Marshall concluded that Section 13 was unconstitutional because it expanded the Supreme Court’s original jurisdiction beyond what was granted to it by the Constitution. Find where he states this in the opinion. According to Marshall, Section 13 granted the Supreme Court original jurisdiction to issue writs of mandamus involving a person holding office under the authority of the United States; in this case that “person” to whom the writ would be directed was the Secretary of State who would receive the writ of mandamus commanding him to deliver the commission to William Marbury.
His conclusion is really a two-part argument:
- Section 13 grants to the Supreme Court the power to issue writs of mandamus when it utilizes its original jurisdiction. A very good argument can be made that Section 13 does not do what Marshall claimed and that, in fact, it is perfectly constitutional.
And
- That Congress cannot add to the list of cases found in the second paragraph of Article III, Section 2. A very good argument can be made that Marshall’s reading of Article III here is simply wrong: Congress can add to the Supreme Court’s original jurisdiction beyond the cases in the second paragraph of Article III, Section 2.
Let’s first take on (1) above by exploring three alternate ways to read Section 13 that preserve its constitutionality:
- The appellate jurisdiction argument. Let’s begin with a close and careful reading of the text of Section 13. The first sentence of Section 13 described when the Supreme Court would have original jurisdiction and when it would have original but not exclusive jurisdiction. Do you understand the difference between exclusive and original jurisdiction as those words are used in Section 13? (In cases of exclusive jurisdiction the Supreme Court would be the only federal court that could hear the cases. If the Supreme Court had original but not exclusive jurisdiction that would mean that it had original jurisdiction, in other words that a plaintiff could initiate a case in the Supreme Court or in other federal courts.) The third sentence deals with appellate jurisdiction and it is in this sentence—the one dealing with appellate jurisdiction—that writs of mandamus were mentioned. Thus, the argument here is that Section 13 only empowered the Supreme Court to issue writs of mandamus when utilizing its appellate jurisdiction.
If this is correct then the Supreme Court should have simply dismissed the case because the plaintiff was asking for a remedy unavailable to the Court in a situation involving original jurisdiction.
- Power v. jurisdiction argument. Notice that in the operative phrase that referred to writs of mandamus says that the Supreme Court shall have “power . . to issue writs of mandamus . . .” Notice that the word is ‘power’ not anything referring to jurisdiction. The argument here is that this phrase has nothing to do with jurisdiction and simply gave the Supreme Court the power to issue the writs “in cases warranted by the principles and usages of law . . .” Put differently the Court could have easily concluded that Section 13 didn’t expand the original jurisdiction of the Court; rather it just gave the Court the power to issue writs of mandamus under the terms in Section 13 to the persons or courts listed in Section 13.
If this is correct then Section 13 doesn’t expand the original jurisdiction of the Court; in this case the Court has the power to issue the mandamus.
- Statutory ambiguity argument. The previous two arguments begin with the Judiciary Act, find clarity in the statute, and try to reconcile it with the Constitution. Here we begin from a different perspective in which Section 13 is ambiguous and the Court concludes that the Constitution does not permit Congress to expand the original jurisdiction of the Court. The argument here is that in the midst of statutory ambiguity and constitutional clarity that the Court has a simple way to avoid finding the Judiciary Act unconstitutional. It should conclude, in the midst of ambiguity, that writs of mandamus are only available in “cases affecting Ambassadors, other public ministers and Consuls, and those in which the State shall be a Party. . .” Where does this language come from? Assume that Congress intended for the Judiciary Act to be constitutional and preserve the statute to the extent that it can preserved.
If this is correct then Section 13 is constitutional because the case must be dismissed because the remedy sought by Marbury is unavailable to the Court.
