Today, February 24th, 2004, marks the 200th anniversary of
an extraordinary legal event: the Supreme Court's decision
in the case of
Marbury v. Madison. There, the Court - in an
opinion authored by Chief Justice John Marshall - ruled
that it was not bound by an act of Congress that was
"repugnant to the Constitution."
William Rehnquist has described Marbury as "the most
famous case ever decided by the United States Supreme Court."
But, at the time it was issued, neither Marshall nor his chief
adversary (and cousin), Thomas Jefferson, could have imagined
the further growth and acceptance of the power of judicial
review that Marbury declared.
Nor could Marshall and Jefferson have conceived of the extent
to which Marbury would become the poster child of the
American legal system. The Supreme Court had actually declared
an act of Congress unconstitutional in 1794. But no opinions
were announced in that case, and thus it remained for Marshall
to seize the opportunity in Marbury to provide a
rationale for judicial review.
But why should we still care about this decision? .
Marbury's Context: A
Feud Between Political Factions
The formal dispute that the case resolved was itself of minor
significance. It was an issue of political patronage, pitting
the ascendant Jeffersonians against the (soon‑to‑be) departing
Federalists. The simmering feud between them was intense. The
case can only be understood against the background of the
election of 1800, in which Thomas Jefferson defeated the
incumbent president, John Adams, and his Democrat-Republican
party also gained control of the Congress.
In
those days, there was a long lame duck period between the
November election and the inauguration of a new president. And
the Congress that met in December 1800 was the old Congress.
So the Federalists still controlled the government until March
4, 1801. Adams appointed John Marshall as Secretary of State,
and then appointed him also as Chief Justice of the United
States when that position became vacant. The
Federalist-dominated Congress passed the Judiciary Act of
1801, which created circuit courts of appeal much like they
are today, and relieved the justices of the Supreme Court of
their obligation to "ride circuit." It also increased the
jurisdiction of the federal courts. Adams immediately
appointed 16 new judges to these courts--all Federalists--and
all were confirmed by the Senate.
On
February 27, 1801, just days before Jefferson was to take
office, Congress passed another bill. The Justice of the Peace
Act provided Adams with the opportunity to appoint 42 justices
of the peace to five-year terms in Washington and Alexandria.
Most of Adams's nominations went to deserving Federalists, and
all were confirmed by the Senate. William Marbury was one of
those appointed.
The judicial commissions were signed by Adams, and the seal of
the United States affixed, on March 3rd. These were known as
the "Midnight Judges." John Marshall, as Secretary of State,
was responsible for delivering the commissions. Historians
differ on whether none or some of the commissions were
delivered. But of those not delivered, one belonged to Marbury.
Jefferson ordered his Secretary of State, James Madison, not
to deliver the commissions, although eventually some were (but
not Marbury's).
Marbury, born in Maryland on a tobacco plantation, had
achieved great success as a financier, with strong ties to the
Federalists, and he had become quite prominent in Washington.
Marbury and several others brought a lawsuit to compel Madison
to deliver their commissions. They asked the Supreme Court, in
its original jurisdiction, to issue a writ of "mandamus" -- a
court order directing Madison (but really Jefferson) to carry
out his lawful and non-discretionary duty to deliver the
commissions. Thus the name of the case,
William Marbury, et al. v. James Madison.
Marbury's Initial
Quiescence
Marshall never declared another act of Congress
unconstitutional. Indeed, Marbury lay fallow for most
of the 19th century.
It
was not until 1857 that the Supreme Court again invalidated an
act of Congress In the notorious Dred Scott case, Chief
Justice Roger B. Taney invalidated the Missouri Compromise of
1820, inflaming the slavery issue beyond repair. His decision
denying that Congress could end slavery in the territories
also damaged the Supreme Court's reputation, and threatened
the continued viability of judicial review.
The opinion did not even mention the Marbury case,
which was not cited as an authority for judicial review until
1887. And not until 1895 was it employed in actually striking
down an act of Congress. As of the end of 2002, the Supreme
Court had struck down 158 provisions of federal statutes.
(Eleven of those came in the years 2000‑2002 alone! The
Rehnquist Court, it turns out, is far more activist in this
regard than the Warren Court ever was.)
Marbury's Profound and Lasting ‑ If Delayed ‑
Impact
Virtually all constitutional law courses in America's colleges
and law schools begin with the Marbury case. And there
are good reasons for this. With the possible exception of the
Supreme Court's 1819 decision in McCulloch v.
