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ArtIII.S1.1 Overview of Judicial Vesting Clause
Article III, Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Article III, Section 1 of the Constitution vests the judicial Power of the United States in the federal courts.1 Associate Justice Samuel Miller described judicial power as the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.2 The Supreme Court has explained that judicial power is the right to determine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction.3 Judicial power thus confers on federal courts the power to decide cases and to render a judgment that conclusively resolves each case.
While the Constitution provides that the judicial power shall be vested in the federal courts, the vesting of most of the judicial power is neither automatic nor mandatory. The Supreme Court exercises original jurisdiction over a limited class of cases, meaning that such cases may be filed directly in the Supreme Court rather than reaching the Court on appeal.4 That original jurisdiction has been deemed to arise directly from the Constitution.5 Outside the limited category of cases subject to original jurisdiction, the federal courts’ authority to hear cases depends on both constitutional text and implementing statutes. Two prerequisites must be present before the federal courts may hear a case: first, the Constitution must have given the courts the capacity to receive jurisdiction, and, second, an act of Congress must have conferred it.6 Congress has never vested in the federal courts all the jurisdiction that the Constitution would allow it to grant,7 and the Supreme Court has not interpreted the Constitution to require that Congress confer the entire jurisdiction it might.8
One key feature of the federal judicial power is the power of judicial review, the authority of the federal courts to declare that federal or state government actions violate the Constitution. The two essays that follow discuss the historical background of judicial review and Supreme Court doctrine related to judicial review, particularly the seminal case Marbury v. Madison.9
The general judicial power also includes certain ancillary powers of courts such as the authority to punish for contempt of their authority,10 to issue writs in aid of jurisdiction when authorized by statute,11 to make rules governing their process in the absence of statutory authorizations or prohibitions,12 to order their own process so as to prevent abuse, oppression, and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law,13 to appoint masters in chancery, referees, auditors, and other investigators,14 and to admit and disbar attorneys.15 The inherent powers of the federal courts are discussed in more detail in later essays.16
2. Justice Samuel Miller, On the Constitution 314 (1891).
3. Muskrat v. United States, 219 U.S. 346, 361 (1911).
4. U.S. Const. art. III, § 2, cl. 2.
5. See ArtIII.S2.C2.2 Supreme Court Original Jurisdiction.
6. The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812); Kline v. Burke Constr. Co., 260 U.S. 226 (1922). Some judges have expressed the opinion that Congress’s authority is limited by provisions of the Constitution such as the Due Process Clause, so that a limitation on jurisdiction that denied a litigant access to any remedy might be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F.2d 961, 965–966 (D.C. Cir. 1949), rev’d on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948), cert. denied, 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700, 703 n.5 (N.D. Calif. 1968); Murray v. Vaughn, 300 F. Supp. 688, 694–695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question.
7. For discussion of constitutional and statutory grants of federal court jurisdiction in two key areas, see ArtIII.S2.C1.11.1 Overview of Federal Question Jurisdiction and ArtIII.S2.C1.16.1 Overview of Diversity Jurisdiction.
8. See, e.g., Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799) (Justice Chase). But see Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 328–331 (1816); 3 J. Story, Commentaries on the Constitution of the United States (1833) 1584–1590; Akhil Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985).
9. 5 U.S. (1 Cr.) 137 (1803). See ArtIII.S1.2 Historical Background on Judicial Review and ArtIII.S1.3 Marbury v. Madison and Judicial Review.
10. Michaelson v. United States, 266 U.S. 42 (1924).
11. McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
12. Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).
13. Gumbel v. Pitkin, 124 U.S. 131 (1888).
14. Ex parte Peterson, 253 U.S. 300 (1920).
15. Ex parte Garland, 71 U.S. (4 Wall.) 333, 378 (1867).
16. See ArtIII.S1.4.1 Overview of Inherent Powers of Federal Courts.
ArtIII.S1.2 Historical Background on Judicial Review
One key feature of the federal judicial power is the power of judicial review, the authority of federal courts to declare that federal or state government actions violate the Constitution. While judicial review is now one of the distinctive features of United States constitutional law, the Constitution does not expressly grant federal courts power to declare government actions unconstitutional. However, the historical record from the Founding and the early years of the Republic suggests that those who framed and ratified the Constitution were aware of judicial review, and that some favored granting courts that power.
