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Articles
for
September 1997
Chapter
11 -
Opinion of the Court
Chapter
12 -
The Gathering Storm
Chapter
13 -
Marbury v. Madison
© 1996-2003
DuPage County
Bar Association
All Rights Reserved.
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John Marshall - Definer of a Nation
Chapter 13 - Marbury v. Madison
"It is emphatically the province and
duty of the judicial department to say what the law is."
United States Supreme Court 1803
In the autumn of 1802, Marshall and his
fellow justices resumed their duties on circuit. Rather than precipitate a
crisis with the Republican majority in Congress over the new Judiciary Act,
the chief justice chose to respect its provisions, hoping thereby to steer
the Court away from conflict. It was a decision that reflected Marshall’s
basic political moderation and conformed to his strongly held view that the
judiciary should remain nonpartisan—a view that, in 1802, was shared
neither by the irreconcilable in his own party nor by the radical wing of
the Republicans. Above all, it was consistent with his understanding of the
Constitution. Each branch of government was entrusted with specific
responsibilities, and Congress was given explicit authority to organize the
lower courts. Marshall might disagree with the manner in which congressional
discretion had been exercised, but he was not about to challenge the plenary
nature of that discretion.
As chief justice, Marshall was assigned by
the Judiciary Act of 1802 to the fifth circuit, comprising the districts of
Virginia and North Carolina.1 This assignment was fortunate given that
Bushrod Washington was also from Virginia and Alfred Moore from North
Carolina. Had there been any legislative hostility toward Marshall when the
act was passed, he could easily have been given a more distant posting. As
it was, the fifth circuit was the most convenient he could possibly have
had, for it meant he could discharge the bulk of his duties without leaving
home. The Virginia circuit met in Richmond and was the nation’s busiest.
The North Carolina circuit. which convened in Raleigh, was far less active,
and required Marshall’s presence for less than a week at a time.2
Despite Marshall’s determination to shield
the Court from partisan politics, the High Federalists were unwilling to let
matters rest. Convinced that the repeal of the Judiciary Act of 1801 was the
opening salvo of a Republican campaign to dismantle the entire federal
judiciary and perhaps even the Constitution itself, the party’s hard core
went on the offensive.3 Their initial gambit was to have the repeal measure
quickly declared unconstitutional, but this was frustrated by the new
Judiciary Act, which delayed the next session of the Supreme Court until
February 1803. Their next maneuver was an attempt to persuade the justices
to refuse to ride circuit. Such a refusal would have vitiated the Republican
substitute legislation and would have created a constitutional crisis from
which the High Federalists hoped to benefit. That strategy came to naught as
well when Marshall and his colleagues refused to cooperate. The
irreconcilable were left with four options, all of which they began to
pursue vigorously.
The first element of the High Federalist
assault involved a public campaign calling upon Marshall and his associates
to declare the repeal act unconstitutional when the Court reconvened.4 Next,
the High Federalists planned to have the displaced circuit judges, led by
Oliver Wolcott, petition Congress to be reinstated.5 Third, they made
preparations to introduce a number of test cases into the circuit courts,
hoping eventually to carry them forward to the Supreme Court. Finally, the
pending litigation of William Marbury and his associates was seen as another
opportunity to whip up public support. The inevitable result of this
four-pronged attack was to exacerbate an already delicate political
situation and to widen the division between the two parties—exactly what
Marshall and Jefferson had hoped to avoid.6
The issue between the High Federalists and
the justices of the Marshall Court was joined first on September 18, 1802,
when Bushrod Washington opened circuit court in Hartford, Connecticut. Roger
Griswold, a charter member of the High Federalist braintrust, used the
occasion to challenge the authority of the circuit court to hear two cases
then pending, insisting that the judges appointed by Adams still held office
and that their courts were the appropriate venue. Washington immediately
dismissed Griswold’s motion and ordered that the docket be called.7
A similar incident occurred shortly afterward
in Boston when Justice Cushing called the first circuit to order. Theophilus
Parsons, another High Federalist chieftain (and subsequently chief judge of
the supreme judicial court of Massachusetts), questioned the
constitutionality of the court, at which point Cushing adjourned proceedings
until the next day. During the intervening twenty-four hours the judges
evidently made it plain how they intended to rule, because when the court
reconvened, Parsons, "very much mortified," dropped his plea and
the court resumed its business.8 In New Jersey, another test case was
mounted when one of the deposed midnight judges brought suit before Justice
Paterson contesting the constitutionality of the repealing act of 1802.
That, too, was summarily dismissed.9
The principal High Federalist assault was
reserved for the fifth circuit in Richmond, where Marshall was presiding.
Once again, it was the chief justice’s old friend Charles Lee who led the
attack. The issue involved an earlier judgment won by a Maryland resident,
John Laird, against Hugh Stuart, a citizen of Virginia, in one of the
circuit courts that had been abolished by the Republican Congress. The
judgment of that court was now before Marshall for execution. Lee
immediately challenged Marshall’s authority to hear the matter. He
repeated the arguments made by Griswold and Parsons that the Repeal Act of
1802 was unconstitutional, and he questioned Congress’s authority to
compel the justices of the Supreme Court to ride circuit. "If it be
said that the practice from the year 1789 to 1801 is against us, we answer
that the practice was wrong, that it crept in unawares, without
consideration and without opposition."10 Marshall dismissed both of
Lee’s arguments and ordered the judgment in favor of Laird to be
executed.11 Lee thereupon appealed Marshall’s decision to the Supreme
Court (Stuart v. Laird ), thus setting the stage for the final High
Federalist challenge to Congress’s actions in 1802.