Maryland - which held that Congress had broad "implied"
powers under Art. I, Sec. 8, Clause18 (the "Necessary and
Proper" clause), and is generally considered to be the
foundation of the modern state - no other case from this
period offers so much.
Despite its archaic language, Marbury comes alive for
students. They respond to its intrigue and machinations, to
Marshall's epic confrontation with Jefferson, to his disputed
rationale for recognition of the power of judicial review, and
his skillful manipulation of institutional strength and
weakness. In all of these, they recognize the blueprint of a
hybrid legal/political Supreme Court in the making. The full
realization of Marbury, thus, is largely a product of
the 20th century.
Marbury's visibility
and influence now extends far beyond America's borders. It has
been an inspiration and a model for many of the world's
constitutions - particularly those created or redrafted after
World War II, and then after the demise of the Soviet bloc.
Marbury is cited
worldwide as an authority on a host of fundamental questions
relevant to any country with a constitution and courts: What
should the role of constitutional courts be? What should the
shape and extent of judicial review be? What are the limits of
judicial activism? Why are checks and balances, and the idea
of limited government, essential to constitutional government?
How can, and why should, a country commit itself to
constitutional rule and the rule of law?
Meanwhile, with respect to the U.S.'s own law and history,
there are several "issues" relating to the Marbury
case, and John Marshall's rationale for assumption of the
power of judicial review, that deserve continued reflection
and debate.
Issue #1: The Origins of the Marbury
Case and the Legitimacy of Judicial Review
Although judicial review seems to have survived the test of
history, its origins remain troublesome. To understand why,
some explanation of the relevant facts of the case is in
order.
The decision was based on Marshall's interpretation of two
documents: Section 13 of the Judiciary Act of 1789 ("Section
13"), and portions of Article III of the Constitution ‑ which
defines the powers of the federal judiciary. Among other
provisions, Article III defines the Supreme Court's "original
jurisdiction" - that is, the few types of cases that can be
brought directly to the Supreme Court. These are "cases
affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be party."
In
all other cases, Article III makes clear, the Supreme Court
has only appellate jurisdiction. Article III also says that
the Court's appellate jurisdiction is subject to "such
Exceptions and . . . Regulations as the Congress shall make."
No such provision is made with respect to the Court's original
jurisdiction. The Constitution thus implicitly suggests that,
in contrast, the Court's original jurisdiction is not
subject to congressional regulation.
All of this legal detail is by way of introduction to the
dilemma that John Marshall faced in Marbury. The
fundamental question was, did the Supreme Court have the
jurisdiction (for example, the constitutional authority) to
issue the writ of "mandamus" that Marbury sought?
Marshall argued that in Section 13, Congress had improperly
attempted to add to the Court's original jurisdiction, as
Article III implied Congress could never do. Congress did so,
according to Marshall, by conferring on the Supreme Court
power to issue a writ of mandamus - that is, an order
compelling an official to carry out a non-discretionary
("ministerial") act.
But there are numerous problems with this argument - as should
be clear if one reflects that the Constitution and Section 13
shared the same drafters, and were not meant to conflict, but
to be entirely consistent with each other.
First, Article III appears to prohibit Congress from making
"exceptions" to (that is, subtractions from), or "regulations"
of the Court's original jurisdiction. Yet it never says
Congress cannot add to that jurisdiction.
Second, in what sense does the power to issue a writ of
mandamus that Section 13 granted actually add to the Court's
jurisdiction at all? A writ of mandamus is not a new type of
case. And jurisdiction, according to Article III as well as
the common understanding of the term, has to do with types of
cases (or parties), not mechanisms of judicial power.
Marshall could easily have assumed that Section 13 merely gave
the Supreme Court the power to issue a writ of mandamus in
cases in which it already had jurisdiction. But Marshall
understood that otherwise the Court had no authority to hear
Marbury's case in its original jurisdiction (Marbury
was obviously not an "ambassador, public minister or
Consul). This would have removed the opportunity for him to
proclaim the power of judicial review because Congress would
not then have acted unconstitutionally.
Thus, Marshall was able to hold that Marbury was entitled to
his commission, and that the Jeffersonians were wrongfully
denying him his judgeship, while at the same time claiming he
was unable to order Madison to deliver the commission (an
order which Jefferson almost certainly would have directed
Madison to disobey), and acquire the vastly more
important power of judicial review. It was, for Marshall and
the Supreme Court as an institution, a great bargain!
