Document Type



"Marbury, Section 13, and the Original Jurisdiction of the Supreme Court," 56 University of Chicago Law Review 443 (1989)


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).

Date of Authorship for this Version


Included in

Law Commons