In going forward with their appeal, the High
Federalists once again betrayed their sense of unreality. Bushrod
Washington, Cushing, Paterson, and Marshall had all ruled against them on
circuit, and there was little likelihood that the justices would reverse
themselves come February. But the party’s irreconcilable were determined
to press on, confident that their position was correct. That moral certitude
unsettled the radical Republicans—who should have known better—and the
political rhetoric escalated. The Supreme Court unwillingly now became the
focus of the struggle over the judiciary that had commenced two years
earlier on the floor of Congress.
Marshall was not affected by the High
Federalist offensive. His dark mood of autumn had passed, and he had emerged
from it more resolved than ever to extricate the Court from the morass of
partisan politics. Before he could confront that challenge, however, there
were circuit court duties to complete. Shortly after Christmas, Marshall set
out for Raleigh and his first session of court in North Carolina. The
distance from Richmond to Raleigh over the post road was 165 miles, and the
weather being fair, Marshall made the trip in three days. Like Richmond,
which had inherited the mantle of government from Williamsburg, Raleigh had
recently become the capital of North Carolina. The state government had
moved to Raleigh from coastal New Bern in 1792, and the new capital had all
the trappings of a piedmont frontier town as it struggled to accommodate the
various legislators and state officials who descended upon it. Jonathan
Mason, a former United States senator from Massachusetts, described the town
as "a miserable place, nothing but a few wooden buildings and a brick
Court House."12
In 1803 Raleigh’s population numbered fewer
than 1,000. Marshall found lodging in the boardinghouse of Henry H.
Cooke—a rickety frame structure about a quarter of a mile from the
courthouse. The rooms were spartan, and Marshall had to gather his own wood
and make his own fires. But for the next thirty-two years he stayed with
Cooke whenever he held court in Raleigh.13 "Everything here [is] as
pleasant as I could expect," he wrote to Polly on January 2, and it is
obvious from his letter that his buoyancy had returned. You will laugh at my
vexation when you hear the various calamities that have befallen me. In the
first place when I came to review my funds, I had the mortification to
discover that I had lost 15 silver dollars out of my waist coat pocket. They
had worn through the various mendings the pocket had sustained and sought
their liberty in the sands of Carolina. I determined not to vex myself with
what could not be remedied and ordered Peter to take out my clothes that I
might dress for court when to my astonishment and grief after fumbling
several minutes in the portmanteau, staring at vacancy, and sweating most
profusely he turned to me with the doleful tidings that I had no pair of
breeches.
You may be sure this piece of intelligence
was not very graciously received. However, after a little scolding I
determined to make the best of my situation and immediately set out to get a
pair made. I thought I should be a sans culotte only one day and that for
the residue of the term [December 30, 1802-January 5, 1803] I might be well
enough dressed for the appearance of the first day to be forgotten. But,
"the greatest of evils, I found, was followed by still greater!"
Not a tailor in town could be prevailed on to work for me. They were all so
busy that it was impossible to attend to my wants however pressing they
might be, and I have the extreme mortification to pass the whole term
without that important article of dress I have mentioned.14
Because of the repeal of the Judiciary Act of
1801, the circuit court had not met for almost a year, and Marshall found a
full docket awaiting him.15 One case, Ogden v. Blackledge, which
eventually came before the Supreme Court,16 permitted him to restate his
views concerning the separation of powers and the necessity of preventing
legislative encroachment upon the courts. Marshall’s comment was
gratuitous, but his decision upholding the claims of British creditors
against citizens of North Carolina was subsequently sustained by the high
court.17
On the bench in Raleigh, just as in Richmond,
Marshall was careful not to betray any sign of political partisanship—a
determination that, with the continuing exception of Chase, his colleagues
now shared. The Raleigh Register reported that his charge to the grand jury
in Ogden v. Blackedge was "concise and appropriate, fully
explaining their duty, without the least political intermixture.’’18 The
Minerva, another North Carolina paper, called it "elegant and
learned." 19 Consistent with the cautious judicial posture Marshall had
adopted, he declined to give copies of his jury charge to the press.
According to the Minerva, "the Chief Justice [said] that he had laid it
down as a rule from which he did not intend to depart, not to allow his
charges to be published."20
Marshall’s efforts to avoid partisanship
would soon be tested. When Congress reconvened in January 1803, the High
Federalists launched their offensive. The Supreme Court was scheduled to
meet on February 7, with both Marbury v. Madison and Stuart v.
Laird on the docket. On January 27, in accordance with the strategy
previously agreed upon, eleven of the deposed circuit judges presented
personal memorials to the House and Senate requesting Congress to define
their status and urging that the issue of their compensation be referred to
the Court.21 The Federalist press devoted considerable space to the appeal,
although the Aurora perhaps more accurately noted that "The judges . .