The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters.1 There were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions.2 Practically all of the Framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation.3 Alexander Hamilton argued in favor of the doctrine in the Federalist Papers.4 In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power,5 and in other legislative debates questions of constitutionality and of judicial review were prominent.6 Early Supreme Court Justices seem to have assumed the existence of judicial review.7
The Supreme Court first formally embraced the doctrine of judicial review in the 1803 case Marbury v. Madison.8 Since Marbury, judicial review has become a core feature of American constitutional law.9 While the doctrine is well established, some legal commentators have criticized judicial review, and some who support it debate its doctrinal basis or how it should be applied.10
1. Jump to essay-1Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 60–95 (1971).
2. Jump to essay-2Id. at 96–142.
3. Jump to essay-31 Max Farrand, The Framing of the Constitution of the United States 97–98 (1913) (Gerry), 109 (King); 2 Max Farrand, The Framing of the Constitution of the United States 28 (1913) (Morris and perhaps Sherman), 73 (Wilson), 75 (Strong, but the remark is ambiguous), 76 (Martin), 78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92–93 (Madison), 248 (Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 Max Farrand, The Framing of the Constitution of the United States 220 (1913) (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson. Mr. Mercer . . . disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable. 2 Max Farrand, The Framing of the Constitution of the United States 298 (1913). Mr. Dickinson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute. Id. at 299. Of course, the debates in the Convention were not available when the state ratifying conventions acted, so that the delegates could not have known these views about judicial review in order to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being uttered by Framers. 2 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 131 (1836) (Samuel Adams, Massachusetts), 196–97 (Ellsworth, Connecticut), 348, 362 (Hamilton, New York): 445–46. 478 (Wilson, Pennsylvania); 3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 324–25, 539 , 541 (1836) (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 71 (1836) (Steele, North Carolina), 156–57 (Davie, North Carolina). In the Virginia convention, Chief Justice John Marshall observed if Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard . . . They would declare it void . . . . To what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection. 3 id. at 553–54. Both Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. The Federalist No. 39 (James Madison); id. Nos. 78, 81 (Alexander Hamilton). The persons supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with the exception of the Mercer-Dickinson comments, indicates at least acquiescence if not agreements by the other Framers.
4. Jump to essay-4The Federalist No. 78 (Alexander Hamilton) (The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.).
5. Jump to essay-5In enacting the Judiciary Act of 1789, 1 Stat. 73, Congress chose not to vest federal question jurisdiction in the federal courts but to leave to the state courts the enforcement of claims under the Constitution and federal laws. In Section 25 of the Judiciary Act (1 Stat. 85), Congress provided for review by the Supreme Court of final judgments in state courts (1) where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; (2) where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity; or (3) where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed thereunder. Id. § 25, 1 Stat. 73, 85–86.
6. Jump to essay-6See in particular the debate on the President’s removal powers, discussed in ArtII.S2.C2.3.15.1 Overview of Removal of Executive Branch Officers with statements excerpted in R. Berger, Congress v. The Supreme Court 144–150 (1969). Debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. C. Warren, supra at 107–124.
7. Jump to essay-7Thus, the Justices on circuit refused to administer a pension act on the grounds of its unconstitutionally, see Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792) , and ArtIII.S1.4.4 Inherent Power to Issue Judgments. Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), a feigned suit, the constitutionality of a federal law was argued before the Justices and upheld on the merits, in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), a state law was overturned, and dicta in several opinions asserted the principle. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Justice Iredell), and several Justices on circuit, quoted in Julius Goebel, supra note 1, at 589–592.
