We seem to have this discussion every year or so -- but it is a discussion
worth having every year or so.
To summarize my takeaway from those discussions and some additional
research and reflection.
In 1813, the Supreme Court held that the federal circuit courts created by
the Judiciary Act of 1789 lacked jurisdiction to issue writs of mandamus.
McIntire v. Wood, 11 US 504 (1813). And in 1821, the Supreme Court held
that state courts similarly lacked jurisdiction to issue writs of mandamus
to federal officials. McClung v. Silliman, 19 US 598 (1821). Thus both the
state courts and the federal courts created by the Judiciary Act of 1789
would have been unavailable.
In 1838, the Supreme Court found that there was one court in the nation
with such mandamus jurisdiction: the circuit court for the District of
Columbia --- a court created by the Act of Feb. 27, 1801. Kendall v. US,
ex rel. Stokes [no known relation to Mike Paulsen], 37 US 524 (1838).
I find the Kendall opinion rather unpersuasive, relying as it does on the
DC court inheriting the powers of MD courts, and the reference in the Feb.
27, 1801 Act to the powers of the quickly-abolished circuit courts that had
been created by the Act of Feb. 13, 1801. And even in 1838, Kendall was
decided over three dissents.
There is considerable reason to doubt that Kendall would have come out the
same way in 1803 if Marbury had brought suit in the Circuit Court for the
District of Columbia -- bearing in mind that that court was court created
on February 27, 1801, along with the authorization for justices of the
peace for DC. Indeed, if Marbury were to file such an action in that
court, Congress could have reacted by abolishing that court. After all,
Congress did abolish the other circuit courts that had been created in
February of 1801.
As the losing counsel in Kendall put it:
"When was the jurisdiction, if ever, given? It is said in 1801, before the
case of Marbury v. Madison. The circuit court had the jurisdiction then, if
it has it now; and this Court was not unacquainted with its jurisdiction,
nor were the learned and experienced counsel of Marbury. It is asked, why,
when every question of law necessary for his success was settled by this
Court, was not the application made there then?"
37 US at 553.
I find it plausible to think that learned and experienced counsel would
conclude that bringing such an action would be a loser (Kendall coming some
35 years later), while I find the conspiracy theory as plausible as most
conspiracy theories.
Ed Hartnett
Seton Hall
Louise Weinberg
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Sent by: Discussion Subject: Re: Marbury
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08/19/03 09:34 PM
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Dear Sandy,
It is a mystery. Bloch suggests that Marbury might well have been
a Federalist plot, and Marshall might well have been in on it. Mission
accomplished, further action would have been unnecessary. Another line of
argument notices that the state courts were open. Shugerman has argued
recently that a contemporaneous Maryland case by Maryland judges similar in
position to the ousted federal circuit judges, would have discouraged the
Marbury plaintiffs. I touch on both theories in one section of my
forthcoming Virginia piece on Marbury. But my focus in that brief segment
is on the choice of forum for the motion for mandamus in 1801, rather than
on the absence of post-Marbury litigation in 1803.
Best,
Louise
At 06:06 PM 8/19/03, you wrote:
How interesting! So does this lend support to the "realist" as to why
Marbury didn't seek the "justice" that Marshall's own opinion said he was
entitled to (though not from the SC)?
sandy
At 05:41 PM 8/19/2003, you wrote:
August 19, 2003
Dear Sandy,
The Circuit Court in Washington, D.C. had jurisdiction ~ which had
survived the Repeal Act of 1802. Susan Bloch recently wrote a piece about
this. This court also had explicit mandamus power for cases against
federal officials, power the Supreme Court would go on to hold exclusive.
Best,
Louise
At 05:05 PM 8/19/03, you wrote:
He did not. As is true of everything else about Marbury, there's a debate
between legal realists--i.e., he didn't because it would have disserved the
interests of the Federalist Party--and legalists--he didn't because in fact
there was no lower court that had jurisdiction.
sandy
At 04:04 PM 8/19/2003, you wrote:
I apologize if this question is old hat to many of you. Does
anyone know off the top of his or her head if Marbury sought a writ of
mandamus in a lower court after losing in the Supreme Court? Thank you in
advance for any help on this issue.
Mike Allen
Michael P. Allen
Assistant Professor of Law
Stetson University College of Law
1401 61st Street South
Gulfport, FL 33707
Phone: (727) 562-7360
Fax: (727) 347-3738
email: [EMAIL PROTECTED]