. this day brought forth the mouse from the mountain."22
The ensuing debate was viciously partisan. In
the House, the Federalists urged that the constitutionality of the Repeal
Act be referred to the Supreme Court.23 The Republicans responded that the
people, not the courts, were the judges of the constitutionality of acts of
Congress.24 "If the petitioners can bring their case before the Supreme
Court, let them do so," said John Nicholas of Virginia. "If the
Supreme Court shall arrogate this power to themselves, and declare our law
to be unconstitutional, it will then behoove us to act. Our duty is
clear."25 With the threat of legislative reprisal in the air, the House
rejected the judges’ petition, thirty-seven voting in favor, sixty-one
against.26
The debate in the Senate was even more
heated, and the Supreme Court again became the focal point of the
controversy. The Federalist onslaught was led by Gouverneur Morris of New
York, Jonathan Dayton of New Jersey, and James Ross of Pennsylvania. The
Judiciary, said Ross, was "the only body to which we could look"
for protection from laws that were unconstitutional. "The Constitution
is the supreme law: it is the duty of a judge to compare acts of the
Legislature with this great charter, and pronounce whether the special
delegated power [of Congress] has been exceeded or not."27
The Republicans answered that the judges’
petition "was nothing more than an attempt to inflame the public
mind’’28 and deplored the divisive tactics of their opponents.
"Would not peace and union have been better promoted by keeping the
subject out of sight, and not by attempting. . . to irritate party
animosities?" asked Wilson Cary Nicholas of Virginia.29 None of the
Republican senators questioned the Supreme Court’s authority to declare an
act of Congress unconstitutional. But as John Breckinridge of Kentucky
noted, since "the courts can decide that question without our
interference," why should the Senate become involved?30 Like the House,
the Senate voted down the judges’ petition, although the vote was much
closer, 13-15.31
The High Federalists continued to press
forward. On January 28, the day after the House rejected the memorial of the
former judges, Senator John Howard of Maryland introduced a request from
William Marbury, Robert Hooe, and Dennis Ramsay for a certified copy of the
Senate’s executive journal from March 1801, attesting their confirmation
as justices of the peace.32 Howard ingenuously observed that "the
request was so reasonable that he concluded it would pass without
objection."33
In raising Marbury’s request before the
Senate, the High Federalists’ purpose was twofold. Secretary of State
Madison had not responded to the Supreme Court’s show cause order, nor had
he provided the claimants with the documentation they sought pertaining to
their original appointments. As a result, the trio of litigants could offer
no tangible proof that their commissions had been withheld. A copy of the
Senate’s journal would at least establish that they had been duly
appointed.34 A more important consideration, however, was that by raising
the issue on the eve of the Supreme Court’s February term, the High
Federalists were putting pressure on the justices. The party press reported
the debate extensively, and, for the first time since December 1801, public
awareness rekindled. If Marshall and his colleagues had hoped to dispose of
Marbury’s request quietly, the party’s militants were serving notice
that this would not be possible.
The Senate Republicans recognized immediately
that Marbury and his colleagues were pawns in a game of constitutional
confrontation initiated by the High Federalists. John Breckinridge attacked
the request for the Senate journal as an unwarranted attempt to assail the
president. His action converted the issue into a showdown between Jefferson
and the Court—raising the stakes even higher. "The suit is now
pending on a mandamus to the secretary of state. The Senate ought not to aid
the Judiciary in their invasion of the rights of the Executive."35
Other Republicans picked up the theme.
General James Jackson of Georgia, who, with Breckinridge, was one of the
Senate’s most radical Republicans, said he would "never lend his aid
to set the Judiciary above the Executive."36 Robert Wright of Maryland
called Marbury’s request "an audacious attempt to pry into Executive
secrets, by a tribunal which had no authority to do any such thing; and to
enable the Supreme Court to assume an unheard of and unfounded power, if not
despotism."37 DeWitt Clinton of New York noted that "a great
Constitutional question is now agitated in [the Supreme] Court, involving
the right to control the Executive."38 The Republicans eventually
defeated Marbury’s request, again in a 13-15 vote,39 but the High
Federalists had succeeded in making the authority of the Supreme Court the
central issue in their campaign. Marbury v. Madison, which had begun
as a routine exercise in judicial procedure fourteen months earlier, was now
center stage. Marshall’s effort to remove the judiciary from partisanship
had been thwarted by the irreconcilable in his own party. The Aurora was
right on target when it referred to William Marbury as "the person used
by the tories to blow up this bubble."40
The Supreme Court was now the focus of the
nation’s partisanship. Despite the long cooling off period since the Court
last met in December 1801, and notwithstanding the justices’ evident
reluctance to become involved, Committee Room 2 had become the venue where
the animosity between the High Federalists and their radical opponents would
be played out. In Marbury the Court was being asked to issue a writ of
command to Jefferson’s secretary of state; in Stuart v. Laird, it
was being challenged to overturn the Republican-passed Judiciary Act of
1802. Both cases threatened to produce a constitutional crisis, which
Marshall recognized the Court could not win. Even more seriously, each
threatened to upend the nonpartisan stance the justices had adopted and,
with it, the Supreme Court’s legitimacy as the nation’s highest
tribunal.
