A Poststructural Analysis of the Syllogistic Premises of Maurbury v. Madison: The Federalists' Penumbra in the Judiciary Act of 1789 and the Cornerstone of Democracy

5 Pages Posted: 27 Oct 2018

Date Written: July 8, 2018


This article explores whether the major and minor premises of the landmark 1803 case makes an accurate syllogistic conclusion through Chief Justice John Marshall's conclusions. Why do we follow Maurbury v. Madison? Would John Marshall's reasoning beg us to accept the formulation of Article III without questioning them? The major premise is the relevant law: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. U.S. Constitution, Article III, Section 2, Clause 2: The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts [...] and writs of mandamus [...] to any courts appointed, or persons holding office, under the authority of the United States. Judiciary Act of 1789, ยง 13: I don't see any evidence about a tradition having been continued since the 1660s and I don't see it ever being legally ratified prior to the 1660s and it was only mentioned several times in passing prior to the 1660s. Again I'm not saying it was a bad idea but what I'm saying was is that there was no tradition and there was only a handful of references to it in passing when it wasn't even the main issue of the case Which people? Some educated Federalists wanted/expected judicial review to be practiced. Also, remember Jefferson just got elected; so, Marshall was pulling a fast one losing the battle of Marbury (one of Adams's midnight appointment judges -- specifically justice of the peace). You had alluded to this before. I don't see any people, except Alexander Hamilton that wanted it practiced. Maybe James Madison and John Jay. Hamilton authored No. 78. So, if John McCain/Ted Cruz/etc. with the support of a few other Senators/politicians wrote a pamphlet about a page long that nobody really agreed/thought about, and that ended up changing the history of the US Supreme Court, how would you feel? "1. The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing." "Spirit of Laws." vol. i., page 186." "This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power [1] ; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive."

Keywords: Constitutional Law, Judicial Review, Article III, Supreme Court of the United States

Suggested Citation

Lincoln IV, Charles Edward Andrew, A Poststructural Analysis of the Syllogistic Premises of Maurbury v. Madison: The Federalists' Penumbra in the Judiciary Act of 1789 and the Cornerstone of Democracy (July 8, 2018). Available at SSRN: https://ssrn.com/abstract=3210278

Charles Edward Andrew Lincoln IV (Contact Author)

University of Groningen, Faculty of Law ( email )


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