Can you post your law school notes for marbury v. madison?"?

Answer 1

yeah sure, here you go:

MARBURY V. MADISON-1803
• F: The federalists were swept out of office by the Jeffersonians; President Adams attempted to maintain some federalists in the judiciary branch, so he made a number of “midnight judges” appointments. Marbury was appointed to one of these meaningless judgeships---signed by pres. But the secretary of state didn’t deliver it by the time Jefferson took office. Jefferson didn’t want to correct the error, so Marbury is asking the SC for a writ to compel Madison ( J’s SOS) to hand over the commission.
• Ct determines that Marbury does in fact have a right to the job, but the main problem centers around the Judiciary act of 1789 and if the SC has jurisdiction in this case.
• Writ of mandamus- order to a body to perform an act that it is required to do anyway
• Ct: Marbury-was properly appointed by president- president was acting in his legal duties, the power vested in him, so the laws of this country afford him a remedy.
• CT: here: the constitution did not grant powers to the legislative branch to create original jurisdiction for the SC-the SC has a limited number of situations where it has original jurisdiction, they are specifically outlined in article 3. IN ALL OTHER CASES- the SC has appellate jurisdiction, which congress does have the power to regulate. This case is one of original jurisdiction, but the SC does not have power vested in it by the constitution to have original jurisdiction in this case., HOWEVER: the text of the constitution is unclear if the congress can expand the SC’s original jurisdiction, but Marshall views original jurisdiction as narrow.
• The judiciary act expressly gave the SC original jurisdiction to handle writs of mandamus, BUT this directly conflicts with the constitution. Original jurisdiction is enumerated in the C, but congress can change appellate jurisdiction.
• Art. 3 is absolutely incompatible with sect. 13 of the JA, SO: this section must be struck down, the constitution is the supreme law of the land.
• Here: a writ of M is original jurisdiction, however, the constitution clearly states that this would fall under the broad appellate jurisdiction of the court, SO the constitution trumps the act, and thus the SC has no authority to issue the writ
• THIS CASE ESTABLISHED JUDICIAL REVIEW- The power of congress is not limitless, congress must adhere to the constitution, so when congress makes a law that is uncons. The SC can strike it down.
• If a law is opposite of the const, the law is uncons, and thus not valid….the cons is the supreme law of the land, in a situation of conflict, the const always wins
• Marshall uses an example: in const, says that no person shall be convicted of treason unless by testimony of 2 people, IF congress said: we have made a law saying 1 person, this law would be uncons.
• So bottom line: Judiciary act, sect 13-unconstitutional….thus Marbury can’t get his write from this court.
• Also: Marshall-POLITICAL QUESTIONS can never be answered by SC-political questions are those that arise from other branches, where the other branches offer the sole remedy ( i.e. supreme court appointments).
• Judicial review/the ability to strike a law down based on its constitutionality come from ARTICLE VI-the supremacy clause-which applies to all 3 branches and all states.
Marshall concludes that the SC’s original juris. Is limited to those cases specifically mentioned in Art 3.
When the SC determines something is uncons. They can:
1) determine it is uncons and not do anything else
2) Or they can then strike down the law-prospectively
3) Or they can declare it: null, void, and of no effect what so ever-meaning that the law never existed.
Marbury upset congress-they passed an act, and it was struck down by the SC, this is the first time the powerful check-judicial review was used.
Federalist 78- set the groundwork for judicial review, const. is will of the people
Judiciary act of 1789-passed to create inferior courts, and fill in what const authorized congress to do.
Congress can have laws invalidated-5out of 9 people can invalidate a law that 100% of congress passed, why?-checks and balances
The courts job is to SAY WHAT THE LAW IS.
In Marbury-the court said Mar. was right, he deserved job, but they had no jurisdiction to give him job.

