Arguing Marbury V. Madison (Stanford Law & Politics) - Softcover

Softcover

ISBN 10: 0804752273 ISBN 13: 9780804752275

Verlag: STANFORD LAW & POLITCS, 2005

Inhaltsangabe

Marbury v. Madison, decided in 1803, is the foundation stone of the American doctrine of judicial review. Remarkably, the case was decided without the parties having presented an oral argument to the Supreme Court. This book begins with a unique transcript of an oral argument in the case, conducted before a bench of four distinguished federal judges. The transcript is followed by essays on Marburys intellectual background, its significance in U.S. constitutional history, and the way in which we might think of constitutional theory and judicial review in terms sensitive to the historical and political contexts in which the practice persists. Distinguished commentators question some of the claims made in the essays, and offer their own perspectives on Marburys importance.

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Über die Autorinnen und Autoren

Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at Georgetown University.

Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at Georgetown University.

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Marbury v. Madison, decided in 1803, is the foundation stone of the American doctrine of judicial review. Remarkably, the case was decided without the parties having presented an oral argument to the Supreme Court. This book begins with a unique transcript of an oral argument in the case, conducted before a bench of four distinguished federal judges. The transcript is followed by essays on Marbury’s intellectual background, its significance in U.S. constitutional history, and the way in which we might think of constitutional theory and judicial review in terms sensitive to the historical and political contexts in which the practice persists. Distinguished commentators question some of the claims made in the essays, and offer their own perspectives on Marbury’s importance.

Aus dem Klappentext

Marbury v. Madison, decided in 1803, is the foundation stone of the American doctrine of judicial review. Remarkably, the case was decided without the parties having presented an oral argument to the Supreme Court. This book begins with a unique transcript of an oral argument in the case, conducted before a bench of four distinguished federal judges. The transcript is followed by essays on Marbury s intellectual background, its significance in U.S. constitutional history, and the way in which we might think of constitutional theory and judicial review in terms sensitive to the historical and political contexts in which the practice persists. Distinguished commentators question some of the claims made in the essays, and offer their own perspectives on Marbury s importance.

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Arguing Marbury v. Madison

Stanford University Press

Copyright © 2005 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-5227-5

Contents

Contributors............................................................................................xiIntroduction............................................................................................1Section I. The Oral Argument in Marbury v. Madison1. Transcript of the Oral Argument in Marbury v. Madison................................................132. David A. Strauss, On Having Mr. Madison as a Client..................................................38Section II. Perspectives on Marbury v. Madison3. Suzanna Sherry, The Intellectual Background of Marbury v. Madison....................................47COMMENT: Susan Low Bloch, Marbury Redux.................................................................594. Barry Friedman, The Myths of Marbury.................................................................65COMMENT: Douglas Reed, Judicial Review and the Stages of Marbury........................................885. Stephen M. Griffin, The Age of Marbury: Judicial Review in a Democracy of Rights.....................104COMMENT: Vicki C. Jackson, A Democracy of Rights: The Dark Side?........................................147COMMENT: Louis Michael Seidman, Marbury and the Authoritarian Straddle..................................160Notes...................................................................................................167Index...................................................................................................209

Chapter One

Transcript of the Oral Argument in Marbury v. Madison

(Georgetown University Law Center, February 14, 2003)

Marshal: All rise. Oyez, oyez, this honorable Court is now in session.

Judge Edwards: The matter of Marbury versus Madison. We will hear from petitioner, plaintiff please.

Professor Tushnet: May it please the Court. Judge Marbury's case depends on establishing a number of propositions. With your permission I will start with one of them and then expand into others that seem worth exploring to you. I would like to start with the proposition that this Court has jurisdiction to issue a writ of mandamus if it is warranted pursuant to Section 13 of the Judiciary Act. That Act provides-to excerpt it in ways that may need exploration-that the Supreme Court shall have power to issue writs of mandamus in cases warranted by the principles and uses of law to any court appointed or persons holding office ...

Judge Sotomayor: You are reading part of that sentence.

Professor Tushnet: Yes, I realize that.

