One Court

Article III Section I of the Constitution states that The Judicial Power of the United States, shall be vested in one supreme Court. Section 2 of Article III states that The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties.... Here then, is the entire power expressed of the United States Judiciary. Yet from these words comes perhaps one of the most important principles of constitutional law: the power of the judiciary to interpret the Constitution itself.

We call a court's power to hear cases jurisdiction.

It was by no means inevitable that the Supreme Court would become the final arbiter of the meaning of the Constitution. The President and Congress both swear an oath to uphold the Constitution. The legislature could possibly have claimed power to interpret the Constitution superior to the other tow branches. And, at times in our history, Presidents have actually suggested that the Constitution affords the President right to interpret the Constitution and ignore the rulings of the judicial branch in matters especially affecting presidential powers. How then did it become universally accepted that the Supreme Court's view of the Constitution trumps the view of other two branches?

The foundation of this power lies in the early case, Marbury v. Madison.

Shortly before the end of his term as President, John Adams of the Federalist party nominated a number of fellow Federalists to fill various patronage positions. The Senate approved the appointments just before Jefferson became President. These "midnight appointments" sought to frustrate the power of the new President, Jefferson, by saddling him with appointees hostile to the new administration. Jefferson's Secretary of State, James Madison, refused to provide these appointees with official sealed commissions which had previously been signed by President Adams, but not delivered. Marbury, who had been appointed a Justice of the Peace, sought in the United States Supreme Court a writ of mandamus, that is an order commanding Madison to issue his commission.

The opinion of the Court was written by Chief Justice John Marshall, himself a leading federalist. The former federalist President and the former federalist Senate had, if you will, conspired to defeat the will of the people by these last minute appointments. Would the federalist Supreme Court now force Jefferson and Madison honor these appointments and deliver the commissions. In his opinion, Marshall wrote that Marbury clearly had a legal right to his office, for which there must be a legal remedy. Moreover, despite his constitutionally recognized position, Madison was subject to judicial writs, the Chief Justice wrote.

• "If one of the heads of departments commits any illegal act, under colour of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, then, can his office exempt him from this particular mode of deciding on the legality of his conduct if the case be such a case as would, were any other individual the party complained of, authorize the process?"

Her lies the foundation of the Supreme Court's assertion of authority to issue binding orders to the Executive Branch. Would a power struggle now follow, in which President Jefferson, just recently elected, tested his popularity against the unelected federalist judges? Justice Marshall hit upon a clever device to avoid an early test of practical power, while asserting supremacy over both other branches at the same time. The sole question remaining, Justice Marshall wrote, was whether the Supreme Court had the power (the jurisdiction) to issue that writ.

• "The constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and, consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States."

• "In the distribution of this power it is declared that "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction."

Original jurisdiction, is the power to hear a case in the first instance; it differs from appellate jurisdiction, which consists of a court's power to review the decisions of inferior courts. The Court might have used its power in Marbury v. Madison to demonstrate its ability to force the President or Cabinet officers to obey judicial mandates. But Marshall sought a greater power still: the power to declare an act of congress, signed by the President, unconstitutional. Marshall pointed out that the Constitution granted to the Supreme Court only appellate jurisdiction in most cases. Marbury's case, however, arose under the Judiciary Act, passed by the Congress, which purported to grant to the Supreme Court jurisdiction (power) to issue original writs of mandamus in the first instance, not just on appeal. Marshall wrote that this provision of the Judiciary Act exceeded the powers granted the Supreme Court, and was thus unconstitutional. The Supreme Court must follow the Constitution, as the supreme law of the land. Jefferson and Madison were wrong; they were subject to judicial power, but Congress had violated the Constitution by purporting to grant this power to the Supreme Court, when it could only be assigned to inferior federal (or state) courts.

• "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. 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."

• "Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. "This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which according to the principles and theory of our government is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be given to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection. .... "

• ...the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as, according to the best of my abilities and understanding agreeably to the constitution and laws of the United States.' Why does a judge swear to discharge his duties agreeably to the constitution of the United States if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?"

By declaring the Judiciary Act's grant of original jurisdiction unconstitutional, the Supreme Court seemingly gave Madison and Jefferson a victory. But the victory came at a price, for by recognizing the decision in Marbury v. Madison, Jefferson was in essence acceding to the proposition that the Supreme Court could refuse to enforce a law if the Court found the law to be unconstitutional.

In the following pages, we show how Fletcher v. Peck established the Court's power to entertain suits against unconstitutional state actions. Then we discuss judicial review of State Court decisions and Congressional authority over federal court jurisdiction. Next we discuss the Case or Controversy: requirement and ripeness, mootness, standing. In the last page (for now) we discuss the case or controversy requirement and Taxpayer suits.