Marshall highlights when the SC can review the President’s decisions:
Only in some cases can the SC review the President…when the president is acting in the powers granted to him by Art 2-then the SC can not review these decisions, they are exclusively granted to the president….i.e. approving cabinet members-the check to this is the congress’s approval-the court has no role. WHEN THE CHECK BELONGS TO ANOTHER BRANCH, THE COURT HAS NO ROLE!
But when the Pres fails to discharge his duty under the law, then he is answerable to the courts….i.e. Marbury-Pres had legal duty to give him judgeship, HOWEVER: Marbury went to wrong court….if he went to right court, then he would have won.
When the president is taking care of a clause of article II, if violates it-then pres under the CT.
President may claim executive priv.---seek to keep info confidential
Many countries do not have judicial review.
The relationships between co-equal branches of gov. being defined by Marshall/the court.
We are really a republic, not a democracy---a republic-reps. Decide issues, pure democracy-majority rules-people decide all issues. We give enormous power to judges-life term, plus 5 out of 9 judges can strike down a law which 100% of the population supports.
The written Constitution distrusts the common man-that’s why we have it, and judicial review-so the common man can’t simply change the rules, without an amendment.
The Judicial Act of 1789-created the SC---but SC can invalidate specific provisions of the Act, can basically do whatever they want, as long as they adhere to the concepts outlined in the Constitution.

FRICTIONAL ANALYSIS- 1) in this constitutional Law case who is in friction with whom? Judicial, executive and legislative

