Marbury v. Madison

Marbury v. Madison

Supreme Court of the United States
Argued February 11, 1803
Decided February 24, 1803
Full case name: William Marbury v. James Madison, Secretary of State of the United States
Citations: 5 U.S. 137; 5 U.S. (1 Cranch) 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352
Prior history: Original action filed in U.S. Supreme Court; order to show cause why writ of mandamus should not issue, December, 1801
Subsequent history: None
Holding
Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. Congress cannot pass laws that are contrary to the Constitution, and it is the role of the Federal courts to interpret what the Constitution permits.
Court membership
Chief Justice: John Marshall
Associate Justices: William Cushing, William Paterson, Samuel Chase, Bushrod Washington, Alfred Moore
Case opinions
Majority by: Marshall
Joined by: Paterson, Chase, Washington
Cushing and Moore took no part in the consideration or decision of the case.
Laws applied
U.S. Const. arts. I, III; Judiciary Act of 1789 § 13

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)[1], is a landmark case in United States law and the basis for the exercise of judicial review of Federal statutes by the United States Supreme Court under Article Three of the United States Constitution.

The case resulted from a petition to the Court by William Marbury, who had been appointed as Justice of the Peace in the District of Columbia by President John Adams shortly before leaving office, but whose commission was not delivered as required by John Marshall, Adams's Secretary of State. When Thomas Jefferson assumed office, he ordered the new Secretary of State, James Madison, to withhold Marbury's and several other men's commissions. Marbury and three others petitioned the Court to force Madison to deliver the commission to Marbury. The case was ultimately unsuccessful for Marbury, who never became a Justice of the Peace in the District of Columbia.

Contents
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Background of the case

William Marbury
William Marbury

In the Presidential election of 1800, Thomas Jefferson defeated John Adams, becoming the third U.S. President. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, Adams and the Federalist-controlled U.S. Congress were still in power. Congress passed a new Judiciary Act, creating a number of new courts to be controlled by the Federalists.

On March 2, two days before his term was to end, departing President John Adams, in a frantic attempt to stem in-coming tide of a Republician controlled Congress and Administration by appointed insuring a Federalist controlled judiciary, appointed sixteen safely Federalists circuit judges and forty-two justices of the peace to positions created by the Judiciary Act of 1801. These appointees were the infamous "Midnight Judges", all in Washington and Alexandria. One of these appointees was William Marbury, a native of Maryland and a prosperous financier, was an ardent Federalist, active in Maryland politics and a vigorous supporter of an effort to alter the way the Electoral College electors were selected in Maryland which, if it had succeeded, would have led to the re-election of Adams. Marbury had been appointed to the position of justice of the peace in the District of Columbia; justices of the peace, at the time, were judicial officers established by the Federalist controlled Congress with the creation of the Judiciary Act of 1801; the term for a justice of the peace was for five years, and "they are authorized to hold courts and cognizance of personal demands of the value of 20 dollars".[2]

On the following day, March 3, these appointments were approved en masse by the Senate; however, to go into effect these commissions had to be delivered to those appointed. This task fell to John Marshall, who, even though recently appointed Chief Justice of the Supreme Court, was at that time continuing as the acting Secretary of State, by the Adams' personal request.

While a majority of these commissions were delivered, it proved physically impossible for all of them to be delivered before Adams' term as president expired. Yet as these appointments were essentially routine in nature, Marshall understandably assumed the in-coming Secretary of State James Madison would see they were delivered; they had, after all, been properly submitted and approved, and were, therefore, legally valid appointments.[3]

On March 4,1801, Thomas Jefferson was sworn in as President of the United States by Chief Justice Marshall. Though distant cousins, no love was lost between the two men. Jefferson was at this moment the more uncongenial of the two, because, in part, of Marshall's appointment as Chief Justice and his alliance with Adams and the other Federalists.[4] Levi Lincoln was the new administration's Attorney General and acting secretery of state, a place holder till the arrival of Madison shortly thereafter. As soon as he was able, the newly sworn in President Jefferson ordered Levi Lincoln not to deliver those remaining appointments. In Jefferson's opinion, the undelivered commissions, not having been delivered on time, were void. Jefferson's action was not one of waspish vendictiveness towards a defeated political foe; the motive ran much deeper.