First to be argued was Marbury v. Madison,41
which, unlike virtually all cases to come before the Supreme Court, was one
in which the justices sat as a trial court. Marbury’s request for a writ
of mandamus was not an appeal from a lower court holding but an original
action brought before the Supreme Court under section 13 of the old
Judiciary Act of 1789.42 Marbury and his associates had to demonstrate why
the writ should be issued, and on February 10, Charles Lee opened his
argument on their behalf.43 Madison, who still had not responded to the
Court’s order to show cause, continued to ignore the matter, which gave
the proceedings an especially eerie quality. Not only were the justices
sitting in judgment in an original action, but one of the parties to the
case was not even represented—a bold challenge to the Court’s authority.
Because the Senate had refused to provide an
extract of its executive journal, Lee was confronted at the outset with the
necessity of proving that his clients had been nominated and confirmed as
justices of the peace. The one person who could provide direct evidence on
that point was Marshall himself who, as secretary of state, had affixed the
seals to their commissions. In fact, it was actually Marshall who had been
remiss in seeing that the documents were sent out.44 Lee chose not to call
the chief justice and initially attempted to build his case on the testimony
of the State Department’s chief clerk, Jacob Wagner, and his assistant,
Daniel Brent. Both proved to be unwilling witnesses and claimed executive
privilege. Despite their reluctance, Marshall ordered them to be sworn. They
could object to any specific question they might be asked, he said, but the
Court would decide whether they were required to answer.45 The collision of
the Court and the executive branch, which both Marshall and Jefferson had
attempted to avoid, appeared to be at hand.
Wagner and Brent chose not to press the issue
of executive privilege. Under oath, Wagner testified that he was working as
Jefferson’s personal secretary at the time of the transition and had no
direct knowledge of the justice of the peace commissions. He said he had
heard that the commissions for Marbury and Robert Hooe had been signed by
President Adams, but that by some accident the one for Dennis Ramsay had not
been.46 When Lee asked, "who gave you that information?" Wagner
declined to answer and Marshall upheld his refusal, saying that the question
was not pertinent. Brent, also under oath, said he had seen the commissions
but did not think they had been sent out. He did not know what had happened
to them.47
Lee called as his next witness Attorney
General Levi Lincoln, who had replaced Marshall as interim secretary of
state the day after Jefferson’s inauguration. Lincoln presumably had been
aware of Jefferson’s order not to deliver the commissions, but as acting
secretary of state, and therefore the president’s principal deputy, his
claim to executive privilege was compelling. Lincoln was also the nation’s
attorney general, however, and an of officer of the Court. His position was
delicate, and he asked Marshall whether he was required to testify. On the
one hand, said Lincoln, he respected the jurisdiction of the Court; on the
other, he felt himself bound to maintain the rights and privileges of the
executive. If the Court decided that his testimony was essential, he asked
that Lee’s questions be put in writing so that he might have time to
consider them.48
Marshall was sympathetic to Lincoln’s
plight. He granted the attorney general’s request and instructed Lee to
put his queries in writing. Lee wrote out the four questions he wished to
ask, and the chief justice, after consulting his colleagues, told Lincoln
that the Court felt he should answer the questions, but that he could take
whatever time he needed to consider them. Marshall said that Lincoln need
not disclose anything that was confidential and that he certainly need not
incriminate himself.49 It was apparent from the interchange between Marshall
and Lincoln that each was doing his utmost to prevent the issue from
escalating into a full-blown confrontation between the executive branch and
the Court. Lincoln deferred to the Court’s authority; Marshall made it
plain that the Court would respect executive privilege.
At that point Lincoln requested that he be
given until the following morning to reply, noting that he was due shortly
at a committee hearing dealing with claims against the United States
submitted by the state of Georgia.50 Marshall agreed, and the Court
adjourned. The first day’s testimony was complete. It had been a trying
experience. The Supreme Court was ill-suited to the role of a trial court,
and taking direct testimony was time-consuming. It was evident to those in
attendance that the justices were uncomfortable, and Madison’s failure to
respond continued to cast a shadow over the proceedings.
When the Court reconvened on Friday, February
11, Lincoln roof; the improvised witness stand. He noted his objection to
Lee’s first question. stating that he could not say what had happened to
the commissions because he did not know whether Secretary Madison had ever
had possession of them. Marshall upheld Lincoln’s objection and ruled that
the question was immaterial.51 Lincoln thereupon responded to Lee’s three
remaining interrogatories. He said that he had seen the commissions and that
they had been signed by President Adams and sealed with the Great Seal of
the United States. But he told the Court that he did not recollect whether
any of them had been made out to Marbury, Hooe, or Ramsay. He said that he
also did not know whether any of the commissions had been sent out, but did
not believe that any had been,52 At that point Lincoln was excused. With
considerable tact and a great deal of understanding, the chief justice and
the attorney general had avoided the collision the High Federalists were
trying to engineer. In requiring that Lee put his questions in writing, the
Court had preempted the possibility of a dramatic interrogation of Lincoln
that would undoubtedly have fanned the flames of partisanship.
