Marbury, Section 13, and the Original Jurisdiction of the Supreme Court

Abstract

In this year marking the Bicentennial of the Judiciary Act of 1789, and in a symposium designed to commemorate that Act, it might seem perverse, if not downright gauche, to begin by reminding the reader that § 13 of this Act was the only congressional provision held unconstitutional by the Supreme Court for the first third of our Constitution's history. (The case, of course, was Marbury v Madison.) I nevertheless begin this way because I believe that a careful re-examination of the narrow constitutional issues raised by § 13 will yield important insights into larger and much debated issues of constitutional law. And the icing on the (200th birthday) cake is that such a re-examination will acquit § 13 of the Marbury Court's charge of unconstitutionality-surely a fitting message to deliver on this celebratory occasion (even though it raises some problems for me about what I shall be able to write without perversity or gaucherie fourteen years hence, on the Bicentennial of Marbury itself).