8. Jump to essay-85 U.S. (1 Cr.) 137 (1803).
9. Jump to essay-9See ArtIII.S1.3 Marbury v. Madison and Judicial Review.
10. Jump to essay-10See, e.g., G. Gunther, Constitutional Law 1–38 (12th ed. 1991); For expositions on the legitimacy of judicial review, see L. Hand, The Bill of Rights (1958); H. Wechsler, Principles, Politics, and Fundamental Law: Selected Essays 1–15 (1961); A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1–33 (1962); R. Berger, Congress v. The Supreme Court (1969). For an extensive historical attack on judicial review, see 2 W. Crosskey, Politics and the Constitution in the History of the United States chs. 27–29 (1953), with which compare Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate Over Judicial Review, 1790–1961, in C. Beard, The Supreme Court and the Constitution 1–34 (1962 reissue of 1938 ed.), and bibliography at 133–149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.
ArtIII.S1.3 Marbury v. Madison and Judicial Review
Article III, Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Judicial review is one of the distinctive features of United States constitutional law. However, the Constitution does not expressly grant the federal courts the power to declare government actions unconstitutional. Instead, the Supreme Court established the doctrine in the 1803 case Marbury v. Madison.1
Marbury arose from a dispute over a government commission. Plaintiff William Marbury and others were appointed as justices of the peace while President John Adams was in office, and their commissions were signed but not delivered. When President Thomas Jefferson took office, the commissions were withheld on Jefferson’s express instruction. Marbury sued Secretary of State James Madison in the Supreme Court, seeking a writ of mandamus compelling delivery of the commission. He invoked the Supreme Court’s original jurisdiction under Section 13 of the Judiciary Act of 1789.2 The Supreme Court, in an opinion by Chief Justice John Marshall, agreed with Marbury that Section 13 authorized the Court to issue writs of mandamus in suits in its original jurisdiction. However, the Court declined to issue the writ, concluding instead that the Section 13 authorization was an attempt by Congress to expand the Court’s original jurisdiction beyond its constitutional limits and was therefore void.3
Chief Justice Marshall began his discussion of judicial review by opining, The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest.4 In answering the question in the affirmative, Chief Justice Marshall first recognized certain fundamental principles. The people had come together to establish a government. They provided for its organization, assigned powers to its various departments, and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose if these limits may, at any time, be passed by those intended to be restrained[.]5 Because the Constitution is a superior paramount law, unchangeable by ordinary means, . . . a legislative act contrary to the constitution is not law.6
The Chief Justice then asked, If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?7 The answer, thought the Chief Justice, was clear: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.8 If a statute and the Constitution both apply to a single case, and conflict with one another, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.9 Because the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.10 To declare otherwise, Chief Justice Marshall said, would be to permit the legislature to pass[ ] at pleasure the limits imposed on its powers by the Constitution.11
The Chief Justice then turned from the philosophical justification for judicial review as arising from the very concept of a written constitution, to specific clauses of the Constitution. The judicial power, he observed, was extended to all cases arising under the constitution.12 It was too extravagant to be maintained that the Framers had intended that a case arising under the constitution should be decided without examining the instrument under which it arises.13 Suppose, he said, that Congress laid a duty on an article exported from a state or passed a bill of attainder or an ex post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated them to support the Constitution and to enforce such laws would violate the oath.14 Finally, the Chief Justice noted that the Supremacy Clause15 gave the Constitution precedence over laws and treaties, providing that only laws which shall be made in pursuance of the constitution shall be the supreme law of the land.16
Marbury v. Madison involved federal court review of a federal statute. Since the decision in Marbury, the Supreme Court has exercised its power of judicial review to examine the constitutionality of state statutes and federal and state executive actions.17 State courts also have the authority to hear federal constitutional claims,18 and may consider the validity of state action under the federal Constitution, subject to discretionary review by the U.S. Supreme Court.19
As Marbury's doctrine of judicial review became settled law in federal court, state courts also embraced the doctrine, with state court judicial review under state constitutions established in all states by 1850.20 The decision in Marbury v. Madison has never been disturbed. Although commentators have debated the merits and scope of judicial review throughout the Nation’s history,21 the Supreme Court continues to review the constitutionality of statutes and other government actions.22
2. 1 Stat. 73, 80.
