Talk:Marbury v. Madison

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Contents 1 Article 2 Marbury redirect 3 Table 4 Background 5 Judicial review 6 Another Question-Please answer! 7 Jackson quote 8 Original Jurisdiction 9 SupremacyClaus's proposed additions 10 Words have no underlying meaning? Meanings of words cannot be determined? 11 The "duty to say what the law is" 12 Why couldn't Marbury refile? 13 Marburry vs. Madison 14 clearer language please 15 GA on hold

[edit] Article

This is a terrible article. It's not even clear, after reading a page and half of material, who sued whom! I read 3/4th of it and didn't even understand what the deal is all about. There's a lengthy discussion on the background of the case but the first paragraph should quickly and succintly state:

• who sas sued by whom and why
• result
• historical implications

So that somebody who's interested in a quick overview will know what's going on. I swear, I read the article and I had to go to google answers to seek a REAL, informative explanation. Terrible.

Coontie 15:40, 12 May 2006 (UTC)

I largely support Coontie's sentiment: this article is not the best and requires improvement, particularly the opening paragraph. I came from Commission looking for an answer was somebody forced to deliver a piece of paper with the commission on it. I've read to the end, including the section "Decision", and still I don't know if that piece of paper was (ordered to be) delivered so I'm not even going to try to correct it myself. Waerloeg 04:26, 3 July 2006 (UTC)

• I think too much detail is being put in the opening. The main thing that should be mentioned are the historical implications (i.e., Judicial review). This was the most important US Supreme Court case in history, and it's importance has nothing to do with who Marbury was, why he was suing, or what a commission is. A brief summary of the details of the case is all that is necessary in the opening, like this. --JW1805 (Talk) 21:42, 25 August 2006 (UTC)

[edit] Marbury redirect

There is a link to William Marbury (which is a good idea), but it just redirects to this article (which is bad). Someone should either remove the redirect, link, or make a stub page for Mr. Marbury. —The preceding unsigned comment was added by 70.97.166.114 (talk • contribs) 00:37, February 9, 2006.

[edit] Table

I don't like this table at all. There are far too many cases to list every single one, and selection of which cases to choose is too POV to say "preceded by" and "followed by". anthony 22:03, 29 Mar 2004 (UTC)

[edit] Background

The first paragraph says that Jefferson was inaugurated on March 4, which is correct. Then, a few paragraphs later, the article indicates that Adams signed the commisions on March 3, the same day Jefferson took office. My understanding of the history is that all of the "Midnight Justices" were confirmed by the Senate on March 3, that Adams signed and Marshall sealed them on March 3, but that they weren't all delivered before March 4, when Jefferson took office. I don't think any of them were signed or sealed on Inauguration Day, but I might be wrong about that.

Also, my Constitutional Law professor (Laurence Tribe for those in the know) indicated an interesting bit of background that I'd never heard before. According to him, John Marshall gave some of the commissions to his brother, Jim, to deliver on March 3 (including Marbury's), but Jim didn't deliver them. If some enterprising researcher want's to fact check this and include it in the background, have at it. --Kronius 20:13, 6 Apr 2005 (UTC)

[edit] Judicial review

I deleted the following from the end of the article:

"The case is widely cited to support the court's first use of the tool of Judicial review in finding that a statute or action taken by the government is unconstitutional. However, the case only applied to the Supreme Court itself, as the court was only refusing to exercise a power that it thought to be unconstitutional. The first major case in which an unconstitutionality ruling was applied to the other branches of government was Dred Scott v. Sandford."

I have no idea where the person who put this article together got this, but it's simply incorrect. The Marbury Court invalidated a portion of Section 13 the Judiciary Act of 1789 on the grounds that it exceeded the original jurisdiction granted to the Court by Section 2, Article III of the Constitution. (The merits of the view that Section 2 was intended to set a ceiling on original jurisdiction as opposed to a floor are somewhat doubtful, but Marshall apparently decided to go with this bizarre interpretation in order to stage a conflict between a statute and a provision of the Constitution.) The fact that this incidentally deprived the Court of a power that it might otherwise have exercised does not in any way alter the import of the action it took. SS451 22:03, Aug 28, 2004 (UTC)

[edit] Another Question-Please answer!