Though George Washington was never to be part of any political party, it was under his administrations that the two major political divisions, or "parties" known today in the United States, coalesced. Their origins stretched back before the birth of Washington himself, back to England.

With the abdication of James II in 1699 and the ascension of William and Mary (William of Orange and his wife Mary Stuart, daughter of James II) to the throne of England, the English political landscape had been altered forever, dividing into two political camps: the "Town Party" followers of William, internationalists, "money men", etc., and the "Country Party" nationalists, supporters of traditional "mere Englishness", etc. These political ideas were carried with the immigrants to the American colonies. Once in America, the "Town Party" was to evolve over the years into the New England, Yankee, business-and-money, centralized goverment Federalist Party. The agricultural based, states' rights, Southern gentry embraced the philosophy of the British "Country Party", and became known as the Democratic-Republican Party, (or sometimes as the "Republican/Jeffersonian Party" after its most ardent champion Thomas Jefferson). Both parties had internal factions and splinterings, and, there were, of course, many other, far smaller, independent political parties on the scene.

Secretary of State James Madison was ordered by Jefferson to withhold the commissions.
Secretary of State James Madison was ordered by Jefferson to withhold the commissions.

Washington belonged to neither; Adams was a Federalist -- albeit a rather wobbly one -- with a belief in federalized power(s), support for the Bank of the United States, a flexible interpretation of the Constitution, etc. Jefferson, for his part, was an impatient Republican, a firm believer in states' rights, suspicion of a central government, opposition to the Bank of the United States, a believer in a strict interpretation of the Constitution, etc; but over and above all this, to Thomas Jefferson Republicanism was a calling, a mandate, the only real hope the new nation had to bring out the glories, the virtues, the limitless possibilies of mankind.

The American voters, swayed by both the political election strategy of the Republicans, and the slip-shod re-election campaigns of the Federalists, voted the Federalists out and gave to both the Houses of Congress and the presidency to the Republicans; all that remained to the Federalists was the control of the judiciary. The still Federalist controlled Congress passed the Judiciary Act of 1801 in which they sought to limit the damage -- both to the party and the nation -- they felt sure a Republican controlled legislature and executive would cause. The Act modified the famous Judiciary Act of 1789 in that it:

(This way even if one justice died or retired while the Republicans were in control, the Republicans would be unable to fill the position with their own choice.)

Hence Adams' frantic "midnight appointments"; it was an attempt to maintain the Federalist party's grip on at least one branch of government: the Judiciary. Jefferson, Madison, and all high ranking Republicans knew this, and which was the chief reason Jefferson so ordered the remaining Federalist commissions not to be delivered, regardless of the legality of this action.

For its own part the newly sworn in Republican congress immediately set about voiding the Judiciary Act of 1801 with their own Judiciary Act of 1802 which turned back the clock so that the Judicial branch of the government once again operated under the dictates of the original Judiciary Act of 1789. In addition, it replaced the Court's two annual sessions with one session to begin on the first Monday in February, and "cancelled the Supreme Court term scheduled for June of that year [1802]... seeking to delay a ruling on the constitutionality of the repeal act until months after the new judicial system was in operation." [6]

And when after fourteen months the United States Supreme Court opened its door in February 1804, the case of Marbury v. Madison was waiting for them.

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Status of the judicial power before Marbury

Sir Edward Coke
Sir Edward Coke

Like countless streams flowing into a great river that snakes its way to the sea, so to did Marbury v. Madison had all manner of history flowing into it, and a fair amount of flotsam swept along with it. An example of this would be that this case was more or less the first real time the judiciary had passed offical judgement -- "judicial review" -- on the laws and acts of legislators, but power of judicial review had ancient roots streching back to the (then) controversial nullify statutes of 1610 laid down by the famous 17th century British legalist Edward Coke[pronounced: 'cook'].