• Doctrine of Judicial Review: MARBURY v. MADISON
o Rule: The SC, not Congress, has the authority and duty to review the constitutionality of statutes by Congress, and to invalidate the statute if it violates the Constitution. It is the province and the duty of the judicial department to say what the law is.
o Facts: Marshall 3rd chief justice. Marshall was a slave owner, served in revolutionary war. One of best lawyers in Va. Great leader. He was responsible for an administrative change in the Supreme Court – made the court speak with one voice.
o 1803 – TJ wins presidential election. In last moment of his presidency, Adams appoints 42 midnight judges in an attempt to place federalist in the judiciary branch. William Marbury was supposed to be appointed to a justice of the peace in DC. Adam’s shows patronage to his supporters. Problem: Adams signed Marbury’s commission, but Marshall (as sec. of state) did not deliver the commission to Marbury on time. In other words, Marshall screwed up.
o Jefferson didn’t want to correct the error, so Marbury is asking the SC for a writ to compel Madison ( J’s SOS) to hand over the commission.
o Ct determines that Marbury does in fact have a right to the job, but the main problem centers around the Judiciary act of 1789 and if the SC has jurisdiction in this case.
o Court asks three questions:
o Has the applicant a right to the commission he demands? YES. Based on law of property on commissions in 1803. An already signed and sealed commission by the president is valid. Sign and seal was critical at that time.
o Does he have a remedy based on legal theory? YES. For every legal right there is a legal remedy. Marbury’s right is based on federal law.
o Can the Supreme Court issue a writ of Mandamus (remedy writ. “to hand over”)? NO!!!!
o How did the lawyer know where to bring the case? Section 13 of the Judiciary Act of 1789 – plain reading of the statute – 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 it shall have original but not exclusive jurisdiction.
o Can the court issue the writ? No, SC original jurisdiction is in article 3. Ambiguous: “with such exceptions.” EXCEPTIONS CLAUSE - refers to appellate jurisdiction of the SC. Original jurisdiction of SC – ambassadors (make foreign ambassadors show up in SC – highest court, this is a political move), jurisdiction between states (state against a state – cannot have a state subjected to a trial judge in another state, gravitas).
o CT: here: the constitution did not grant powers to the legislative branch to create original jurisdiction for the SC. SC has a limited number of situations where it has original jurisdiction, they are specifically outlined in article 3. IN ALL OTHER CASES- the SC has appellate jurisdiction, which congress does have the power to regulate. This case is one of original jurisdiction, but the SC does not have power vested in it by the constitution to have original jurisdiction in this case; HOWEVER: the text of the constitution is unclear if the congress can expand the SC’s original jurisdiction, but Marshall views original jurisdiction as narrow.
o The judiciary act expressly gave the SC original jurisdiction to handle writs of mandamus, BUT this directly conflicts with the constitution. Original jurisdiction is enumerated in the C, but congress can change appellate jurisdiction.
o Art. 3 is absolutely incompatible with sect. 13 of the JA, SO: this section must be struck down, the constitution is the supreme law of the land.
o THIS CASE ESTABLISHED JUDICIAL REVIEW- The power of congress is not limitless, congress must adhere to the constitution, so when congress makes a law that is uncons. The SC can strike it down.
o Marshall concludes that the SC’s original juris. Is limited to those cases specifically mentioned in Art 3.
When the SC determines something is uncons. They can:
1) determine it is uncons and not do anything else
2) Or they can then strike down the law-prospectively
3) Or they can declare it: null, void, and of no effect what so ever-meaning that the law never existed.
o No authority referred to in Marbury v. Madison. No concept of judicial review in other countries. First source that the court uses to demonstrate that they have the power to do this:
1. Constitution – Article 6 section 2 – Supremacy clause – applies to all branches, and states. This leads court to believe that the court has the power for judicial review, do not need case law. Additionally, blueprint for judicial review laid out in federalist papers (78). Could be troublesome because they were propaganda.
2. Federalist papers – law enacted can be invalidated
3. Checks and balances – court uses judicial review in order to check other branches of government when they are doing something they are not constitutionally expressed to do. First and foremost job of the court is to see what the law is – main job. Two main blocks of constitutionalism – separation of branches and checks and balances. On a day to day basis, judicial review is not very common. Court announces that under checks and balances the court has the duty to examine and check laws. Thus, marbury v. Madison was a slam dunk.
o 2nd Part of the decision deals with the presidency –
o Only in some cases can the SC review the President…when the president is acting in the powers granted to him by Art 2-then the SC can not review these decisions, they are exclusively granted to the president….i.e. approving cabinet members-the check to this is the congress’s approval-the court has no role. WHEN THE CHECK BELONGS TO ANOTHER BRANCH, THE COURT HAS NO ROLE!
o But when the Pres fails to discharge his duty under the law, then he is answerable to the courts….i.e. Marbury-Pres had legal duty to give him judgeship, HOWEVER: Marbury went to wrong court….if he went to right court, then he would have won.
o President is answerable to the courts when he fails to discharge his duty under the law. When is he required under law, and when not? Key provision is “take care” clause of article 2. President must take care of legal rights. Second part of this opinion also introduces the power of executive privilege. Constitutional doctrine. Ex given in marbury – president may seek confidential advice that is not discoverable at trial. Applies to the executive branch.
o Is judicial review a democratic concept? 5/9 guys that may be 90 can overturn the acts of president and congress that maybe the overwhelming country may want. Constitution reveals a distrust of common man. that’s why we have it, and judicial review-so the common man can’t simply change the rules, without an amendment. Early on, only white property owning males. We are really a republic. What’s the difference between the republic and democracy?
o Stein’s Email: "Judicial review is a counter-majoritarian force in our system."
o Let's reduce Stone's comment to a basic principle to guide YOUR study: The stupidest law imaginable, guaranteed to fail, may be unquestionably constitutional while the smartest, most guaranteed-to-achieve-its-purpose law may be blatantly violative of the Constitution. Makes sense in the context of what we've discussed so far.