At
the same time as he was interpreting the Constitution both
narrowly (holding that Section 13 was unconstitutional) and
broadly (that even though it was not mentioned specifically,
judicial review was implied by Article III), Marshall was
establishing an important duality: although the Constitution
was "higher law," paramount to all other law, and not to be
easily amended, it could nevertheless be interpreted and
molded to achieve important societal and institutional goals.
Marshall would express this idea even better in McCulloch,
where he wrote that "this is a constitution intended to endure
for ages to come," and that it is "a constitution we
are expounding." His language suggested that built into the
Constitution was a flexibility that would guarantee that it
would indeed "endure," rather than breaking of its own
rigidity.
Issue #2: Why Did Marbury Choose to Invoke the
Supreme Court's Original Jurisdiction--and Then Not Bring His
Case to a Lower Court Where He Surely Would Have Won?
Another mystery of Marbury is this one: the Supreme
Court, as we have seen, denied Marbury and the other
plaintiffs the remedy they sought, even though they were
properly "entitled" to it. The Court refused to grant the writ
of mandamus on the ground that Section 13, which had conferred
that power on the Court, was unconstitutional. But the
plaintiffs were not at a loss. They had another option. but
didn't use it. Why?
After losing in the Supreme Court the plaintiffs could have
applied to the Circuit Court of the District of Columbia for
the writ of mandamus that would have gotten them their
commissions. The D.C. Circuit clearly had the power to issue
the writ. So why didn't the plaintiffs go there? (And for that
matter, why didn't they go to the D.C. Circuit Court first,
before going to the Supreme Court?).
Georgetown Law professor Susan Low Bloch has recently offered
an explanation to solve this mystery. She suggests that
perhaps the plaintiffs really weren't interested in the
commissions. After all, they were to a low level court, and
expired in only three years.
(Indeed, it is not even clear that Marshall was correct when
he implied that Jefferson had deprived Marbury of his
commission by not delivering it to him. Marshall himself said
that when the commission was signed and sealed correctly;
Marbury was entitled to it. Why was the delivery of the
commission even necessary? Why then didn't Marbury just assume
his new role as a justice of the peace?)
Why, therefore, did the plaintiffs seek the writ of mandamus
in the Supreme Court? It appears that this may have been part
of a plan by radical Federalists to compel Chief Justice
Marshall to escalate the political conflict with the
Jeffersonians. The "High" Federalists apparently hoped that
Marshall would issue the commissions, and thus further
aggravate conflict between the parties when Jefferson
prevented their delivery.
But Marshall, despite his critics, was more of a centrist than
a radical Federalist. And so he sought to avoid, not
precipitate, a confrontation with Jefferson.
Marshall knew full well that Jefferson would not permit
delivery of the commissions. So he wrote an opinion for the
Court that did not order Jefferson to do so. But at the same
time, Marshall used the opportunity to claim the more
important power of judicial review. Circumstantial evidence
thus suggests that even if he played no role in devising
Marbury's strategy, Marshall must have been aware of it.
Issue #3: Should the Judiciary Have a Monopoly
on Constitutional Interpretation?
Was Marshall right when he suggested in Marbury that
judicial review ‑ testing statutes against the Constitution ‑
is an exclusive power of the Supreme Court?
Certainly Marshall made a strong argument for judicial review
as a power of the Supreme Court. But his argument for
exclusive "monopoly" power is weak at best. He argued that "it
is, emphatically, the province and duty of the judicial
department, to say what the law is." But while he establishes
fidelity to the Constitution as the judiciary's duty, he does
not necessarily demonstrate that it is only the judiciary's
province - as opposed to the province of all three branches of
government. For example, Marshall notes that in a written
constitution of enumerated powers, the constitution is
superior to ordinary law. But his deductive argument that this
implies exclusive judicial review is not compelling.
Marshall noted that the judges take an oath to honor the
Constitution. But he neglected to say that so do members of
the other branches of government, and therefore they are
equally bound to act constitutionally. Why is the judgment of
constitutionality the Court's job alone?
These are good questions, but Marshall's view, whatever its
logical and historical shortcomings, has endured. That's
because judicial review has worked reasonably well, and no one
has come up with a better idea. Alternate theories, for
example, that each branch may interpret the Constitution's
meaning for itself, or that the first branch to interpret a
provision of the Constitution prevails, have never commanded
much support.