The fact is, the Federalists had had little
success thus far in making their case. As his final piece of evidence, Lee
submitted an affidavit made out by James Marshall, the chief justice’s
brother, attesting to the fact that he had seen the commissions in the
office of the secretary of state, that he had at tempted without success to
deliver a number of them in Alexandria, and that he had returned them to the
State Department. Lee asserted that the existence of the commissions was
thus proved, and moved on to his closing argument.53
When Lee concluded, Marshall asked Lincoln
whether he wished to respond. Lincoln said he had received no instructions
from Secretary Madison and therefore would remain silent. According to press
reports, Marshall was uncomfortable that the traditional adversarial process
had not been followed. Eager to hear argument from the opposing side, he
said that the Court "would attend to the observations of any person who
was disposed to offer his sentiments."54 When no one responded,
Marshall said that the Court would postpone judgment and moved on to other
business.
The Supreme Court was now in a no-win
situation. It had avoided a clash between the Jefferson administration and
its High Federalists opponents in the courtroom, but an even greater
collision was in the of offing. If the Court issued a writ of mandamus, it
was abundantly clear that Madison would ignore it. Since the Court lacked
the means to enforce the writ, the judiciary would be exposed as powerless.
Executive authority would have prevailed simply by standing aside and doing
nothing. Public opinion would back Madison; the Republicans would wax
triumphant; and another check on majority power would have been dissipated.
On the other hand, if the Court did not issue
the writ to which Marbury was entitled, and which was unmistakably provided
for by statute, the judiciary would be deemed a paper tiger. It would be
seen as unwilling to confront the Republican behemoth, and an unworthy
guardian of constitutional principle. For two weeks, Marshall and his
colleagues wrestled with the dilemma. In the interim, Chase was taken ill
and the Court removed its sessions to the living room of nearby Stelle’s
Hotel to accommodate him— Stelle’s Hotel, a three-story brick structure
on the present site of the Library of Congress, had become the justices’
common lodging after Conrad and McMunn’s was destroyed in a fire.55
Some of the pressure that had been building
was lifted when the High Federalists turned their fire on Jefferson over his
reluctance to take action against Spain for its closure of the port of New
Orleans. The crisis on the lower Mississippi had been festering for several
months, and on Monday, February 14, three days after the conclusion of
Lee’s argument in Marbury v. Madison, Senator James Ross of
Pennsylvania introduced legislation instructing the president to use
military force to take possession of New Orleans and calling 50,000 state
militia into national service to assist.56 The resolution was a serious
challenge to the president’s authority to conduct the nation’s foreign
relations. It was also a deliberate effort to scuttle a peaceful settlement.
Debate on the measure consumed the Senate and the administration for the
next two weeks, diverting attention from the Court and the pending decision
on Marbury’s request.
On Thursday, February 24, while the Senate
debate still raged, the justices assembled in the living room of Stelle’s
Hotel to announce their decision. Once again their holding was unanimous,
and once again it was the chief justice who spoke for the Court. Marshall
began slowly, reading the opinion in the same low but persuasive voice that
characterized his years at the bar. He noted that Madison had not shown
cause why the writ of mandamus should not be issued. A less astute, or a
more partisan, judge might have ruled for Marbury by default. Such a
decision would have been defensible under the normal rules of the
adversarial process and would have precipitated the constitutional crisis
the High Federalists longed for. But a constitutional crisis was precisely
what Marshall sought to avoid. Thus, having acknowledged Madison’s
noncompliance, the chief justice let the matter rest. "The peculiar
delicacy of this case," said Marshall, "the novelty of some of its
circumstances, and the real difficulty attending the points which occur in
it, require a complete exposition of the principles on which the opinion to
be given by the Court is founded."57
Marshall turned to the question of whether
Marbury was entitled to his commission as a justice of the peace. By
tackling this question first, the chief justice was throwing a sop to the
High Federalists. He traced the legislation by which the office was created,
examined the appointment process specified by the Constitution, and noted
that the process was complete when the president signed the commissions and
the secretary of state affixed the seal. Delivery of the documents was not
required. Marshall said that since Marbury’s commission had been signed
and sealed, he was duly appointed as a justice of the peace for a term of
five years. That appointment was not revocable but was vested in Marbury’s
legal rights, "which are protected by the laws of this country. To
withhold his commission, therefore, is an act deemed by the Court not
warranted by law, but violative of a vested legal right."
Having established Marbury’s right to the
office, Marshall then asked whether the laws afforded a remedy. "The
very essence of civil liberty," he said, "consists in the right of
every individual to claim the protection of the laws whenever he receives an
injury." Marshall’s voice quickened as he moved along. As an
advocate, he had been renowned for commencing his summations in a halting
and disjointed manner, picking up momentum as he proceeded, and soaring to a
tightly crafted conclusion. To those listening in the living room at
Stelle’s, it seemed inevitable that the Court was building its case to
issue the writ Marbury had requested.
Marshall briefly recited several instances in
which executive departments had been held accountable by the judiciary.58 He
then turned to the nature of presidential authority. Marshall was now on the
familiar ground he had laid out in his speech to the House of
Representatives on the Robbins case. The distinction he had drawn between
political questions and legal issues was about to become the constitutional
law of the United States. The Republicans in the audience pricked up their
ears when Marshall said that the Constitution invested the president
"with certain important political powers, in the exercise of which he
is to use his own discretion, and is accountable only to his country in his
political character, and to his own conscience."
