobbs was not unconstitutional.

Your question seems to assume that in order to maintain the power of judicial review, they have to actually strike down every law that comes before them for review, or else they've given up the power to do it.

[in2herbs]

10. Your response is as confusing to me as my post appears to be to you. nt

[Effete Snob]

13. Your question is:

"[D]oes the USSC have any claim to jurisdiction re appellate review?" as a consequence of this decision.

Yes. There is nothing in this decision that somehow deprives the USSC the ability to review state laws taken to the highest courts of their jurisdiction, and there is nothing in this decision that somehow deprives the USSC the ability to review the decisions of lower federal courts.

[Effete Snob]

3. Well, if I have a question about what a group believes...

...then I usually find it more productive to ask that group, instead of a group that doesn't believe what that group believes.

Every group has its rationalizations and justifications, but this one seems kind of simple:

So...how do originalists, who look to the text of the constitution ratified 15 years before Marbury, rationalize their judicial review authority being no more than precedent - just like Roe ?

Originalism is a bankrupt judicial philosophy, and it is important to bear in mind that the Constitutional text in question in Roe is the 14th Amendment, which was not enacted until 1868, so the folks running around in 1789 are kind of irrelevant anyway.

But your own question has an answer they can use, embedded with in it.

In Marbury v. Madison, who was the person named "Madison"?

https://en.wikipedia.org/wiki/James_Madison

James Madison Jr. (March 16, 1751 – June 28, 1836) was an American statesman, diplomat, and Founding Father who served as the 4th president of the United States from 1809 to 1817. He is hailed as the "Father of the Constitution" for his pivotal role in drafting and promoting the Constitution of the United States and the Bill of Rights.

So your question is "Why is a case resolved in favor of a key drafter and promoter of the Constitution considered by originalists to be consistent with original intent?"

If the answer is not obvious to you, then I would imagine that it has something to do with the fact that the person that WON the case was one of the most influential of those original intenders. I mean, if it wasn't consistent with what Madison believed his intent to have been, I think he would have said something, don't you?

[CincyDem]

29. Well - that escalated quickly (and unintentionally from my perspective).

I guess this makes the most sense with the reframed question. Thanks.

[Baitball Blogger]

4. Someone has to sue the Supreme Court to get the ball rolling?

[Effete Snob]

5. sigh...

I realize that posting stuff to DU is a pretty simple thing to do on impulse, but, I have to ask...

In the US legal system of your imagination, what court is going to have the final word on this suit against the Supreme Court?

[Baitball Blogger]

6. Dunno. I'm grasping at straws on this one.

How do you go about creating a Marbury vs. Madison that can open up that can of worms?

[Effete Snob]

7. Why would you want to?

You want to disable the court from issuing decisions like Roe v. Wade in the first place.

Why?

What is the point?

Roe v. Wade itself is premised on the fact that the Supreme Court has the power to nullify laws which it finds to be inconsistent with Constitutional authority and limits.

Without Marbury v. Madison, you don't get Roe v. Wade in the first place.

I get that people are upset and saying all kinds of bizarre things based on the same lack of grasp of how our system operates that got us into the mess we are in, but, golly.

[Baitball Blogger]

12. If it's the choice of dismantling a rogue, conservative Supreme Court or living in a dystopian

world of their creation, I'll pick door one.

[Effete Snob]

15. So, getting rid of Roe v. Wade wasn't good enough for you...

You also want to get rid of pretty much every other precedent involving fundamental rights, due process, etc..

Okay.

Hot take, but you do you.

[Baitball Blogger]

16. I'm sure that the Supreme Court will have a wake up call and realize that its institution

is nearing extinction. In order to regain its integrity, it will or should accept the kind of changes that would prevent the kind of dickering around that gave us Clarence Thomas and the last three Lying Supremes.

At least, that's what it should do, once it realizes that the majority of Americans aren't buying their nonsense.

[Effete Snob]

17. In what way is it "nearing extinction"?

It's amazing how quick the "black robed dictators" rhetoric jumps the track and lands on the other side.

All kinds of people at all kinds of times have been upset with the Supreme Court.

You think the people of Little Rock, Arkansas were "buying their nonsense"?

They weren't buying it either....



Amazingly, the court survived.

