Marbury v. Madison 1 Cranch 137 (1803)
MARBURY v. MADISON 1 Cranch 137 (1803)
Marbury has transcended its origins in the party battles between Federalists and Republicans, achieving mythic status as the foremost precedent for judicial review. For the first time the Court held unconstitutional an act of Congress, establishing, if only for posterity, the doctrine that the Supreme Court has the final word among the coordinate branches of the national government in determining what is law under the Constitution. By 1803 no one doubted that an unconstitutional act of government was null and void, but who was to judge? What Marbury settled, doctrinally if not in reality, was the Court's ultimate authority over Congress and the President. Actually, the historic reputation of the case is all out of proportion to the merits of Chief Justice john marshalls unanimous opinion for the Court. On the issue of judicial review, which made the case live, he said nothing new, and his claim for the power of the Court occasioned little contemporary comment. The significance of the case in its time derived from its political context and from the fact that the Court appeared successfully to interfere with the executive branch. Marshall's most remarkable accomplishment, in retrospect, was his massing of the Court behind a poorly reasoned opinion that section 13 of the judiciary act of 1789 was unconstitutional. Though the Court's legal craftsmanship was not evident, its judicial politics—egregious partisanship and calculated expediency—was exceptionally adroit, leaving no target for Republican retaliation beyond frustrated rhetoric.
Republican hostility to the United States courts, which were Federalist to the last man as well as Federalist in doctrine and interests, had mounted increasingly and passed the threshold of tolerance when the Justices on circuit enforced the Sedition Act. (See alien and sedition acts.) Then the lame-duck Federalist administration passed the judiciary act of 1801 and, a week before thomas jefferson's inauguration, passed the companion act for the appointment of forty-two justices of the peace for the district of columbia, prompting the new President to believe that "the Federalists have retired into the Judiciary as a stronghold … and from that battery all the works of republicanism are to be beaten down and erased." The new Circuit Court for the District of Columbia sought in vain to obtain the conviction of the editor of the administration's organ in the capital for the common law crime of seditious libel. The temperate response of the new administration was remarkable. Instead of increasing the size of the courts, especially the Supreme Court, and packing them with Republican appointees, the administration simply repealed the Judiciary Act of 1801. (See judiciary acts of 1802.) On taking office Jefferson also ordered that the commissions for the forty-two justices of the peace for the district be withheld, though he reappointed twenty-five, all political enemies originally appointed by President john adams.
Marbury v. Madison arose from the refusal of the administration to deliver the commissions of four of these appointees, including one William Marbury. The Senate had confirmed the appointments and Adams had signed their commissions, which Marshall, the outgoing secretary of state, had affixed with the great seal of the United States. But in the rush of the "midnight appointments" on the evening of March 3, the last day of the outgoing administration, Marshall had neglected to deliver the commissions. Marbury and three others sought from the Supreme Court, in a case of original jurisdiction, a writ of mandamus compelling james madison, the new secretary of state, to issue their commissions. In December 1801 the Court issued an order commanding Madison to show cause why the writ should not be issued.
A congressman reflected the Republican viewpoint when saying that the show-cause order was "a bold stroke against the Executive," and john breckinridge, the majority leader of the Senate, thought the order "the most daring attack which the annals of Federalism have yet exhibited." When the debate began on the repeal bill, Federalists defended the show-cause order, the independence of the judiciary, and the duty of the Supreme Court to hold void any unconstitutional acts of Congress. A Republican paper declared that the "mandamus business" had first appeared to be only a contest between the judiciary and the executive but now seemed a political act by the Court to deter repeal of the 1801 legislation. In retaliation the Republicans passed the repealer and altered the terms of the Court so that it would lose its June 1802 session and not again meet until February 1803, fourteen months after the show-cause order. The Republicans hoped, as proved to be the case, that the Justices would comply with the repealer and return to circuit duty, thereby averting a showdown and a constitutional crisis, which the administration preferred to avoid.