Did the Supreme Court declare the entire Judiciary Act of 1789 unconstitutional as this article says? Or just a clause within the act, as it seems to say on the Judiciary Act (United States) article? It should be clarified. -R. fiend 22:35, 12 Jan 2005 (UTC)

I believe they found only Section 13 to be unconstitutional (the section that gave the court the power to issue mandamus), not the entire act.

The Supreme Court didn't didn't declare any of the Judiciary Act unconstitutional. What Marshall said was that if the Judiciary Act meant what Marbury claimed it meant, it would be unconstitutional, therefore Marbury loses. Kronius 18:20, 7 Apr 2005 (UTC)

wait a minute...I thought that this case gave the Supreme Court more power, not that it took away from it...clarification?69.114.144.104 01:02, 14 March 2006 (UTC)

[edit] Jackson quote

For the record, the sources I consulted say that:

• The Andrew Jackson "let him enforce it" quote is apocryphal, and
• It is alleged to have been said in response to Worcester v. Georgia, not Cherokee Nation v. Georgia.

I have update the article accordingly. Gwimpey 23:42, Feb 22, 2005 (UTC)

Would you mind identifying your sources? Most sources that I've seen conflict with both of your assertions. Pencil Pusher 17:29, 24 Feb 2005 (UTC)

If the Jackson quote is false or in question why include it in the article? It sounds nice but inclusion for effect is pointless. I vote to remove it. Vonsnip 06:24, 22 November 2005 (UTC)November 2005 (UTC)

[edit] Original Jurisdiction

Marshall assumed, for no stated reason, that Article III's language regarding original jurisdiction constitutes a ceiling, not a floor, for the Supreme Court's original jurisdiction. Marshall asserted that the only alternative to a "ceiling" construction of the original jurisdiction clause would require that Congress be allowed complete discretion in determining what sort of cases shall constitute the Court's original jurisdiction, meaning that an act might cause cases "affecting ambassadors" to be heard only on appeal to the Court. Consequently, Marshall finds that the Constitution and the Judiciary Act conflict. Some have questioned whether Marshall may have intentionally construed Article III in a manner calculated to create such a conflict, finding arbitrary Marshall's question-begging conclusion that Congress is not empowered to expand the Court's original jurisdiction.

I took this out for two reasons. First, the way it is written is too POV. Second, it isn't true that (i) Marshall assumes that Art. III creates a ceiling, nor is it true that (ii) he asserts the only alternative is complete discretion. These last two positions are mutually exclusive since an assertion that the only alternative is complete discretion would be a reason for a construction of Art. III as a ceiling, therefore both (i) and (ii) can't be right. However, it turns out that both are wrong, because in the opinion, Marshall states:

If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction.

Marshall is saying that if original jurisdiction had been a floor, then Art. III would just say "The supreme court shall have original jurisdiciton in cases X, Y, Z." and end there. Because Art. III goes on to say "In all the other cases...the supreme Court shall have appellate jurisdiction" the clause has to be establishing a ceiling because otherwise the last sentence would be without meaning.

• Makes perfect sense to me. The removed text should stay removed. Postdlf 17:57, 10 Apr 2005 (UTC)

[edit] SupremacyClaus's proposed additions

N: These additions are very coherent. They list the malfeasance of John Marshall, the greatest Chief Justice, writing the greatest case at the Supreme Court. John Marshall should have disqualified himself.

You correctly point out, this wrongful decision, in violation of Article I Section 1 of the Constitution, germinated into Dred Scott that led to the Civil War. It is the most catastrophic of all cases. I am now saying it is the most illegal of all cases, as well. It should be reversed for the malfeasance involved.

