1August 19 and 20, 2015 Discussion of Marbury will follow points I, II, III & IV

below
I. What does the Constitutional text indicate regarding judicial review? (Which branch
holds the tools to remove members of the others? How are the lower federal courts
established? Who establishes their jurisdiction? How is the jurisdiction of the U.S.
Supreme Court established?)
II. What does Chief Justice Marshall rule:
a) with respect to Marburys right to receive his commission?
Rule against Marbury
b) with respect to the authority of the judiciary to order the President to give
Marbury his commission (can the judiciary issue an order to the President as a
legal remedy)?
Yes there can be a remedy
c) with respect to the Supreme Courts jurisdiction? (What federal law is declared
unconstitutional?
There was no jurisdiction
III. Holes in Chief Justice Marshalls reasoning:
a) What portions of the decision are obiter dicta?
b) Does the decision offer a reasonable interpretation of Art. III on expansion of
the original jurisdiction of the Supreme Court?
Article 3 enumerated its original jurisdiction and that congress could not enlarge it. it
established that federal courts are courts of limited jurisdiction
c) Does the decision offer a reasonable interpretation of the Judiciary Act of 1789
to find that it authorized the Supreme Court to issue injunctions against the
President in this case? (See the text of the Act below.) Does the decision offer a
reasonable interpretation of the Judiciary Act of 1789 to find that it authorized
original jurisdiction in Marburys case?
It authorized mandamus on the original jurisdiction

IV. Lasting features:

1.
no

Can Congress expand the jurisdiction of the Federal courts beyond that provided
for under Article III?

2.

What are the circumstances under which the federal courts may engage in judicial
review? a) injury; causation; remedy/redressability; b) not a discretionary
act/political question

3.

Judicial review of Executive and Legislative Acts

What is Chief Justice Marshalls justification for judicial review? Is it convincing?

Also: Judicial review of State judicial decisions established in Martin v. Hunters Lessee
and Cohens v. Virginia though nothing on point in Art. III (easier issue?)

Judiciary Act of 1789

SEC. 13. And be it further enacted, That the Supreme Court shall have exclusive
jurisdiction of all controversies of a civil nature, where a state is a party, except
between a state and its citizens; and except also between a state and citizens of
other states, or aliens, in which latter case it shall have original but not exclusive
jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings
against ambassadors, or other public ministers, or their domestics, or domestic
servants, as a court of law can have or exercise consistently with the law of nations;
and original, but not exclusive jurisdiction of all suits brought by ambassadors, or
other public ministers, or in which a consul, or vice consul, shall be a party. And the
trial of issues in fact in the Supreme Court, in all actions at law against citizens of
the United States, shall be by jury. The Supreme Court shall also have appellate
jurisdiction from the circuit courts and courts of the several states, in the cases
herein after specially provided for; and shall have power to issue writs of prohibition
to the district courts, when proceeding as courts of admiralty and maritime
jurisdiction, and writs of mandamus, in cases warranted by the principles and
usages of law, to any courts appointed, or persons holding office, under the
authority of the United States.

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Overarching Questions

Who is the final interpreter of the Constitution? -- Under what

circumstances? For which issues?

What is the justification for the Supreme Courts authority to engage in

judicial review?/the basis of judicial legitimacy when engaged in judicial review?

How does your understanding of the basis of the legitimacy of the courts
when engaged in judicial review affect the techniques used in interpreting the
Constitution? Should judges limit themselves to textual interpretation and a
search for original meaning?