[Baitball Blogger]

18. Do you realize what the young are seeing now?

Unlike us old people, they don't know the concept of tradition, stability or integrity. That whole Greatest Generation lived by these boy scout rules and we watched them make sacrifices and accepting results even when the process went against them. It's the Silent Generation who began acting like scoundrels, and many of the Baby Boomers. So, don't count on the Millenials and Gen X or Y having as much understanding of American tradition as we did. I doubt that many of the young even thought about the Supreme Court when election time came around, but they do now. And what they are understanding is that this is a Supreme Court that flaunted precedent, denied its own process! And destabilized this country. What makes you think that the young will see its importance in the future?

[Effete Snob]

19. So what

A lot of people aren't thrilled with police either. What difference does it make?

Stop thinking young people are stupid.

What makes you think that the young will see its importance in the future?

I don't see what relationship that question has to trying to understand whatever it is you mean by the court "nearing extinction" or why you want to eliminate every decision that ever struck down an unconstitutional law.

All kinds of people have had all kinds of opinions about the Supreme Court and its decisions throughout history. "A whole lot of angry people" doesn't make the court go away or remove its authority to issue decisions that will be implemented, as they have repeatedly throughout history, at gunpoint if necessary.

I think at this point you are simply free associating and don't really have a rational premise.

[Baitball Blogger]

21. Well, that's a funny thing about opinions. You have one, and so do I.

And that's all they are. Opinions. What I do know is that the effectiveness of our institutions to protect our rights has taken a huge hit this week, using a process that most of us do not respect. But this didn't happen over night.

I'm not making up the concern that we can lose our democracy over this. That is a reality. The Supreme Court is already in the process of making itself irrelevant. And the Republican party is two steps ahead of it.

You talk like it's possible to put the genie back in the bottle. No big deal. Our side just has to pretend that the Right's abuses are okay.

I'm telling you that the up-swell is going in the other direction.

[Effete Snob]

23. So what would you say to Kagan, Sotomayor and Brown (who hasn't started yet)?

You would tell them to quit, give up and go away.

Is that correct?

Oh, and as far as what the "young are seeing"... they twice saw a majority of old fuckers vote for Trump.

[Baitball Blogger]

24. I'm not alone in my opinion.

Elizabeth Warren is brainstorming the same ideas. Bottomline, Supreme Court needs to realize we don't accept their illegitimate process. The kind of harsh words you're hearing from EW, AOC and others is what I would call laying the foundation for some drastic options to restore the Court, or find a way to make its decision pointless. If it wants to regain legitimacy, I imagine that it's going to have to accept some kind of change. Frankly, I can think of a lot of ways we can go. Biden can make some extreme executive orders that can carry us until November, and if the people decide to put their trust in the Democrats, we fucking better not sit on our hands this time.


https://www.msn.com/en-us/news/politics/elizabeth-warren-says-the-supreme-court-set-a-torch-to-the-last-of-its-legitimacy/ar-AAYT2sj

[Ocelot II]

8. It's actually a rather complicated case, but there's a pretty good explanation

here: https://en.wikipedia.org/wiki/Marbury_v._Madison

Marshall reasoned that the Constitution places limits on the American government's powers, and that those limits would be meaningless unless they were subject to judicial review and enforcement. He reasoned that the Constitution's provisions limiting Congress's power—such as the export tax clause or the prohibitions on bills of attainder and ex post facto laws—meant that in some cases judges would be forced to choose between enforcing the Constitution or following Congress. Marshall held "virtually as a matter of iron logic" that in the event of conflict between the Constitution and statutory laws passed by Congress, the constitutional law must be supreme.

Third, the Court said that denying the supremacy of the Constitution over Congress's acts would mean that "courts must close their eyes on the constitution, and see only the law." This, Marshall wrote, would make Congress omnipotent, since none of the laws it passed would ever be invalid.

Marbury makes good sense, especially the point that if there was no power of judicial review, there would be no mechanism to invalidate unconstitutional laws passed by Congress, which would mean that Congress would be all-powerful and the Constitution merely advisory and not the fundamental law of the country. However, if we are to take the Court's originalists at their word, and agree that if a principle or custom or norm wasn't written down in the Constitution in so many words it doesn't exist, then we have to conclude that Marbury was wrongly decided and there's no such thing as judicial review. And that would mean the Court would be pretty much out of business.

But I don't think we want that. Without judicial review we'd still have segregated schools and Jim Crow laws and all matter of other heinous fuckery that over the years the Supreme Court has remedied. What we do need is a better way to ensure that partisan assholes don't get appointed to the Court in the first place.