SC

SC: Thanks for coming to the talk page to discuss the issue. As you are aware, Wikipedia has a strict policy of no original research, so it is not our place to make conclusive statements about (for example) the illegality of a Supreme Court decision based on our own reading of the Constitution. That being said, if there are reputable sources that draw those conclusions, it may be appropriate to discuss those references in the article, providing citations where appropriate. Perhaps we could discuss your additions one at a time here, and edit them into an acceptable form? What do you think? --Nandesuka 01:04, 23 August 2005 (UTC)

[edit] Words have no underlying meaning? Meanings of words cannot be determined?

Dear fellow editors:

Regarding the following text recently removed from the main article:

More generally, Marshall's argument for the notion of a judicial obligation to strike down laws repugnant to "the constitution" presupposes some sort of underlying meaning to the text of the U.S. Constitution which judges can divine, a highly controversial notion.

I firmly agree with the editor who removed this verbiage. I argue that no serious legal scholar would deny that the text of the Constitution -- the words of the text -- obviously have "some sort of underlying meaning." All real words in all documents, by definition, have "some sort of underlying meaning." Words do not define themselves; they have underlying meaning based on context and usage. I further argue that the idea that judges can "divine" the meaning of the words of the Constitution is not only not highly controversial, the idea is not substantially controversial at all. What may be controversial, depending on the specific court decision being considered, is a particular judge's interpretation of the meaning of particular words.

The idea that the words in the Constitution could have no underlying meaning, or that judges could not "divine" that meaning (i.e., cannot determine the meaning based on concepts of American jurisprudence) is, in my opinion, without legal merit. Famspear 16:59, 26 January 2006 (UTC)

Such tautological reasoning (words=meaning; meaning=context^usage) itself has little merit. The doubt about the ascertainability of the "meaning" of the Constitution has been a significant theme in the writings of Breyer, Posner, and Paul Brest, among many others; it is the view Robert Bork and Antonin Scalia are always responding to. But the author betrays the weakness of his own argument in this statement: I further argue that the idea that judges can "divine" the meaning of the words of the Constitution is not only not highly controversial, the idea is not substantially controversial at all. What may be controversial, depending on the specific court decision being considered, is a particular judge's interpretation of the meaning of particular words. If there is an underlying "meaning" to the Constitution, then in disputes over meaning, it will always be that one judge is right about the meaning and one judge will be wrong. Now, consider the text of the Constitution: "cruel and unusual punishment"; "due process of law". What do these expressions mean in an objective sense?

The author then ends his post with the statement that the view that my argument is "without legal merit." It is this sense of "legal" as something that exists independent of rationality that Posner rightly attacks in Overcoming Law. The idea of some overarching rationality compelling judges to reach a certain result is nonsense. Please Don't Block 05:10, 28 January 2006 (UTC)Please Don't Block

I'd say the problem lies in what "underlying meaning" means. My guess is that it refers to a secondary level of meaning below the more obvious, surface meaning. Whoever wrote the original passage you refer to seems to have felt that the primary or surface meaning of the words as written should be considered the only legitimate meaning, and that the controversy arose when justices attempted to "read into" possible deeper meanings. I don't think anyone is foolish enough to say that the constitution is meaningless, so I think with "underlying" they were referring to a second layer of meaning. The question of whether that layer exists, and whether it should be considered if it does, may be controversial indeed. -Kasreyn 10:07, 12 February 2006 (UTC)

Dear fellow editors: Reasoning in the form of "words=meaning; meaning=context^usage" may or may not be tautological and may or may not have merit -- but in any case that reasoning is not "my" reasoning. Obviously, words do not "equal" meaning and meaning does not "equal" context, etc.

And with due respect I don't see a "weakness" in my "argument" in the statements: "I further argue that the idea that judges can "divine" the meaning of the words of the Constitution is not only not highly controversial, the idea is not substantially controversial at all. What may be controversial, depending on the specific court decision being considered, is a particular judge's interpretation of the meaning of particular words."