To
say that the Supreme Court has designated itself as the final
arbiter of the Constitution's meaning, is not to say that the
Court is "all-powerful." It dodges some questions on the
ground that they are too "political" and should be decided by
the other branches. And as Louis Fisher and others have noted,
the Court's judgments are not always final, or obeyed. Talk
about "judicial supremacy" thus is usually more rhetorical
than real.
There are other gaps in the Court's alleged control of
constitutional meaning. For example, there are many issues
about which the Constitution is "silent," or where the Court
has simply not spoken. These include, for example, the grounds
for impeaching a president (what are "high crimes and
misdemeanors?"), whether a president can pardon himself, and
the extent of the president's "war powers." These
constitutional issues, and others like them, are governed by
what might be called "constitutional understandings"-- norms
that prevail by agreement or circumstance unless and until the
Court addresses them.
For all these reasons, while the Supreme Court is certainly no
longer the "least dangerous branch" that Alexander Hamilton
described in Federalist 78, it is also not all powerful, nor
always "supreme in its exposition of the constitution.".
Issue # 4: How much Judicial Review was
Marshall Claiming?
How Should the Constitution be Interpreted?
How much judicial
review was Marshall claiming? Not an easy question when the
Constitution does not even mention such a power. Technically,
one could describe the outcome in Marbury as a
"defensive" maneuver--the Court claiming only enough power to
protect itself from powers improperly conferred on it by
Congress--and thus only a modest and limited charter of
judicial review, under which each branch could protect itself
from the unconstitutional actions of the other branches. And
one can certainly see in Marshall's opinion concerns about the
consequences of judicial overreaching.
But most of the language of Marshall's opinion is
couched in broader terms. There is here (as in some others of
Marshall's opinions) a strategic ambiguity, designed to avoid
controversial issues or future entanglements. Perhaps the
opinion is better described as passive-aggressive rather than
merely defensive.
In
today's debates over how to interpret the Constitution,
Marshall's opinion in Marbury would certainly place him
in the "interpretivist" category of "non-originalist" judges
who reject the claim that the Constitution means only exactly
what it says, or its framers clearly intended. Marshall was at
least arguably the first judicial activist (though the fourth
chief justice).
It
would be difficult to find a better primer of judicial
activism than the Marbury opinion. Indeed, in his
originalist treatise, The Tempting of America, Robert
Bork conceded that Marbury was an activist opinion that
epitomized a "loose construction" of the Constitution, but
embraced the decision nonetheless because it had produced a
good result. Even originalism can be flexible when necessary!
Issue #5: Judicial Review and Democracy
Finally, and perhaps most important, there is the issue of the
compatibility of judicial review with principles of democracy.
Robert McCloskey once observed, sagely, that there is an
inescapable tension between the rule of law and popular
sovereignty. Today the implications of that dilemma are
debated in the framework of Alexander Bickel's contention that
judicial review poses a "countermajoritarian difficulty."
Bickel argued that because of this tension, non-elected judges
must show great restraint in overturning laws passed by the
people's representatives. They have an obligation to make
"principled" decisions, and to intervene in the political
process only when absolutely necessary--when there has been a
"clear mistake."
Bickel's critics note, however, that ours is not a pure
majoritarian system. It is a constitutional democracy with a
commitment to individual rights that presupposes limits on
majority rule. No one can "solve" this debate, but no one can
ignore it either!
Why Marbury,
For So Many Reasons, Still Matters. The bottom line is that
Marbury v. Madison, with all its imperfections and
contradictions, continues to warrant our attention.
It
created a model of judicial independence. It established the
fundamental architecture of constitutional review. It planted
the seed for the political questions doctrine, and enriched
the separation of power principle through Marshall's emphasis
on the distinction between ministerial acts--which judges
could review--and discretionary political acts which it could
or should not. And it perennially compels us to think about
the evolving nature of democratic governance.
A
final legacy of Marbury is particularly trenchant
today. Marshall's efforts to protect the Court by avoiding a
major brawl with Jefferson have been replayed time and again,
as the Supreme Court has deferred to the President in
reviewing his authority, particularly in times of war and
emergency. Marshall let Jefferson off the hook; to hold him to
strict accounts would have been too risky, both for Marshall
himself (he regarded contemporary efforts to impeach him as
serious), and for the Court itself. The Warren Court refused
to confront Presidents Johnson and Nixon on the legality of
the war in Vietnam. Will the Supreme Court, when asked to make
a constitutional assessment of the "war on terrorism," do the
same for George W. Bush and John Ashcroft?
Marbury is still
prime time! How can we not care?