Marbury v. Madison
ROL Where the Constitution, as interpreted by the Court, is in conflict with laws passed by Congress the Court may declare such law unconst and invalid.
Court has power to declare acts of congress unconst and void
It cannot be presumed that any clause in the constitution is intended to be without effect and, therefore, and such construction is inadmissible, unless the words require it
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and a paramount law of the nation, and, consequently, the theory of every such gov’t must be that an act of legislature that is repugnant to the const is void.
• 1st question, was Marbury entitled to commission?
o He was entitled to his commission b/c it was signed by the president and US seal was affixed to it by the secretary of State.
• 2nd question, since Marbury is entitled, do the laws of this country offer him a remedy?
o Yes B/c federal courts will provide remedies where there are rights.
o “there is a remedy for every right” but not really.
 I’m not gonna sue a little old lady with cancer and no money even if she injures me b/c I won’t get anything.
• 3rd questions, Could the Supreme Court issue a writ of mandamus is this instance?
o This is the constitutional issue.
o Mandamus s the proper remedy. Question is whether that writ should be issued by this court and why or why not?
 Court said that this court could not issue a remedy because hearing this case at all was outside the Supreme Court’s original jurisdiction according to Article 3
 Court’s orig jur is set in stone. Cong can alter appellate jur.
• Const specifically gives power to Cong to alter appellate jur. But const is silent w/r to that power and original jur. Therefore, it is implied that Cong does not have that power
• Court’s original jurisdiction
o Ambassadors
 Original jurisdiction for ambassadors from other countries to make the ambassadors feel more comfortable as the country was new. Ambas didn’t want to be dragged to New Jersey or some other god forsaken state.
o Controversies b/w states
 Supreme Court has original jurisdiction in cases between states because of need for sense of national unity and impartial trier of fact and law.
• What does it mean for a court to say that a law is unconstitutional? It is in conflict with the organic seminal law, the constitution, of the United States. It is a declarative act, not an action.
o When law is declared unsonct, it was void from the moment that it became law. But, people convicted under an unconstitutional law do not get relief when it is declared unconst, only helps future people.
• Sources for court to say that they have the power of judicial review:
o Const itself – Art VI § 2 Supremacy clause. This constitution, and laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.
o Blueprint for judicial review laid out in Federalist paper # 78 and elsewhere before this case was decided. Law contrary to const is not just ignored but invalidated.
o Value of checks and balances is shown in judicial review because Ct can overrule laws that majority of people wanted as shown by easy passage in congress. Judicial review is a check on other branches of gov’t. The purpose of the court is to say what the law is. Congress makes law. Pres enforces law. Court says what law is.
• “A law passed by congress in conflict with Const will be struck down by Court because judicial review gives it the power to do it.” Summary of first section of opinion.
• Court says it emphatically province of Court to say what law is.
• Is president subject to remedy issued by federal court?
o Sometimes…Pres can act without Ct having authority when president is invested / acts under his Art II powers with discretion.
o Those acts are non-judicially reviewable.
 Pres has French chef and decides to fire him because doesn’t want French people cooking for him. Does chef have remedy? No, it is at discretion of president and is, therefore, non-judicially reviewable.
 If Marbury had brought action in correct court, would Marbury have had remedy? Yes, because president does not have power to deny rights of another. Marbury’s right was vested when commission was signed and sealed and president, therefore, did not have power to deny him that commission.
 President is answerable to the court when he fails to discharge his duty under the law. When is he required under the law and when is he not? Key provision is take care clause under Art II. Since law says Marbury was legally entitled to commission, Pres has no power to deny him that.

Federalist 78
• No legislative act contrary to the Const can be valid
• The judiciary is an intermediary b/w the will of the people (the Const) and the will of their political agents (statutes). Judicial review does not make the power of the judiciary superior to that of the legislature, but rather the power of the people is superior to both and its just the judiciary’s role to determine what the will of the people is as expressed in the constitution
• The const wins out against statutes b/c the intention of the people should win out over the intention of their agents


• The judiciary’s power to review the constitutionality of acts of the other branches of gov’t gives rise to the countermajoritarian difficulty
o The judiciary may interpret the const to invalidate acts of the people’s elected agents.
o This problem decreases where judicial review is mechanical and increases where judiciary exercises discretion in its const interpretation
• Cong can change what federal judiciary has original jurisdiction over, just not what Court has original jurisdiction over

Answer 2

Even if I had gone to law school, and kept any notes I had taken, the answer would be NO. They would not fit here.

Answer 3

Am I the only person here who sees the irony of asking someone to do your law school homework for you allowing you to cheat in the "Law & Ethics" forum?

EDIT

I guess there is honor among theives.