The question "What do these expressions mean in an objective sense?" seems to imply that there must be (or somehow should be) some sort of "objective" sense to words in the constitution in order for judges to be able to "divine" the meanings of those words. Sorry, but I'm afraid I subscribe to the philosophy of one of my professors, who said "the law is whatever the courts say the law is." After having studied literally thousands of cases, I just don't have a problem with that. That does not mean that I don't sometimes find logical flaws in the "reasoning" of a court decision or otherwise "disagree" with an interpretation -- or dislike an outcome in a particular case.

Also, whatever the term "objective" was intended to mean by my fellow editor in this context, I am not overly troubled by the question of whether there is a true "objective" meaning that can be discerned. I am comforted by the certainty that judges do somehow interpret the law and ascribe to each considered text some sort of meaning ("objective" or otherwise, "correct" or otherwise) every day courts are in session. I may personally agree or disagree with the "rationality" or "logic" behind a particular decision, but I have no doubt that the judge in each case has interpreted the law and rendered a decision. Call me cynical, but I guess I got over that concern that there might not be an "objective" meaning in law about half way into the first semester of law school.

Also, the statement "It is this sense of "legal" as something that exists independent of rationality that Posner rightly attacks [ . . . ]" is interesting. Without commenting on what Posner writes on this topic (as I haven't yet read what Posner wrote), my response is to quote Holmes: "[t]he life of the law has not been logic; it has been experience" and to then paraphrase Holmes: "the life of the law is not rationality; the life of the law is deciding real cases." In this sense, "legality" (the philosophy of law) certainly can and sometimes does exist independently of rationality. Our court decisions are littered with "reasoning" that occasionally contains "logical" errors (and in that sense, a lack of "rationality"). Indeed, I took an entire course in law school on the logic of legal discourse in which we studied case law with a view to this very concern in mind: the presence of objectively illogical reasoning -- used by both advocates and judges, in arguing cases and rendering decisions, and we considered the ethical implications of intentionally using such argumentative forms.

No, my main problem with the deleted language was that I found it too imprecise -- I don't think the language clearly communicated what I believed its author was trying to say. I reiterate my earlier points: All real words in all documents, by definition, have "some sort of underlying meaning." Words do not define themselves; they have underlying meaning based on context and usage. I agree with Kasreyn's comments above: "I don't think anyone is foolish enough to say that the constitution is meaningless, so I think with "underlying" they were referring to a second layer of meaning. The question of whether that layer exists, and whether it should be considered if it does, may be controversial indeed." Yours, Famspear 23:17, 20 February 2006 (UTC)

[edit] The "duty to say what the law is"

I have added, to the main article, a famous excerpt from the text of the Marbury v. Madison opinion that I believe brings home, with telling force, the argument that judicial review (especially the duty to look to the written constitution as supreme law) is an essential element of the judicial function. This excerpt from the text is in my opinion one of the strongest parts of Marshall's writing in the case. Famspear 23:43, 27 January 2006 (UTC)

[edit] Why couldn't Marbury refile?

If I understand this article correctly, the court ruled that Marbury had a legal right to the delivery of his commission, but he had sued in the wrong place (since the Supreme Court did not have original jurisdiction).

Why, then, could he not refile his case in some lower court that would have original jurisdiction?

For comparison, in the recent case of Rumsfeld v. Padilla, the Supreme Court ruled that Padilla had sued in the wrong jurisdiction. (New York instead of South Carolina). Padilla responded by refiling his case in South Carolina. Why could Marbury not refile his case in some lower court in D.C.? Grover cleveland 08:10, 21 December 2006 (UTC)

I'd assume that the lower federal courts weren't granted the power to order the remedy, only the Supreme Court, but it was a power that the Supreme Court could not constitutionally have. Which begs the question then as to why Congress only gave it to the Supreme Court...I don't know. If the lower courts had the power however, then he could have refiled, as this dismissal by SCOTUS would have been without prejudice. Postdlf 15:54, 21 December 2006 (UTC)

[edit] Marburry vs. Madison

This case was somonly —The preceding unsigned comment was added by 206.183.126.62 (talk) 20:21, 11 January 2007 (UTC).