To assist him in his political role, Marshall
said, the president was entitled to appoint certain subordinates who were
responsible exclusively to him. "In such cases, their acts are his
acts; and whatever opinion may be entertained of the manner in which
executive discretion may be used, still there exists, and can exist, no
power to control that discretion. The subjects are political. They respect
the nation, not individual rights, and being entrusted to the executive, the
decision of the executive is conclusive."
Marshall noted that the secretary of state,
in particular, is required to conform to the president’s will. "He is
the mere organ by whom that will is communicated. The acts of such an of
officer, as an of officer, can never be examinable by the courts."
For those in attendance, the direction of the
Court appeared to have changed. As a former secretary of state, Marshall’s
words carried special meaning, and he was now presenting a powerful defense
of executive prerogative. If the partisans of 1803 had reflected for a
moment, they would have realized that that position was perfectly consistent
with the moderate federalism Marshall had always espoused and undoubtedly
provided a common denominator for his colleagues on the Court.
Marshall was not finished. The High
Federalists had initially thought the Court was about to issue the writ of
mandamus. The Republicans now anticipated that it would not. The chief
justice again shifted ground. He said that the secretary of state, in
addition to his political responsibilities, also had certain purely
administrative duties. These were prescribed by law and involved no
discretion. When those duties pertained to the rights of individuals, a
person "who considers himself injured has a right to resort to the laws
of his country for a remedy." Marshall said that Marbury had a legal
title to the office to which he had been appointed and a consequent right to
his commission. Madison’s refusal to deliver it was "a plain
violation of that right," and Marbury was fully entitled to seek
redress in the courts.
The advantage shifted back to the High
Federalists. Marshall had been speaking for over an hour (when complete, the
decision would exceed 11,000 words) and was weaving an intricate pattern
that riveted the attention of those who now crowded into the makeshift
courtroom at Stelle’s. Word had spread quickly that the chief justice was
delivering a momentous decision, and numerous members of the House and
Senate had joined the regular practitioners in attendance. A constitutional
crisis of epic proportions appeared to be in the making, and the audience
hung on every word.
It was nearly noon when Marshall warmed to
his conclusion. The only question remaining, he said, was whether Marbury
"is entitled to the remedy for which he applies." That depended on
two factors: "the nature of the writ applied for, and the powers of
this Court." For the next twenty minutes, Marshall examined the nature
of a writ of mandamus. Once again he balanced Marbury’s right to the writ
with the delicacy of issuing a command to the secretary of state. For the
first time, the chief justice took aim at the Republican critics of the
Court. Is it not amazing, he asked, that "the assertion by an
individual, of his legal claims, in a court of justice . . . should at first
be considered by some, as an attempt to intrude into the cabinet, and to
intermeddle with the prerogatives of the executive? It is scarcely necessary
for the Court to disclaim all pretensions to such a jurisdiction. An
extravagance, so absurd and excessive, could not have been entertained for
one moment."
To reassure the nation at large, Marshall
provided a powerful restatement of the judicial function. "The province
of the Court," he said, "is, solely, to decide the rights of
individuals, not to inquire how the executive, or executive officers,
perform duties in which they have a discretion. Questions, in their nature
political, or which are, by the Constitution and laws, submitted to the
executive, can never be made in this Court."
Marshall said that Marbury’s petition,
"so far from being an intrusion into the secrets of the cabinet,"
merely involved obtaining the copy of a paper to which "the law gives a
right on the payment of ten cents."59 He then held that since no
political discretion was involved, a writ of mandamus compelling Madison to
do what the statute required was the appropriate remedy. "It only
remains to be inquired whether it can issue from this Court."
Lee and Lincoln were now on the edge of their
seats. Marshall had structured his decision to heighten the suspense. It was
one o’clock and the tension palpable as the chief justice recited section
13 of the Judiciary Act of 1789, giving the Supreme Court the power to issue
writs of mandamus. The statutory authority of the Court was clear, said
Marshall, unless the law was unconstitutional.
With the outcome still in doubt, Marshall
commenced the constitutional exposition for which Marbury v. Madison
is famous. The Constitution, he said, vested the judicial power of the
United States "in one Supreme Court, and in such inferior courts as
Congress shall, from time to time, ordain and establish." The Supreme
Court’s appellate jurisdiction was determined by Congress, but its
original jurisdiction—those cases in which it sits as a trial court—was
fixed by the Constitution. Marshall noted that the text of the Constitution
was precise. The Supreme Court’s original jurisdiction was expressly
limited to cases "affecting ambassadors, other public ministers and
consuls, and those in which a state shall be a party." That enumeration
was complete and could not be increased by Congress. As a result, the
authority Congress gave to the Supreme Court to issue writs of mandamus
"appears not to be warranted by the Constitution." Congress had
acted to expand the original jurisdiction of the Court as stipulated by the
Constitution, and that, said Marshall, it could not do.
Could a law that was unconstitutional be
enforced by the courts? According to Marshall, the question was deeply
interesting, "but happily not of an intricacy proportioned to its
interest." The people of the United States had established the
Constitution as the supreme law of the land. It "organizes the
government, and assigns, to different departments, their respective
powers." The powers of Congress were limited. "To what purpose are
powers limited, and to what purpose is that limitation committed to writing,
if these limits may, at any time, be [exceeded] by those intended to be
restrained?" Like a stern schoolmaster lecturing errant pupils,
Marshall observed that "It is a proposition too plain to be contested,
that the Constitution controls any legislative act repugnant to it."
