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ArtIII.S1.1.1.1 Judicial Vesting Clause: Doctrine and Practice

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 power is 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.1 It is the right to determine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction.2 The terms judicial power and jurisdiction are frequently used interchangeably, with jurisdiction defined as the power to hear and determine the subject matter in controversy between parties to a suit3 or as the power to entertain the suit, consider the merits and render a binding decision thereon.4 The cases and commentary however, support, indeed require, a distinction between the two concepts.

Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case.5 Judicial power confers on federal courts the power to decide a case and to render a judgment that conclusively resolves a case. Included within the general judicial power are the ancillary powers of courts to punish for contempt of their authority,6 to issue writs in aid of jurisdiction when authorized by statute,7 to make rules governing their process in the absence of statutory authorizations or prohibitions,8 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,9 to appoint masters in chancery, referees, auditors, and other investigators,10 and to admit and disbar attorneys.11

Shall Be Vested

The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words shall be vested in § 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary,12 the Constitution has not been read to require that Congress confer the entire jurisdiction it might.13 Thus, except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution, two prerequisites to jurisdiction must be present: first, the Constitution must have given the courts the capacity to receive it,14 and, second, an act of Congress must have conferred it.15 The fact that federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that jurisdiction exists and may not confer nonexistent jurisdiction by consent or conduct.16

The Establishment of Judicial Review

Judicial review is one of the distinctive features of United States constitutional law. It is no small wonder, then, to find that the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds is nowhere expressly conveyed. But it is hardly noteworthy that its legitimacy has been challenged from the first, and, while now accepted generally, it still has detractors and its supporters disagree about its doctrinal basis and its application.17 Although it was first asserted in Marbury v. Madison18 to strike down an act of Congress as inconsistent with the Constitution, judicial review did not spring full-blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters,19 and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions.20

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,21 and prior to Marbury the power seems very generally to have been assumed to exist by the Justices themselves.22 In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power,23 and in other debates questions of constitutionality and of judicial review were prominent.24 Nonetheless, although judicial review is consistent with several provisions of the Constitution and the argument for its existence may be derived from them, these provisions do not compel the conclusion that the Framers intended judicial review nor that it must exist. It was Chief Justice Marshall's achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional jurisprudence.

Marbury v. Madison

Chief Justice Marshall's argument for judicial review of congressional acts in Marbury v. Madison25 had been largely anticipated by Hamilton.26 Hamilton had written, for example: 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.27

At the time of the change of administration from Adams to Jefferson, several commissions of appointment to office had been signed but not delivered and were withheld on Jefferson's express instruction. Marbury sought to compel the delivery of his commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction against Secretary of State Madison. Jurisdiction was based on § 13 of the Judiciary Act of 1789,28 which Marbury, and ultimately the Supreme Court, interpreted to authorize the Court to issue writs of mandamus in suits in its original jurisdiction.29 Though deciding all the other issues in Marbury's favor, the Chief Justice wound up concluding that the § 13 authorization was an attempt by Congress to expand the Court's original jurisdiction beyond the constitutional prescription and was therefore void.30

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, Marshall began his discussion of this final phase of the case, but, happily, not of an intricacy proportioned to its interest.31 First, Marshall recognized certain fundamental principles. The people had come together to establish a government. They provided for its organization and assigned to its various departments their powers 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. Because the Constitution is a superior paramount law, unchangeable by ordinary means, . . . a legislative act contrary to the constitution is not law.32 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? The answer, thought the Chief Justice, was obvious. 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.33

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.34

If, then, the courts are to regard the constitution, and 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.35 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.36

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.37 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.38 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.39 Finally, the Chief Justice noted that the Supremacy Clause (Art. VI, cl. 2) 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.40

The decision in Marbury v. Madison has never been disturbed, although it has been criticized and has had opponents throughout our history. It not only carried the day in the federal courts, but from its announcement judicial review by state courts of local legislation under local constitutions made rapid progress and was securely established in all states by 1850.41

