Well, the apology really is mine, as Randy only responded to what
appeared to be an off-list question, as indeed I had intended it to be.
I guess we all get one shot at this error -- though I am glad that mine
exposed nothing impertinent!  (Not that they ever would, of course!).
Indeed, if anyone on the list has additional insight into the "made in
Pursuance thereof" of the Supremacy Clause, I would very much like to
hear it.

John C. Eastman
Professor of Law, Chapman University School of Law
Director, The Claremont Institute Center for Constitutional
Jurisprudence


-----Original Message-----
From: Randy Barnett [mailto:[EMAIL PROTECTED]
Sent: Monday, August 25, 2003 9:11 PM
To: [EMAIL PROTECTED]
Subject: Re: The Original Meaning of the Judicial Power


My apologies to the list.  I had thought John's message to me was
off-list, as was supposed to be my response.  My reply was dashed off
too quickly before bed.  Upon reviewing what I wrote in my paper and the
Supremacy Clause, I still think the Clause makes the Constitution and
the Laws of the United States EXPRESSLY supreme over only state laws,
and only implicitly (if at all) supreme over the laws of the United
States made pursuant thereof.

Anyhow, for those who have not been following this since last week, this
all relates to my article on SSRN on "The Original Meaning of the
Judicial Power."  My point in the paper was that even the express
supremacy over state laws is only implicit support for the power of
judicial review of state laws by the route of constitutional
construction.  Direct evidence that the power of judicial nullification
exists is provided by originalist sources.  Here is the link:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=437040

I have no stake in either position, so I am open to anyone who wants to
argue--either on-list or off-list--that the Supremacy Clause applies
expressly to federal as well as to state laws.

Again, my apologies for my precipitous posting.

Randy
_____________________________________________
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 Randy Barnett
Sent: Monday, August 25, 2003 11:46 PM
To: [EMAIL PROTECTED]
Subject: Re: The Original Meaning of the Judicial Power


John,

I had not intended my assertion that the Supremacy Clause trumped state
laws to be a strong assertion that it did not apply to federal statutes.
I will tone down any language that suggests it exclusively applies to
federal statutes.

Thanks for pointing this out.

Randy

_____________________________________________
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 Eastman, John
Sent: Monday, August 25, 2003 10:23 PM
To: [EMAIL PROTECTED]
Subject: Re: The Original Meaning of the Judicial Power


Randy,

I've just had a chance to read your paper on Marbury, which has in part
pre-empted my own on a similar subject, to be delivered at the APSA this
coming Saturday"  "Judicial Review of Unenumerated Rights: Does
Marbury's Holding Apply in a Post-Warren Court World?"  In general, I
agree with your conclusions, and with the historical evidence upon which
you rely to reach them.

I am curious, though, about your repeated assertions that the supremacy
clause applies only to state laws.  I had long thought the initial part
of the clause, "and the laws of the United States which shall be made in
Pursuance thereof," (namely, in pursuance of the Constitution),
expressly applied the Constitution's supremacy to acts of Congress not
in accord with it.  (Closer question on the Treaty clause, but my own
review has convinced me that the different language there was not
intended to result in a different outcome vis-a-vis the supremacy of the
Constitution, but rather was simply designed to keep in effect treaties
that had been entered into before 1787).  You seem to think the text
does not apply to acts of Congress (though, as a structural matter, you
think it must).  Has your own research suggested a different reading of
"in Pursuance thereof" than I am assigning to it?

Much obliged,
John

John C. Eastman
Professor of Law, Chapman University School of Law
Director, The Claremont Institute Center for Constitutional
Jurisprudence


-----Original Message-----
From: Randy Barnett [mailto:[EMAIL PROTECTED]
Sent: Thursday, August 21, 2003 8:04 AM
To: [EMAIL PROTECTED]
Subject: The Original Meaning of the Judicial Power


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]
>
>
>

Reply via email to