MARBURY V. MADISON

On Friday, 27 February 1801, John Adams signed the bill for the governance of the District of Columbia. He had but five days left in his administration to appoint a series of judicial officers, including justices of the peace for five-year terms for the District's two counties. Over the weekend, the nominations for justices of the peace were completed and on Monday, 2 March, the president dispatched to the U.S. Senate nominations for twenty-three justices of the peace for Washington County and nineteen for Alexandria County. The Senate approved the nominations the following day, the last in Adams's administration. That night, after the president had signed the commissions and returned them to the Department of State, the chief justice of the Supreme Court, John Marshall, affixed the seal of the United States to the commissions and left it to his chief clerk to deliver and have them recorded in the department's record book of appointments.

The next day, while Thomas Jefferson was being inaugurated as the country's third president, James Marshall, brother of John and circuit court judge of the District of Columbia, delivered some of the commissions to justices of the peace in Alexandria County. But William Marbury's commission for Washington County was not among them. Other appointees, too, did not receive their commissions. The following day, Thomas Jefferson visited the State Department, almost certainly having inside information of what had happened, and "discovered" the undelivered commissions. He ordered them to be withheld and later issued his own appointments.

Later in the year, Marbury and some others appointees brought suit, asking the Supreme Court to issue a writ of mandamus to Secretary of State James Madison to compel the delivery of the commissions. Marbury brought his suit directly to the Supreme Court under section 13 of the Judiciary Act of 1789, which gave the Supreme Court "original" jurisdiction in cases where a writ of mandamus (an order to perform a function) was requested against an executive official. The suit was part of a Federalist Party counterattack against the Jefferson administration. When the case finally came to trial before the Court in early 1803, John Marshall as chief justice, refused to be drawn into the political contest on the side of his Federalist Party compatriots. Instead, in a unanimous opinion, Marshall established the moral basis for the judicial review of unconstitutional legislation and removed the Court from partisan politics.

Marshall held that, as a matter of law, Marbury was entitled to his commission because his appointment as justice of the peace had been completed when President Adams signed the commission; delivery of the commission was not necessary for Marbury's assumption of office. The commission was merely evidence that Marbury had been appointed, as would a record of his appointment in the record book of the Secretary of State. But because he was validly appointed, Marbury was entitled to the evidence of his appointment. It followed logically from Marshall's opinion that President Jefferson could appoint new justices of the peace (there was no limit to the number under the law) but could not deny the position to those already appointed.

Marshall took pains to point out that he was acting solely as a judge in a court of law, and that the Supreme Court had no business interfering in the president's political or discretionary powers. But since the appointment had been completed, the secretary of state was legally bound to deliver the evidence of that appointment. Even at the trial, Marshall went out of his way not to embarrass Jefferson. He allowed Attorney General Levi Lincoln to refuse to answer the question, "What had been done with the Commission?" The answer, as everyone knew, would have been, "The president ordered me to destroy it," an act that would have been illegal. Marshall in effect was telling the president that the Supreme Court would no longer be involved in partisan politics (as it had been), and by implication was telling the president not to interfere with the judiciary. For his part, Jefferson did not accept the offer and continued, through intermediaries, to attack the Federalist judiciary for years to come.

Yet Marshall did not issue the writ of mandamus to Madison. The chief justice found that the Constitution had already defined the extent of the Supreme Court's original jurisdiction and that Congress could not expand it. The Court could only hear such cases on appeal. Marbury had brought his suit to the wrong court and Marshall dismissed it.

In this first instance of declaring part of an act of Congress unconstitutional, Chief Justice Marshall was careful to avoid saying that the Court could overrule Congress. Rather, Marshall pointed to his moral obligation under his oath of office as justice to enforce only that which was truly law. The Constitution was the superior law to this particular act of Congress, and Marshall, in order to fulfill his office under the Constitution, could not enforce what was not, in fact, valid law. He thus grounded the separation of powers in the different functions each branch performs and the moral obligation of members of each branch to perform their assigned functions and no others.

See alsoAdams, John; Judicial Review; Marshall, John; Supreme Court; Supreme Court Justices .

bibliography

Clinton, Robert Lowry. Marbury v. Madison and Judicial Review. Lawrence: University Press of Kansas, 1989.

Forte, David F. "Marbury's Travail: Federalist Politics and William Marbury's Appointment as Justice of the Peace." Catholic University Law Review 45 (1996): 349–402.

Nelson, William E. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence: University Press of Kansas, 2000.

David F. Forte