[edit] clearer language please

there are too many idioms and too much flowery prose. examples: -no love was lost -waxed and then waned -Like countless streams flowing into a great river that snakes its way to the sea, —The preceding unsigned comment was added by 74.73.12.33 (talk) 17:49, 21 January 2007 (UTC).

I removed a lot of additions from the last few days that, with all due respect, read more like a novel than an encyclopedia entry on a major legal decision. Much of it violated WP:OR, WP:CITE, and WP:NPOV. JCO312 03:37, 24 January 2007 (UTC)

[edit] GA on hold

GA review (see here for criteria)

1. It is well written.

   a (prose): b (structure): c (MoS): d (jargon):

2. It is factually accurate and verifiable.

   a (references): b (inline citations): c (reliable): d (OR):

3. It is broad in its coverage.

   a (major aspects): b (focused):

4. It follows the neutral point of view policy.

   a (fair representation): b (all significant views):

5. It is stable.

   

6. It contains images, where possible, to illustrate the topic.

   a (tagged and captioned): b (lack of images does not in itself exclude GA): c (non-free images have fair use rationales):

7. Overall:

   a Pass/Fail:

This article is well written, provides good background information, is readily accessible to a lay reader such as myself, and is fairly stable after a period requiring protection due to vandalism. However, I believe the following preclude its listing as a good article at the moment:

1. The following statements are uncited and require attribution, or could easily be construed as original research:

   "In Jefferson's opinion, the undelivered commissions, not having been delivered on time, were void." ("Background of the case")

   "Most legal scholars agree that Marbury's case does not fit into any of those categories of cases." ("The issue")

   "It has become the tradition in U.S. judicial opinions that issues of jurisdiction are addressed first." ("The decision") I presume there will be no trouble verifying this statement.

   "Chief Justice Marshall, however, did not address jurisdictional issues until addressing the first two questions presented above, most likely because the jurisdictional issue here also happened to be the constitutional issue". ("The decision")

   "They reason that Marshall selectively quoted the Judiciary Act, interpreting it to grant the Supreme Court the power to hear writs of mandamus on original jurisdiction." ("Criticisms")—who reasons? Who are these legal scholars?

2. The parenthetical list of cases in "Status of the judicial power before Marbury" is quite cumbersome and hampers readability. Could it be reformatted? Are wiki articles available for any of these cases besides Calder v. Bull?
3. Also in the aforementioned section, a link to the full text of Coke's opinion would be useful to support direct quotes already present.
4. Please have a look at the Manual of Style, particularly with regard to dates.
5. As per WP:GTL, the "Further reading" section should follow References and precede External links. References to Smith and Newmyer are incomplete.

Otherwise, I believe this article meets the Good Article criteria and, once these issues are addressed, may be listed. Fvasconcellos 15:22, 11 February 2007 (UTC)

Addressed your issues, mostly. (1) - I found citations for several of these, or rewrote the text to avoid the uncited claim. The only one I couldn't resolve is the one about issues of jurisdiction being addressed first, which you viewed as uncontroversial. (I just don't know how to search for it, unfortunately.) (2) Parenthetical list moved to a footnote. Wiki articles are not available for the other cases. (3) Found a link and added it in a reference. (4) Removed the link on dates like "March 2" standing alone. The one remaining is the "March 4, 1801", in which 1801 is not linked because 1801 was previously linked in the article. (5) Done; I added ISBN numbers for the incomplete refs, assuming this is what you meant. Mangojuice^talk 16:10, 12 February 2007 (UTC)

Thank you. Fvasconcellos 16:27, 12 February 2007 (UTC)