When
Roland
Burris
and
his
attorneys
met
with
the
press
this
morning
after
having
been
denied
a
seat
in
the
Senate,
I
was
expecting
to
hear
a
citation
to
Powell
v.
McCormack,
the
case
of
Adam
Clayton
Powell
--
http://caselaw.lp.findlaw.com/...
.
I
was
not
expecting
to
hear
a
citation
to
Marbury
v.
Madison
--
http://caselaw.lp.findlaw.com/...
In
Powell,
the
Court
held
that
the
House
of
Representatives
had
no
authority
to
refuse
to
seat
Powell:
Further,
analysis
of
the
"textual
commitment"
under
Art.
I,
5
(see
Part
VI,
B
(1)),
has
demonstrated
that
in
judging
the
qualifications
of
its
members
Congress
is
limited
to
the
standing
qualifications
prescribed
in
the
Constitution.
Respondents
concede
that
Powell
met
these.
Thus,
there
is
no
need
to
remand
this
case
to
determine
whether
he
was
entitled
to
be
seated
in
the
90th
Congress.
Therefore,
we
hold
that,
since
Adam
Clayton
Powell,
Jr.,
was
duly
elected
by
the
voters
of
the
18th
Congressional
District
of
New
York
and
was
not
ineligible
to
serve
under
any
provision
of
the
Constitution,
the
House
was
without
power
to
exclude
him
from
its
membership.
Under
this
precedent,
the
Senate
would
be
required
to
seat
Burris
if
they
are
presented
with
his
credentials
from
the
state
that
selected
him.
The
problem,
at
the
moment,
is
that
Burris
doesn't
have
the
certificate
from
the
Secretary
of
State,
because
the
Secretary
of
State
has
refused
to
issue
it.
That
is
apparently
where
Burris's
attorneys
think
that
Marbury
v.
Madison
comes
in.
In
1800,
Thomas
Jefferson
defeated
John
Adams,
becoming
the
third
President
of
the
United
States.
Although
the
election
was
decided
on
February
17,
1801,
Jefferson
did
not
take
office
until
March
4,
1801.
Until
that
time,
the
lame-duck
Adams
and
the
Federalist-controlled
Congress
were
still
in
power.
Congress
passed
the
Judiciary
Act
of
1801.
This
act
modified
the
Judiciary
Act
of
1789,
establishing
ten
new
district
courts,
expanding
the
number
of
circuit
courts
from
three
to
six,
and
adding
additional
judges
to
each
circuit,
giving
the
President
the
authority
to
appoint
Federal
judges
and
justices
of
the
peace.
The
act
also
reduced
the
number
of
Supreme
Court
justices
from
six
to
five,
effective
upon
the
next
vacancy
in
the
Court.
On
March
3,
the
day
before
his
term
was
to
end,
Adams,
in
an
attempt
to
stymie
the
incoming
Democratic-Republican-controlled
Congress
and
administration,
appointed
16
Federalist
circuit
judges
and
42
Federalist
justices
of
the
peace
to
offices
created
by
the
Judiciary
Act
of
1801.
These
appointees,
the
infamous
"Midnight
Judges",
were
all
located
in
the
Washington
and
Alexandria
area.
One
of
these
appointees
was
William
Marbury.
An
ardent
Federalist,
Marbury
was
active
in
Maryland
politics
and
a
vigorous
supporter
of
the
Adams
presidency.
Adams
appointed
him
to
the
position
of
justice
of
the
peace
in
the
District
of
Columbia.
On
the
following
day,
the
appointments
were
approved
by
the
Senate;
however,
to
go
into
effect,
the
commissions
had
to
be
delivered
to
those
appointed.
This
task
fell
to
John
Marshall,
who,
even
though
recently
appointed
Chief
Justice
of
the
United
States,
continued
as
the
acting
Secretary
of
State
at
President
Adams'
personal
request.
While
a
majority
of
the
commissions
were
delivered,
some
of
them
--
including
Marbury's
--
could
not
be
delivered
before
Adams'
term
as
president
expired.
Marshall
assumed
that
the
new
Secretary
of
State
--
James
Madison
--
would
see
they
were
delivered,
since
"they
had
been
properly
submitted
and
approved,
and
were,
therefore,
legally
valid
appointments."
On
March
4,
1801,
Thomas
Jefferson
was
sworn
in
as
President,
and
he
ordered
Levi
Lincoln,
who
was
the
new
administration's
acting
Secretary
of
State
until
Madison's
arrival
in
Washington,
not
to
deliver
the
remaining
appointments.
Without
the
commissions,
the
appointees
could
not
assume
the
offices
and
duties
to
which
they
had
been
appointed.
Marbury
filed
in
the
Supreme
Court,
seeking
a
writ
of
mandamus
to
compel
the
Secretary
of
State
to
deliver
his
commission.
The
principle
was
that
because
the
delivery
of
the
commission
is
a
"ministerial
act"
--
something
that
requires
no
discretion
or
exercise
of
judgment
--
a
court
could
issue
an
order
to
do
what
the
law
required
the
Secretary
of
State
to
do.
So
far,
sounds
like
it
is
relevant
to
the
Burris
situation.
But
when
the
case
was
decided
by
the
Supreme
Court,
the
Court
(now
led
by
the
same
John
Marshall
who
had
been
trying
to
get
the
commissions
delivered)
ducked
the
issue
on
which
Burris
would
want
to
use
Marbury
v.
Madison.
The
Court
held
that
the
Judiciary
Act
of
1789,
which
gave
the
Court
jurisdiction
to
hear
a
petition
for
writ
of
mandamus,
conflicted
with
Article
III,
Section
2
of
the
Constitution,
which
specified
when
the
Court
had
jurisdiction
but
did
not
mention
writs
of
mandamus.
Therefore,
the
Court
held,
that
part
of
the
statute
was
unconstitutional,
and
the
Court
did
not
have
the
power
to
issue
a
writ
of
mandamus.
Marbury
never
received
his
commission,
and
he
never
served
as
a
justice
of
the
peace.
So
the
principle
for
which
Marbury
v.
Madison
is
remembered
--
the
idea
that
a
court
has
the
power
to
declare
a
law
unconstitutional
--
has
nothing
to
do
with
Burris's
situation.
So
why
do
the
Burris
lawyers
cite
Marbury
v.Madison?
Damned
if
I
know.
· 25