Otherwise, the legislature may alter the Constitution at will. "Between
these alternatives there is no middle ground. The Constitution is either a
superior, paramount law, unchangeable by ordinary means, or it is on a level
with ordinary legislative acts, and like other acts, is alterable when the
legislature shall please to alter it."
Marshall said it was absolutely clear that
all of those who had framed written constitutions—an implicit reference to
the various state constitutions—intended those documents to be supreme. As
a result, "an act of the legislature, repugnant to the Constitution, is
void. This theory is essentially attached to a written constitution, and is
consequently to be considered, by this Court, as one of the fundamental
principles of our society."
Marshall was now defending the perimeter of
judicial authority. In a sentence that has echoed through the years, the
chief justice announced that "It is emphatically the province and duty
of the judicial department to say what the law is." And then, the
critical link in his argument: The Constitution was law. It could be
interpreted by the courts in ordinary litigation. "If two laws conflict
with each other, the courts must decide on the operation of each." If a
law and the Constitution are in conflict, and if both apply to a particular
case, "the Court must determine which of these conflicting rules
governs the case. This is the essence of judicial duty."
At that point, Marshall’s conclusion was
inescapable. If the courts are obliged to interpret the Constitution, and if
the Constitution "is superior to any ordinary act of the
legislature—the Constitution, and not such ordinary act, must govern the
case to which they both apply."
Earlier in the Court’s decision, Marshall
had recognized vast areas of political discretion that were not subject to
judicial scrutiny. Now, in conclusion, he was driving home the point that
the Constitution was a legal document and that, in matters of law, the
decision of the Court was final. It was a principle, he said,
"essential to all written constitutions, that a law repugnant to the
Constitution is void, and that courts, as well as other departments, are
bound by that instrument."
Since Congress had no authority to expand the
original jurisdiction of the Supreme Court by granting it the power to issue
writs of mandamus, the rule to Secretary of State Madison to show cause
"must be discharged." At fifteen minutes before two o’clock on
February 24, 1803, after a decision that had required almost four hours for
Marshall to read, the case of Marbury v. Madison was dismissed.
It was a judicial tour de force. Marshall had
converted a no-win situation into a massive victory. The authority of the
Supreme Court to declare an act of Congress unconstitutional was now the law
of the land. Typically, Marshall’s decision paid heed to the claims raised
on both sides of the case. The High Federalists were awarded the nominal
prize of hearing that Marbury was entitled to his commission, and the
Republicans gained a victory with the dismissal of the rule to show cause.
But the real winner was the Supreme Court and, some might say, the
Constitution itself.
The legal precedent for judicial review, that
unique American doctrine that permits the Supreme Court to declare acts of
Congress and the executive unconstitutional, traces to the holding in Marbury
v. Madison. Marshall did not say that the Supreme Court was the ultimate
arbiter of the Constitution. He did not say that the authority to interpret
the Constitution rested exclusively with the Court, and he certainly did not
endorse grandiose schemes that envisaged the Supreme Court as a board of
review sitting in judgment on each act of Congress to determine its
constitutionality.60 He simply stated that the Constitution was law, and
that as a judicial matter, it could be interpreted by the Court in cases
that came before it.
The following week, in a cursory opinion of
four paragraphs, Justice Paterson, speaking for another unanimous Court,
dismissed the High Federalist appeal against the judiciary act of 1802 in
the case of Stuart v. Laird.61 "The question is at rest,"
said Paterson, "and ought not now to be disturbed."62 The judicial
challenge mounted by the High Federalists had been defeated. The Marshall
Court had twice demonstrated that it would not be made an instrument of
partisan politics. The rule to show cause directed to Madison had been
dismissed, and Congress’s authority to determine the organization of the
lower courts had been sustained. The Republicans, many of whom had
anticipated that the Court would rule against them, were overjoyed at the
holdings.63 The Federalists, who were the big losers, were somewhat
mollified by the careful phrasing of Marshall’s decision in Marbury Above
all, the Supreme Court had avoided the trap that the irreconcilable had
prepared for it.
Sir Lewis Namier, the distinguished British
historian, once observed that scholars are inclined to remember the present
and to forget the past. In few instances is that more evident than in the
treatment of Marbury v. Madison. Biographers, historians, and legal
scholars have read back into the case the bitter hostility between Jefferson
and Marshall that developed during the treason trial of Aaron Burr in 1807.
The two men were never fond of each other, but in 1803, when the decision in
Marbury came down, they shared a continuing concern to moderate the
partisanship that divided the nation. The president did not comment publicly
or privately on the decision at the time, and Marshall’s assertion of the
Court’s authority to declare an act of Congress unconstitutional was not
controversial.64 In fact, it was consistent with the views that Jefferson
himself had expressed in the draft of his first message to Congress in
December 1801. In later years Jefferson became a bitter critic of Marbury
v. Madison. But his ire was directed solely at Marshall’s obiter
dictum concerning Marbury’s right to his commission, not at the Court’s
exercise of judicial review.65
(*Charles Warren, one of the most eminent
historians of the Supreme Court, notes that " No more striking example
of the non-partisanship of the American Judiciary can be found than this
decision by a Court composed wholly of Federalists, upholding, contrary to
its personal and political views, a detested Republican measure." The
Supreme Court in United States History 272 (Boston: Little, Brown, 1926).