By the time the Court met in February 1803 to hear arguments in Marbury, which had become a political sensation, talk of impeachment was in the air. A few days before the Court's term, Federalists in Congress moved that the Senate should produce for Marbury's benefit records of his confirmation, provoking Senator James Jackson to declare that the Senate would not interfere in the case and become "a party to an accusation which may end in an impeachment, of which the Senate were the constitutional Judges." By no coincidence, a week before the Court met, Jefferson instructed the House to impeach a U.S. District Court judge in New Hampshire, and already Federalists knew of the plan to impeach Justice samuel chase. Jefferson's desire to replace John Marshall with spencer roane was also public knowledge. Right before Marshall delivered the Court's opinion in Marbury, the Washington correspondent of a Republican paper wrote: "The attempt of the Supreme Court … by a mandamus, to control the Executive functions, is a new experiment. It seems to be no less than a commencement of war.… The Court must be defeated and retreat from the attack; or march on, till they incur an impeachment and removal from office."
Marshall and his Court appeared to confront unattractive alternatives. To have issued the writ, which was the expected judgment, would have been like the papal bull against the moon; Madison would have defied it, exposing the Court's impotence, and the Republicans might have a pretext for retaliation based on the Court's breach of the principle of separation of powers. To have withheld the writ would have violated the Federalist principle that the Republican administration was accountable under the law. alexander hamilton's newspaper reported the Court's opinion in a story headed "Constitution Violated by President," informing its readers that the new President by his first act had trampled on the charter of the peoples' liberties by unprincipled, even criminal, conduct against personal rights. Yet the Court did not issue the writ; the victorious party was Madison. But Marshall exhibited him and the President to the nation as if they were arbitrary Stuart tyrants, and then, affecting judicial humility, Marshall in obedience to the Constitution found that the Court could not obey an act of Congress that sought to aggrandize judicial powers in cases of original jurisdiction, contrary to Article III of the Constitution.
The Court was treading warily. The statute in question was not a Republican measure, not, for example, the repealer of the Judiciary Act of 1801. Indeed, shortly after Marbury, the Court sustained the repealer in stuart v. laird (1803) against arguments that it was unconstitutional. In that case the Court ruled that the practice of the Justices in sitting as circuit judges derived from the Judiciary Act of 1789, and therefore derived "from a contemporary interpretation of the most forcible nature," as well as from customary acquiescence. Ironically, another provision of the same statute, section 13, was at issue in Marbury, not that the bench and bar realized it until Marshall delivered his opinion. The offending section, passed by a Federalist Congress after being drafted by oliver ells-worth, one of the Constitution's Framers and Marshall's predecessor, had been the subject of previous litigation before the Court without anyone having thought it was unconstitutional. Section 13 simply authorized the Court to issue writs of mandamus "in cases warranted by the principles and usages of law," and that clause appeared in the context of a reference to the Court's appellate jurisdiction.
Marshall's entire argument hinged on the point that section 13 unconstitutionally extended the Court's original jurisdiction beyond the two categories of cases, specified in Article III, in which the Court was to have such jurisdiction. But for those two categories of cases, involving foreign diplomats or a state as a litigant, the Court has appellate jurisdiction. In quoting Article III, Marshall omitted the clause that directly follows as part of the same sentence: the Court has appellate jurisdiction "with such exceptions, and under such regulations as the Congress shall make." That might mean that Congress can detract from the Court's appellate jurisdiction or add to its original jurisdiction. The specification of two categories of cases in which the Court has original jurisdiction was surely intended as an irreducible minimum, but Marshall read it, by the narrowest construction, to mean a negation of congressional powers.
In any event, section 13 did not add to the Court's original jurisdiction. In effect it authorized the Court to issue writs of mandamus in the two categories of cases of original jurisdiction and in all appellate cases. The authority to issue such writs did not extend or add to the Court's jurisdiction; the writ of mandamus is merely a remedial device by which courts implement their existing jurisdiction. Marshall misinterpreted the statute and Article III, as well as the nature of the writ, in order to find that the statute conflicted with Article III. Had the Court employed the reasoning of Stuart v. Laird or the rule that the Court should hold a statute void only in a clear case, giving every presumption of validity in doubtful cases, Marshall could not have reached his conclusion that section 13 was unconstitutional. That conclusion allowed him to decide that the Court was powerless to issue the writ because Marbury had sued for it in a case of original jurisdiction.
