As I promised, I now have a link to my paper, The Original Meaning of the Judicial Power. It is only 22 pages.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=437040 Here is the abstract: In this paper, I refute any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. I will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress. In short, I shall demonstrate that the original meaning of the "judicial power" in Article III, included the power of judicial nullification. Many constitutional scholars who do not consider themselves to be originalists nevertheless acknowledge that originalism provides the starting point of constitutional interpretation or at least is a factor to be considered among others. It is equally important that these nonoriginalists are made aware of the substantial evidence that the original meaning of the "judicial power" included the power to nullify unconstitutional laws. _____________________________________________ Randy E. Barnett Austin B. Fletcher Professor Boston University School of Law 765 Commonwealth Ave. Boston, MA 02215 617-353-3099 (phone) 617-353-3077 (fax) http://www.RandyBarnett.com http://www.LysanderSpooner.org (Lysander Spooner page) http://www.RandyBarnett.com/SOL.htm (Structure of Liberty page) -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of guayiya Sent: Wednesday, August 20, 2003 5:30 PM To: [EMAIL PROTECTED] Subject: Re: Marbury Marshall determined that Marbury's appointment was complete and irrevocable despite his nonpossession of a commission, but that the Supreme Court lacked jurisdiction to issue a mandamus. Why, pray tell, did Marshall not simply proceed to swear him into office? Dan Hoffman Edward A Hartnett wrote: >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 > <[EMAIL PROTECTED] To: [EMAIL PROTECTED] > UTEXAS.EDU> cc: > Sent by: Discussion Subject: Re: Marbury > list for con law > professors > <[EMAIL PROTECTED] > .ucla.edu> > > > 08/19/03 09:34 PM > Please respond to > Discussion list for > con law professors > > > > > > >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] > > >
