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· 7 min read
zach wick

This is an email based lecture on the first section of the twentieth edition of Constitutional Law by Noah R. Feldman and Kathleen M. Sullivan. It is meant to provide a framing augmentation to Section 1 of Feldman & Sullivan. The overall goal of this email series is provide a structured guided reading experience through typical legal coursework. The email content is tailored to an audience of legally curious learners who engage well with written content.


On the surface, this week's section was about the general concept of judicial review, specifically as performed by the Supreme Court of the United States. The concept of judicial review is straightforward enough, and its application in Marbury v. Madison (we'll refer to this case as Marbury for the rest of this writing) underpins the core of "separation of powers" into the legislative, judicial, and executive branches of government.

There is more to take away from the text however than just its content. This section, and its treatment of Marbury, serves as a good example of how to break the situation at hand down into distinct legal questions. The kind of thinking needed here, feels very similar to the thinking required to answer the typical tech interview question of "what happens when you type into your browser and press enter?" In the interview question, a productive answer usually involves breaking down the given process into discrete steps. In the opinion for Marbury by John Marshall, the situation at hand was "Is Marbury's commission void because it was not delivered to him?"

Marshall broke down this situation into three distinct legal questions, which the court then answered:

  1. Did Marbury have a right to receive his commission?
  2. If he did have a right, was there a legal remedy by which he could obtain it?
  3. If such a remedy did exist, was the Supreme Court the correct court to issue the writ of mandamus?

Marshall answered the question of whether Marbury had a right to receive his commission by noting that the commission was only delivered as matter of custom, and that the act of delivery was not part of what made the commission valid. The question of what exactly constitutes a valid commission requires being able to break down "a commission" into both the procedural process and actual physical commission itself. We're not going to do that here in this email (it's done in the court's opinion, which you should read), but I mention it here as a tool to put in your "think like a lawyer" toolkit.

The second question was answered by an appeal to "ubi jus ibi remedium", which is Latin for "where there is a right there is a remedy" which suggests that since the answer to the first question establishes that Marbury does in fact have a legal right to his commission, then the law must possess a way to ensure that he receives it. Marshall confirmed that the legal remedy available to Marbury was that a court should issue a writ of mandamus. This is particular type of court order by which the court can command that a government official to perform an action which they are legally required to do. The type of court order is very specific in that it can only compel a government official to take some action and cannot compel the government official to act in a particular way. For example, a court could issue a writ of mandamus to order a government official to perform a zoning inspection, but the court cannot compel that government official to find that the inspection passes.

The answer to the third question, which is to decide if the Supreme Court is the correct court to issue the writ of mandamus as the legal remedy in answer to the second question. Marshall arrives at the court's opinion here by completing something akin to a "proof by contradiction" from mathematics. A proof by contradiction only works because something cannot be both true and false — it must be either one or the other (maybe there is also a "neither" option, but that discussion seems out of scope for this newsletter). The general structure of a proof by contradiction is:

  1. State what you intend to prove as true (we'll call this P)
  2. Assume the opposite of what you're trying to prove is true instead (we'll call this ~P)
  3. Show that the negation leads to two statements that directly contradict each other (we'll call them Q and ~Q) .

Then, because something cannot be both true and false, we know that either of Q or ~Q is true, and the other is false. Because a true statement cannot imply a false statement, this means that our ~P cannot be true since it implies both Q and ~Q (and at least one of them is false remember). So, since ~P cannot be true, then P must be true — which is the thing that we were trying to show is true to begin with.

Marshall follows a similar form for his argument for his opinion. The P is this instance is "The Supreme Court's mandate can be widened by legislation" Then, by using Section 13 of the Judiciary Act of 1789, Marshall showed that the Supreme Court had original jurisdiction for this case and therefore had the authority to issue a writ of mandamus in this case. We'll call our Q statement the phrase "the Supreme Court has original jurisdiction over this case."

Next, Marshall used Section 2 of Article III of the U.S. Constitution to show that the Supreme Court only has appellate jurisdiction over this case. Under appellate jurisdiction, a court can only hear an appeal from a party on a decision by a lower court and to revise or correct the previous decision. This means that under appellate jurisdiction, the Supreme Court did not have the authority to issue the writ of mandamus that Marbury was seeking. We'll call our ~Q statement the phrase "the Supreme Court has appellate jurisdiction over this case."

Because a court cannot have both appellate and original jurisdiction over a case, then one of our statements regarding the Supreme Court's jurisdiction over this case must be false. Marshall then decided that the argument backed by the Constitution, namely that the Supreme Court only had appellate jurisdiction over this case and therefore lacked the authority to issue the writ of mandamus that Marbury was seeking, by writing

If two laws conflict with each other, the courts must decide on the operation of each. ... If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, [then] the constitution, and not such ordinary act, must govern the case to which they both apply. (Marbury, 5 U.S. at 177–78)

The importance of Marbury is contentious as the opinion didn't create the power of judicial review, it only affirmed how the Supreme Court interpreted the Constitution to allow the pre-existing power of judicial review. However, Marbury does help solidify the role that the Supreme Court views at its role to play in the federal government.

My key takeaways

  • a legal instrument (such as the commission in Marbury) has both a creation process and a physical form; Either or both may be relevant to the question at hand.
  • judicial review: A court's power to review the actions of other branches or levels of government; esp., the courts' power to invalidate legislative and executive actions as being unconstitutional.
  • when considering a given situation, it is important to break the situation down into it's distinct legal questions.
  • legal arguments seem very similar to mathematical proofs

New words and phrases


ubi jus, ibi remedium

judicial review

original jurisdiction

appellate jurisdiction

Next section

Section 2 is Supreme Court Authority to Review State Court Judgments , and it sounds riveting. As always, you can find all of the raw notes for this section and subscribe to write-ups of future sections at and on Substack.