[Effete Snob]

11. Nah..

Marbury was still in good shape after the fourth round, but I think his trainer was taking money to throw the match and convince him to stay down for the count in the fifth round.

Makes as much sense as anything else here.

[Sympthsical]

25. Originalists go into things like the Federalist papers

I think originalism is being misunderstood in your view expressed here. It isn't like a literal Bible reading of the Constitution. They also look at what the writers intended at the time it was all written, so they will take a holistic view towards writings and expressed opinions of the Founders when parsing everything out (except that militia bit, eh?).

Judicial review is covered by the founders in the Federalist papers and other places. Once the supremacy clause was sealed, the Supreme Court's role was pretty much a given. Just because they never exercised it until that point doesn't mean the founders weren't well aware of what they had set up when they created the third branch.

You could take eight million guesses which of our Founders hated this stuff, and I bet you'd be right on the first try.

"This, Marshall wrote, would make Congress omnipotent, since none of the laws it passed would ever be invalid."

That's about the size of it. And all the people screaming about abolishing the Court or judicial review are completely forgetting one pretty friggin important thing - it means all the good stuff goes, too.

If the court and its powers vanished overnight, does anyone think right-wing states wouldn't go completely nuts. People often dramatically declare we live in a theocracy, etc. We don't. But you take down judicial review and the Court, and you certainly open the door to that actual possibility. Who's to say the Bible can't be the law if the Constitution can be overridden by statute law?

[Ocelot II]

28. Yes, that was an oversimplication of originalism for the sake of brevity,

but the basic point still stands: If some rule or principle wasn't expressed or observed at the time the Constitution was written, it doesn't count. Of course, that requires cherry-picking the Federalist Papers, since they were all over the place on a lot of issues; and it also means ignoring Jefferson altogether. Jefferson would have thought originalism was bullshit.

I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs.

Letter to Samuel Kercheval (July 12, 1816)

[Sympthsical]

30. Yeah, it was Jefferson

Hated it. Haaaaated it.

I did a bit of research on his views, and he was still complaining about it as late as 1823.

It's funny, but the older I get the funnier I find Jefferson. As I gain the experience of seeing projects I worked very hard on go to hell and get screwed up by others after the fact, I just imagine him down in Monticello in his later years. "Such bullshit!"

Oh, Tommy. I empathize.

[In It to Win It]

33. That is originalism in a nutshell

Cherry picking

[msfiddlestix]

34. ✔️ ✔️ ✔️ ✔️ ✔️ n/t

[treestar]

27. I've had debates with nutty right wingers

who claim that Marbury v. Madison is wrong. The SCOTUS exists only to try the cases in its original jurisdiction. Argued and argued. It is funny that they likely do approve of the Dobbs decision now though.

[In It to Win It]

32. Considering that Marbury was decided so early in the country's history

Just a few years after the constitution, I feel like they would say that judicial review is rooted in our nation’s history and traditions now.

[Unwind Your Mind]

14. Kick to read later

Interesting topic, thank you 😊

[Progressive Lawyer]

20. Federalist Papers #78: On why the judicial body has the exclusive power to interpret laws.

https://avalon.law.yale.edu/18th_century/fed78.asp

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

[Sympthsical]

26. Thank you

This is a huge given fact of what was intended with the Third Branch, and post after post keeps saying there's no evidence it was ever a thing until an illegal power grab.

Like, whut?

[The Magistrate]

22. Pretty Much, Sir

The point at issue was that the out-going Federalist adminstration of Adams appointed a number of people to positions, many of which the incoming Jefferson (Democratic-Republican) administration ignored.

Marbury sued to make them give him his post.

Chief Justice Marshall, not only Federalist but possessed of a great dislike for Jefferson (they were family), was resolved to use the court to check any 'revolutionary' legislation Jefferson might pass. He crafted quite the foxy piece of business. Marbury lost, he did not get his post, so on the face of it Jefferson's administration won. However, the ground on which Marbury lost was the declaration that the law he had relied on in bringing suit was contrary to the Constitution, and was therefore null and void. A good many citations were culled from common law jurisprudence, but the real reason behind the decision had nothing to do with any of them. It was Marshall's resolve to hamstring Jefferson that guided the ruling, not any actual consideration of law and constitutionality.

[LetMyPeopleVote]

31. Yes