Judge Sotomayor: But it's a very important part you're detaching it from. Professor Tushnet: Yes. The structure of the statute and the policies that underlie it and then the structure of the judiciary provisions taken as a whole make it sensible to read the provision as authorizing this Court to issue a writ of mandamus in an original case.

Judge Sotomayor: Maybe sensible as a policy matter but not one of construction of the sentence. Professor Tushnet: Let me explore the structure of the provision as a whole and then the particular sentence in which that occurs.

Judge Katzmann: Which edition are you using, the Folwell edition or the Peters edition?

Professor Tushnet: I'm afraid I don't know where I've gotten this copy from.

Judge Katzmann: The Folwell edition which I understand the Court may have had access to, there the punctuation mark is a colon rather than a semi-colon and begins with a capital A. Does that make any difference to your argument?

Professor Tushnet: Our view is that whether it is a colon or a semi-colon, the structure of the section identifies four separate grounds of jurisdiction for the Court. The first sentence enumerates original exclusive jurisdiction in a certain category of cases. That sentence then has a semi-colon with another section that says original but not exclusive jurisdiction. The next sentence says the Supreme Court shall have appellate jurisdiction. That's clearly a third item, and then there is this final provision referring to issues writs of prohibition and writs of mandamus. Whether that be separated by a semi-colon or a colon, it seems best read as adding a fourth ground of jurisdiction for this Court. So ...

Judge Sotomayor: If it's not read that way and it stays attached to its preceding clause, then we would only have the right of appellate review.

Professor Tushnet: If this fourth clause or set of clauses is read as modifying the first set of clauses in that sentence, then it would justify only writs of mandamus in cases where the Court already has appellate jurisdiction with one possible qualification. The clause says "to any courts appointed or persons holding office under the authority of the United States," and although it's possible to read the persons holding office clause as tied to the existence of a case in a lower court, again the structure-again, "any courts appointed or persons holding office"-if that's read as any persons holding office, it would seem to refer more broadly to a group, not merely clerks of the court and the like. We do not contend that the reading that this clause confers original jurisdiction on the Supreme Court is the only possible reading of the clause. It makes sense structurally in terms of this statute, in terms of this provision. It also makes sense as a matter of policy that Congress could reasonably make a judgment that issuing writs of mandamus to high federal officials should be something left to the judgment of this Court by conferring jurisdiction on you to do so. That would be true whether or not there was jurisdiction in any other court to do so. You might decide that, with respect to the Secretary of State as in this case, it's appropriate for you to be the body issuing a writ of mandamus but, with respect to some customs officials in New York, another court would be the appropriate court

Judge Edwards: Is it correct that implicit in your argument you have no other base, you are conceding there is no other possible basis for jurisdiction, you either win under Section 13 on the jurisdictional question or you are out of court?

Professor Tushnet: We do rest on Section 13, yes.

Judge Katzmann: So in part you are making a geographic argument, saying that with respect to customs officials the concerns are different than the Secretary of State.

Professor Tushnet: There is a component of a geographic concern, but-I'll get to this in just a moment-that concern could be alleviated by identifying jurisdiction in a local District of Columbia court to issue a writ of mandamus that would not be available to any other court, any other lower federal court. We believe ...

Judge Sotomayor: Would it be a more natural reading for us to assume that our original jurisdiction is limited to those cases that the Constitution gave us original jurisdiction and to types of officers encompassed in that, ambassadors, ministers, etc., and that anybody else should be subject to appellate jurisdiction only? If a policy question was at issue the Congress established the policy, it told us who we should hear from originally.

Professor Tushnet: Addressing that argument requires, we believe, attention to the exceptions clause of Article III, Section 2. If I...

Details zur Ausgabe

• Verlag: STANFORD LAW & POLITCS
• Erscheinungsdatum: 2005
• Sprache: Englisch
• ISBN 10: 0804752273
• ISBN 13: 9780804752275
• Einband: Taschenbuch
• Anzahl der Seiten: 224
• Herausgeber: Tushnet Mark
• Kontakt zum Hersteller: Mare Nostrum Group B.V.; gpsr@mare-nostrum.co.uk; ; Doelen 72; Breda; 4831 GR; Niederlande