If any of the appellate jurisdiction argument, the power v. jurisdiction argument, or the statutory ambiguity argument prevail then the Court’s argument about Section 13 being unconstitutional isn’t sustainable. Under the three alternatives, the Court in (a) simply dismisses the case for want of jurisdiction because the Court has no power to issue a writ of mandamus if within its original jurisdiction pursuant to Section 13, or in (b) grants the mandamus because granting it doesn’t touch upon jurisdiction, or (c) simply dismisses the case for want of jurisdiction because the original jurisdiction of the Supreme Court under Article III, Section 2 does not include “persons holding office, under the authority of the United States.”
Let’s now address (2). First we must assume that Marshall was correct to conclude that Section 13 expanded the Supreme Court’s original jurisdiction by giving the Court original jurisdiction over “persons holding office, under the authority of the United States.” Where does this quotation come from?
Marshall’s reading is that the second paragraph of Article III, Section 2 contains two separate categories of cases, one for original jurisdiction and one for appellate jurisdiction. Where does he say this in the opinion? His argument is that the list of cases for which the Supreme Court is given original jurisdiction cannot be expanded. Can you find where in the opinion he makes this assertion? Put differently, the Supreme Court’s original jurisdiction is fixed here and can neither be expanded nor reduced.
The problem with this view is that it is inconsistent with Article III, Section 1 which only mandates the creation of the Supreme Court. Can you go through Article III, Section 1 and explain the language regarding inferior courts and why only a Supreme Court is mandated? What is the consequence of appellate jurisdiction if no lower federal courts are created? If Congress decided not to create lower federal courts then all the cases and controversies detailed in Article III, Section 2 would be heard in the Supreme Court. If this were so the Supreme Court’s original jurisdiction—do you see it—would necessarily expand beyond the list in the second sentence of Article III, Section 2.
One might frame the argument differently by saying that if Congress has the power to expand the Supreme Court’s original jurisdiction by forcing the Supreme Court to hear all federal cases and controversies why can’t it expand the Supreme Court’s original jurisdiction to hear some cases and controversies beyond those in the second sentence of Article III, Section 2? One might sum this argument up by saying that the greater power of Congress to expand the Supreme Court’s original jurisdiction to include all cases and controversies includes the lesser power to expand the original jurisdiction of the Court to some of those cases and controversies that it could otherwise deny to the federal courts.
The Section 13 Conundrum, Toward a Deeper Understanding of Article III
Marshall argues for the Court that there is only one way to view the relationship between courts and jurisdiction in Article III but the rebuttal to (2) in fact shows that there is a dynamic situation in which the nature of the federal court system created by Congress and the corresponding and necessary change in the jurisdiction of the Supreme Court and the inferior courts open up a range of options for the court system and the jurisdiction of those courts. Are there more forces at work that make the menu of constitutional options that Congress could express in a judiciary act even more complicated? Explore this question by reviewing Section 13 and as you do so give it the benefit of the doubt constitutionally. Oliver Ellsworth, the principal drafter of the Judiciary Act of 1789, surely thought it was constitutional and he knew a little bit about the subject. He participated actively in the drafting of the Constitution; he was a prominent lawyer and judge throughout his career, and he was the Chief Justice of the Supreme Court before Marshall!
The Section 13 Conundrum:
- Go through Article III, Section 2 and study the nine nodes of cases and controversies that are detailed within it to which “the judicial Power shall extend. . .” Some but not all are preceded by a hyphen. What is the difference between the first three and the latter six? Yes, there are nine. What is the inference that you can draw about the possible nature of a court system that Congress “may from time to time ordain and establish”?
- Next go to Section 13 and see how Section 13 complies with the second sentence of Article III, Section 2 with regard to “Ambassadors”? What is the difference between the two clauses that reference ambassadors in Section 13? What does Article III, Section 2 command with regard to ambassadors? Explain how Section 13 can be considered constitutional with its handling of ambassadors? What is the basis for the difference in Section 13 between the first clause and second that reference ambassadors? Where in the Constitution might one find support for Congressional power to handle ambassadors in this way?
What is the relevance of this exercise?