3. 5 U.S. (1 Cr.) at 173–80.
4. Id. at 176.
5. Id.
6. Id. at 177.
7. Id.
8. Id.
9. Id. at 178.
10. Id. at 177–78.
11. Id. at 178.
12. Id. at 178 (citing U.S. Const. art. III, § 2, cl. 1).
13. Id. at 179.
14. Id. at 179–80.
15. U.S. Const. art. VI, cl. 2.
16. 5 U.S. (1 Cr.) at 180.
17. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810); Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804); Cooper v. Aaron, 358 U.S. 1 (1958).
18. See ArtIII.S1.6.4 State Court Jurisdiction to Enforce Federal Law.
19. See, e.g., New York Times v. Sullivan, 376 U.S. 254 (1964) (U.S. Supreme Court case involving a First Amendment challenge to a state law libel claim that was originally litigated in the Alabama courts); Lawrence v. Texas, 539 U.S. 558 (2003) (challenge to a state law banning consensual sexual activity between people of the same sex before the U.S. Supreme Court on appeal from a state criminal conviction).
20. E. Corwin, The Doctrine of Judicial Review 75–78 (1914); Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitution Theory in the State, 1790–1860, 120 U. Pa. L. Rev. 1166 (1972).
21. See, e.g., G. Gunther, Constitutional Law 1–38 (12th ed. 1991); For expositions on the legitimacy of judicial review, see L. Hand, The Bill of Rights (1958); H. Wechsler, Principles, Politics, and Fundamental Law: Selected Essays 1–15 (1961); A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1–33 (1962); R. Berger, Congress v. The Supreme Court (1969). For an extensive historical attack on judicial review, see 2 W. Crosskey, Politics and the Constitution in the History of the United States chs. 27–29 (1953), with which compare Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate Over Judicial Review, 1790–1961, in C. Beard, The Supreme Court and the Constitution 1–34 (1962 reissue of 1938 ed.), and bibliography at 133–149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.
22. See, e.g., Iancu v. Brunetti, 139 S. Ct. 2294, 588 U.S. ___ (2019); Matal v. Tam, 137 S. Ct. 1744, 582 U.S. ___ (2017).
1800 토마스 제퍼슨이 대통령 선거에서 아담스를 이겼습니다. 1801, 3월4일 토마스 제퍼슨이 취임 하기 바로 전날 아담스 대통령은 의회와 연합하여 판사임명에 대한 새로운 법안을 통과 시켰습니다. 이 법은 본질적으로 제퍼슨대통령의 새로운 판사임명권을 좌절 시키려는 의도 였습니다. 이로인해 원고인 윌리엄 마버리는 판사로 임명 되었지만 그의 임명장은 전달 받지 못하게 되었습니다. 이에 마버리는 연방 대법원에 신임 국무장관 제임스메디슨 에게 임명장 전달을 요구하는 소송을 제기 했습니다.
원고는 임명장을 받을 권리가 있습니까?
원고는 해당 문제로 법원에 소송을 제기 할 수 있습니까?
본 법원은 임명장전달을 명령할 권한이 있습니까?
법원은 매디슨이 임명장 전달을 거부 한 것은 법적으로 효력이 없다고 판단 했으나 마버리의 만다무스영장을 승인 하지도 않았습니다. 이유인즉, 법원은 만다무스 영장을 대법원에 요청 할 수 있는 권한을 부여한 1789 Judiciary Act 가 위헌이기 때문에 헌법 3조2항에 따라 연방 법원은 해당 사안에 original jurisdiction 이 없고 오직 appellate jurisdiction 만 존재 한다고 판결 했습니다. 마샬 판사님은 1789 Judiciary Act 가 헌법에 위배되며 최고법인 헌법만이 효력이 있다고 판결 했습니다.
(이 사건을 통해 마샬 판사님은 법원의 Judicial Review , 즉, 법률을 위헌으로 선언 할 수 있는 권한을 확립 했습니다.)
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