Footnotes

  1.  Jump to essay-1Justice Samuel Miller, On the Constitution 314 (1891).
  2.  Jump to essay-2Muskrat v. United States, 219 U.S. 346, 361 (1911).
  3.  Jump to essay-3United States v. Arrendondo, 31 U.S. (6 Pet.) 691 (1832).
  4.  Jump to essay-4General Investment Co. v. New York Central R.R., 271 U.S. 228, 230 (1926).
  5.  Jump to essay-5Williams v. United States, 289 U.S. 553, 566 (1933); Yakus v. United States, 321 U.S. 414, 467–68 (1944) (Justice Rutledge dissenting).
  6.  Jump to essay-6Michaelson v. United States, 266 U.S. 42 (1924).
  7.  Jump to essay-7McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
  8.  Jump to essay-8Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).
  9.  Jump to essay-9Gumbel v. Pitkin, 124 U.S. 131 (1888).
  10.  Jump to essay-10Ex parte Peterson, 253 U.S. 300 (1920).
  11.  Jump to essay-11Ex parte Garland, 71 U.S. (4 Wall.) 333, 378 (1867).
  12.  Jump to essay-12Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 328–331 (1816). See also 3 J. Story, Commentaries on the Constitution of the United States (1833) 1584–1590.
  13.  Jump to essay-13See, e.g., Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799) (Justice Chase). A recent, sophisticated attempt to resurrect the core of Justice Story's argument appears in Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. Rev. 205 (1985); see also Amar, Meltzer, and Redish, Symposium: Article III and the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990). Professor Amar argues from the text of Article III, § 2, cl. 1, that the use of the word all in each of the federal question, admiralty, and public ambassador subclauses means that Congress must confer the entire judicial power to cases involving those issues, whereas it has more discretion in the other six categories.
  14.  Jump to essay-14Which was, of course, the point of Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803), once the power of the Court to hold legislation unconstitutional was established.
  15.  Jump to essay-15The 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, however, 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.
  16.  Jump to essay-16Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799); Bingham v. Cabot, 3 U.S. (3 Dall.) 382 (1798); Jackson v. Ashton, 33 U.S. (8 Pet.) 148 (1834); Mitchell v. Maurer, 293 U.S. 237 (1934).
  17.  Jump to essay-17See the richly detailed summary and citations to authority in 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.
  18.  Jump to essay-185 U.S. (1 Cr.) 137 (1803). A state act was held inconsistent with a treaty in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).
  19.  Jump to essay-19J. Goebel, supra at 60-95.
  20.  Jump to essay-20Id. at 96–142.
  21.  Jump to essay-21Farrand, supra at 97–98 (Gerry), 109 (King), 2 id. at 28 (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 id. at 220 (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 id. at 298. 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 (1836). 131 (Samuel Adams, Massachusetts), 196–97 (Ellsworth, Connecticut). 348, 362 (Hamilton, New York): 445–46. 478 (Wilson, Pennsylvania), 3 id. at 324–25, 539, 541 (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 id. at 71 (Steele, North Carolina), 156–57 (Davie, North Carolina). In the Virginia convention, 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 Nos. 39, 44 at 256, 305 (James Madison) (Jacob E. Cooke ed., 1961); id. Nos. 78, 81, at 524–30, 541–52 (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.

    To be sure, subsequent comments of some of the Framers indicate an understanding contrary to those cited in the convention. See, e.g., Charles Pinckney in 1799: On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have many advocates in this country. State Trials of the United States During the Administrations of Washington and Adams 412 (F. Wharton ed., 1849).