Yet another one could be the mistaken notion that Marbury v. Madison was a trial. It was not. There were no battling lawyers, no witnesses, no cross-examination, and so on. Marbuy v. Madison is were an attorney by the name of Charles Lee, Esq. attorney-at-law and former United States Attorney General came before the Supreme Court on behalf of his clients Dennis Ramsay, Robert Townsend Hooe, William Harper, and William Marbury, men who had not been given the legal documents due them: The lawful commissions signed by the former president John Adams shortly before his term was to expire. Lee asked the court to issue a writ of mandamus -- a legal order "directed to any person, corporation, or inferior court, requiring them to do some particular thing therein specified...and which the court has determined...to be consonant to right and justice"[7] -- to be served to secretery of state James Madison; and thereby in a roundabout way to Jefferson himself, for Madison could only act under his orders. Lee pointed out that in forming and passing the Judiciary Act of 1789 Congress had given the Supreme Court the right to issue a writ of mandamus. The exact words read:

"...the Supreme Court shall also have appellate jurisdiction from the circuuit courts, and courts of the several states, in cases provided for, and shall have power to issue writs of prohibition to the distict courts...and writs of mandamus, in cases warrented by the principles and usages of law..."

But there was more to it than the Supreme Court issuing an order to turn over some papers: Among the states, and most citizens, the judiciary as a whole was looked upon as little more than the hand maiden of whichever party held political power. There, of course, had been occasional cases when a state court had gone against, ruled against, or found against various laws and acts of their state legislator, but these straying judges were brought sharply, sometimes very sharply, to heel. To Jefferson and the Republican party (and, if the truth be known, as goodly number of Federalists as well) felt that what was good and proper for states' governments with their firm rein on their courts, was likewise good and proper for the Federal government, and the party in power, vis-à-vis the Supreme Court; all the more so since they -- the Republicans -- had come to power, and their arch rivals the Federalists, were imploding.

"At bottom, the Jeffersonians really did not believe in law--or not, at any rate in the historical English concept of law as something fixed, immutable...Rather they believed in government by the good and the wise...The colonial Virginian system of justice of the peace was one of their models...Still another was the plantation system, wherein the master rules absolutely,but only if he rules wisely and well; the check upon him was the opinion of his peers. In other words, [the] law was a convenience and a norm that could and should be set aside when the needs of society -- as judged by its wisest and most virtuous members--so dictated."[8]

The idea that courts could declare statutes void waxed and then waned in England, but it was well known in the American colonies and in the bars of young states, where Coke's books were very influential. The doctrine was specifically enshrined in some state constitutions, and by 1803 it had been employed in both State and Federal courts in actions dealing with state statutes. (See, e.g., Bayard v. Singleton, 1 NC (Martin) 5 (1787); Whittington v. Polk, 1 H. & J. 236 (Md.Gen. 1802) (Samuel Chase, J.); State v. Parkhurst, 9 N.J.L. 427 (N.J. 1802); Respublica v. Duquet Shippen, 2 Yeates 493 (Pa. 1799); Williams Lindsay v. East Bay Street Com’rs, 2 Bay (S.C.L.) 38 S.C.Const.App. 1796)(Thomas Waties, J.).; Ware v. Hylton, 3 Dallas (3 U.S.) 199 (1796); Calder v. Bull, 3 Dallas (3 U.S.) 386 (1798); Cooper v. Telfair, 4 Dallas (4 U.S.) 14 (1800); Vanhorne’s Lessee v. Dorrance, 28 F. Cas. 1012, 2 Dallas (2 U.S.) 304; 1 L. Ed. 391; C. Pa. 1795).)[9]

Some legal scholars argue that the concept of judicial review and the legal basis for it predate the case, and that Marbury merely formalized it. For example, Saikrishna Prakash and John Yoo argue that during the ratification of the Constitution, "[N]o scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing."[10]

However, it is important to note that nothing in the text of the Constitution explicitly authorized the power of judicial review, despite persistent fears voiced by Anti-federalists over the power of the new Federal court system.

The concept was also laid out by Hamilton in Federalist No. 78:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[11]
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Relevant law

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U.S. Const. art. III, § 2 Clause 2

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

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Judiciary Act of 1789, § 13

"The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts . . . and writs of mandamus . .  to any courts appointed, or persons holding office, under the authority of the United States."