In a lengthy discourse on the Sedition Act,
Jefferson made it clear that he believed each branch of government had a
right to decide for itself on the constitutionality of matters before it. In
words with which Marshall would not have disagreed, Jefferson said,
"Our country. has thought it proper to distribute the powers of its
government among three equal and independent authorities, constituting each
a check on one or both of the others, in all attempts to impair its
constitution. To make each an effectual check, it must have a right in cases
which arise within the line of its proper functions, where, equally with the
others, it acts in the last resort and without appeal, to decide on the
validity of an act according to its own judgment, and uncontrolled by the
opinions of any other department. We have accordingly, in more than once
instance, seen the opinions of different departments in opposition to each
other, and no ill ensue."
At the last minute, Jefferson deleted the
passage for fear that it would be "chicaned" by his political
opponents. It was first discovered and made public by Charles A. Beard in
his Economic Origins of Jeffersonian Democracy 454-455 (New York: Macmillan,
1915). For a discussion of Jefferson’s views on the "tripartite"
theory of constitutional interpretation, which suggests that the theoretical
differences between him and Marshall have been greatly exaggerated, see
Dumas Malone, Jefferson the President: The First Term 151-156 (Boston:
Little, Brown, 1970).)
The Republican press, which often took its
cue from the president in such matters, not only refrained from criticizing
the decision but reported the Court’s holding extensively and advised
readers of its importance.66 Several newspapers printed Marshall’s opinion
verbatim—all 11,000 words. The National lntelligencer devoted three issues
to the holding,67 the Near York Spectator two,68 and the Aurora two,69 each
paper preempting much of its coverage of the crisis on the lower Mississippi
to do so. By contrast, the Federalist press devoted little attention to the
decision. Praise for it was markedly restrained, and what little there was
focused on Marshall’s comments about Marbury’s right to his commission,
not the Court’s holding that section 13 of the Judiciary Act was
unconstitutional. An exception was the Washington Federalist, the organ of
the moderate wing of the party, which printed the complete text of the
decision.70 Like the Republican press, it commented on the conciliatory
nature of the holding, which it said "will remain as a monument of the
wisdom, impartiality and independence of the Supreme Court."71
In Congress, which remained in session until
March 3, not one word of criticism was offered, in either the House or the
Senate. The authority of the Supreme Court to overturn an act of Congress
went unchallenged, and Marshall’s reasoning was not questioned. The chief
justice’s contemporaries recognized that the decision fit squarely with
his preference for moderation, and even the most radical Republicans hailed
his efforts to extricate the Court from the partisanship that had engulfed
it. The Aurora, in a rare tribute to someone outside the Republican fold,
saluted Marshall as the hero of the hour. "The weight of your
authority. . . calmed the tumult of faction, and you stood, as you must
continue to stand, a star of the first magnitude."72
The decision itself is one of the great
constitutional documents of American history. Marshall’s unadorned prose
evoked the spirit of constitutional balance: a government of laws, not of
men. The ideas he expressed were not new, nor were they tailored for
political expediency. The distinction between political questions within the
purview of the executive, discretion and legal issues within the
jurisdiction of the Court, was a constitutional principle he had articulated
convincingly during the debate on the Robbins case in 1800. The supremacy of
the Constitution, the separation of powers, and the corresponding authority
of the Court to declare an act of the legislature void when judicial
independence was threatened were principles he had held dear since his days
as a student of George Wythe at William and Mary. In 1783, as a member of
Virginia’s council of state, Marshall had refused to enforce an act of the
legislature authorizing the executive to review the conduct of judges.73 In
1788, as a member of the House of Delegates, he had joined in introducing
legislation reaffirming the separation of powers and withdrawing from
Virginia’s executive any authority over the judiciary, a measure that
passed the House unanimously.74 At the Virginia ratification convention
later that year, he had defended the authority of the judiciary to declare
an act of Congress unconstitutional.75 Even more to the point, on circuit in
Raleigh in January 1803, just one month before handing down the decision in
Marbury, he had indicated that an act of the North Carolina legislature
infringing judicial authority was void.76
With the decision in Marbury v. Madison,
Marshall was neither embarking on a crusade for judicial supremacy, nor was
he charting new territory. In restrained language, he interposed the Court
as a check against legislative omnipotence and affirmed the principles that
lie at the root of constitutional government. The people, not the
government, are sovereign, and the Constitution reflects their will. By
exercising judicial review, the Court was merely enforcing the will of the
people as expressed in the Constitution, over the desire of the government
as expressed in the statute. Marshall’s reverence for the Constitution set
the tone of the decision. The care and patience with which he elucidated the
issues elevated the Court above partisanship. Marshall articulated the
virtues of limited government. Read in its entirety, Marbury v. Madison
is an essay on the necessity for moderation. It is a primer on
representative government, a rationale for the rule of law. It is the first
of Marshall’s great constitutional decisions, and perhaps his most
eloquent.
Jean Edward Smith, the author of
John Marshall - Definer of a Nation, is a Professor of Political Science
at the University of Toronto.
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