    Madison's subsequent changes of position are striking. His remarks in the Philadelphia Convention, in the Virginia ratifying convention, and in The Federalist, cited above, all unequivocally favor the existence of judicial review. And in Congress arguing in support of the constitutional amendments providing a bill of rights, he observed: If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights, 1 Annals of Cong. 457 (1789); 5 Writings of James Madison 385 (G. Hunt ed., 1904). Yet, in a private letter in 1788, he wrote: In the state constitutions and indeed in the federal one also, no provision is made for the case of a disagreement in expounding them; and as the courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law, to stamp it with the final character. This makes the Judiciary Department paramount in fact to the legislature, which was never intended and can never be proper. Id. at 294. At the height of the dispute over the Alien and Sedition Acts, Madison authored a resolution ultimately passed by the Virginia legislature which, though milder, and more restrained than one authored by Jefferson and passed by the Kentucky legislature, asserted the power of the states, though not of one state or of the state legislatures alone, to interpose themselves to halt the application of an unconstitutional law. 3 I. Brant, James Madison: Father of the Constitution, 1787–1800 460–464, 467–471 (1950); Report on the Resolutions of 1798, 6 Writings of James Madison, op. cit., 341-406. Embarrassed by the claim of the nullificationists in later years that his resolution supported their position, Madison distinguished his and their positions and again asserted his belief in judicial review. 6 I. Brant, supra, 481-485, 488-489.

    The various statements made and positions taken by the Framers have been culled and categorized and argued over many times. For a recent compilation reviewing the previous efforts, see R. Berger, supra, chs. 3-4.

  22.  Jump to essay-22Thus, 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 supra ArtIII.S1.1.1.2.1.3 Inherent Powers of Federal Courts: Issuing Judgments. Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter, supra, 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 J. Goebel, supra, at 589-592.
  23.  Jump to essay-23In 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 § 25, 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. The ruling below was to be re-examined and reversed or affirmed in the Supreme Court . . . .
  24.  Jump to essay-24See in particular the debate on the President's removal powers, discussed supra, The Removal Power with statements excerpted in R. Berger, supra at 144-150. 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.
  25.  Jump to essay-255 U.S. (1 Cr.) 137 (1803).
  26.  Jump to essay-26The Federalist Nos. 78, 81, 521–30, 541–52 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
  27.  Jump to essay-27Id. No. 78, at 525.
  28.  Jump to essay-281 Stat. 73, 80.
  29.  Jump to essay-29The section first denominated the original jurisdiction of the Court and then described the Court's appellate jurisdiction. Following and indeed attached to the sentence on appellate jurisdiction, being separated by a semicolon, is the language saying and shall have power to issue . . . 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. The Chief Justice could easily have interpreted the authority to have been granted only in cases under appellate jurisdiction or as authority conferred in cases under both original and appellate jurisdiction when the cases are otherwise appropriate for one jurisdiction or the other. Textually, the section does not compel a reading that Congress was conferring on the Court an original jurisdiction to issue writs of mandamus per se.
  30.  Jump to essay-30Marbury v. Madison, 5 U.S. (1 Cr.) 137, 173–180 (1803). For a classic treatment of Marbury, see Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L. J. 1.
  31.  Jump to essay-315 U.S. at 176. One critic has written that by this question Marshall had already begged the question-in-chief, which was not whether an act repugnant to the Constitution could stand, but who should be empowered to decide that the act is repugnant. A. Bickel, supra at 3. Marshall, however, soon reached this question, though more by way of assertion than argument. (1 Cr.) at 177–78.
  32.  Jump to essay-325 U.S. at 176–77.
  33.  Jump to essay-335 U.S. at 177.
  34.  Jump to essay-345 U.S. at 178.
  35.  Jump to essay-355 U.S. at 177–78.
  36.  Jump to essay-365 U.S. at 178.
  37.  Jump to essay-375 U.S. at 178. The reference is, of course, to the first part of clause 1, § 2, Art. III: The judicial power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . . Compare A. Bickel, supra at 5-6, with R. Berger, supra at 189-222.
  38.  Jump to essay-385 U.S. at 179.
  39.  Jump to essay-395 U.S. at 179–80. The oath provision is contained in Art. VI, cl. 3. Compare A. Bickel, supra at 7-8, with R. Berger, supra at 237-244.
  40.  Jump to essay-405 U.S. at 180. Compare A. Bickel, supra at 8-12, with R. Berger, supra at 223-284.
  41.  Jump to essay-41E. 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).
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