Marshall could have said, simply, this is a case of original jurisdiction but it does not fall within either of the two categories of original jurisdiction specified in Article III; therefore we cannot decide: writ denied, case dismissed. Section 13 need never have entered the opinion, although, alternatively, Marshall could have declared: section 13 authorizes this Court to issue such writs only in cases warranted by the principles and usages of law; we have no jurisdiction here because we are not hearing the case in our appellate capacity and it is not one of the two categories in which we possess original jurisdiction: writ denied, case dismissed. Even if Marshall had to find that the statute augmented the Court's original jurisdiction, the ambiguity of the clause in Article III, which he neglected to quote, justified sustaining the statute.
Holding section 13 unconstitutional enabled Marshall to refuse an extension of the Court's powers and award the judgment to Madison, thus denying the administration a pretext for vengeance. Marshall also used the case to answer Republican arguments that the Court did not and should not have the power to declare an act of Congress unconstitutional, though he carefully chose an inoffensive section of a Federalist statute that pertained merely to writs of mandamus. That he gave his doctrine of judicial review the support of only abstract logic, without reference to history or precedents, was characteristic, as was the fact that his doctrine swept way beyond the statute that provoked it.
If Marshall had merely wanted a safe platform from which to espouse and exercise judicial review, he would have begun his opinion with the problems that section 13 posed for the Court; but he reached the question of constitutionality and of judicial review at the tail-end of his opinion. Although he concluded that the Court had to discharge the show-cause order, because it lacked jurisdiction, he first and most irregularly passed judgment on the merits of the case. Everything said on the merits was obiter dicta and should not have been said at all, given the judgment. Most of the opinion dealt with Marbury's unquestionable right to his commission and the correctness of the remedy he had sought by way of a writ of mandamus. In his elaborate discourse on those matters, Marshall assailed the President and his cabinet officer for their lawlessness. Before telling Marbury that he had initiated his case in the wrong court, Marshall engaged in what edward s. corwin called "a deliberate partisan coup. " Then Marshall followed with a "judicial coup d'etat, " in the words of albert j. beveridge, on the constitutional issue that neither party had argued.
The partisan coup by which Marshall denounced the executive branch, not the grand declaration of the doctrine of judicial review for which the case is remembered, was the focus of contemporary excitement. Only the passages on judicial review survive. Cases on the removal power of the President, especially concerning inferior appointees, cast doubt on the validity of the dicta by which Marshall lectured the executive branch on its responsibilities under the law. Moreover, by statute and by judicial practice the Supreme Court exercises the authority to issue writs of mandamus in all appellate cases and in the two categories of cases of original jurisdiction. Over the passage of time Marbury came to stand for the monumental principle, so distinctive and dominant a feature of our constitutional system, that the Court may bind the coordinate branches of the national government to its rulings on what is the supreme law of the land. That principle stands out from Marbury like the grin on the Cheshire cat; all else, which preoccupied national attention in 1803, disappeared in our constitutional law. So too might have disappeared national judicial review if the impeachment of Chase had succeeded.
Marshall himself was prepared to submit to review of Supreme Court opinions by Congress. He was so shaken by the impeachment of Chase and by the thought that he himself might be the next victim in the event of Chase's conviction, that he wrote to Chase on January 23, 1804: "I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than a removal of the judge who has rendered them unknowing of his fault." The acquittal of Chase meant that the Court could remain independent, that Marshall had no need to announce publicly his desperate plan for congressional review of the Court, and that Marburyremained as a precedent. Considering that the Court did not again hold unconstitutional an act of Congress until 1857, when it decideddred scott v. sandford, sixty-eight years would have passed since 1789 without such a holding, and but for Marbury, after so long a period of congressional omnipotence, national judicial review might never have been established.
Leonard W. Levy
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