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The issue

There are two ways the Supreme Court can hear a case: (1) filing directly in the Supreme Court; or (2) filing in some lower court, such as a district court, and appealing all the way up to the Supreme Court. The first is an exercise of the Court's original jurisdiction; the second is appellate jurisdiction.

Because Marbury filed his petition for the writ of mandamus directly in the Supreme Court, the Court needed to be able to exercise original jurisdiction over the case in order to have the power to hear it. However, the Constitution specifically enumerates in Article III what types of cases the Supreme Court can hear under its original jurisdiction. Most legal scholars agree that Marbury's case does not fit into any of those categories of cases.

Marbury's argument is that in the Judiciary Act of 1789, Congress granted the Supreme Court original jurisdiction over petitions for writs of mandamus. This raises several issues that Marshall has to address:

In short, the constitutional issue of Marbury v. Madison is whether Congress can change the original jurisdiction of the Supreme Court.

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The decision

An engraving of Justice Marshall made by Charles-Balthazar-Julien Fevret de Saint-Mémin in 1808.
An engraving of Justice Marshall made by Charles-Balthazar-Julien Fevret de Saint-Mémin in 1808.

The Court rendered a unanimous (4-0) decision on February 24, 1803.[12] Chief Justice Marshall wrote the opinion of the court. Marshall presents the case as raising three distinct questions:

  1. Did Marbury have a right to the petition?
  2. Do the laws of the country give Marbury a legal remedy?
  3. Is asking the Supreme Court for a writ of mandamus the correct legal remedy?

Marshall quickly answers the first two questions affirmatively. Marshall finds that the failure to deliver the commission was "violative of a vested legal right."

In deciding whether Marbury has a remedy, Marshall states "The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." One of the key legal principles established by Marbury is the notion that for every violation of a vested legal right, there must be a legal remedy. Marshall next describes two distinct types of Executive actions: political actions where the official can exercise discretion, and purely ministerial functions where the official is legally required to do something. Marshall finds that delivering the appointment to Marbury was a purely ministerial function required by law, and therefore the law provides him a remedy.

Note: It has become the tradition in U.S. judicial opinions that issues of jurisdiction are addressed first. If a court does not have the power to hear a case, it will not issue dicta. Chief Justice Marshall, however, did not address jurisdictional issues until addressing the first two questions presented above, most likely because the jurisdictional issue here also happened to be the constitutional issue. Because of the canon of constitutional avoidance (i.e., where a statute can fairly be interpreted so as to avoid a constitutional issue, it should be so interpreted), courts generally deal with the constitutional issues last.

In analyzing the third question, Marshall first examines the Judiciary Act of 1789 and determines that the Act purports to give the Supreme Court original jurisdiction over writs of mandamus. Marshall then looks to Article III of the Constitution, which defines the Supreme Court's original and appellate jurisdictions (see Relevant Law above). Marbury had argued that the Constitution was only intended to set a floor for original jurisdiction that Congress could add to. Marshall disagrees and holds that Congress does not have the power to modify the Supreme Court's original jurisdiction. Consequently, Marshall finds that the Constitution and the Judiciary Act conflict.

This conflict raises the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answers that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looks to the nature of the written Constitution—there would be no point of having a written Constitution if the courts could just ignore it. "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?"[13] Marshall also argues that the very nature of the judicial function requires courts to make this determination. Since it is a court's duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other, a court must decide which law applies.[14] Finally, Marshall points to the judge's oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution" before the "laws of the United States." Part of the core of this reasoning is found in the following statements from the decision:

It is emphatically the province and duty of the judicial department [the courts] to say what the law is. Those [judges] who apply the rule [of law] to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law [e.g., a statute or treaty] be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and 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.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law [e.g., the statute or treaty].
This doctrine would subvert the very foundation of all written constitutions.

5 U.S. at 177-78.

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Criticisms

A minority of legal scholars have raised questions about the logic Marshall used in determining the Judiciary Act unconstitutional, and hence the legitimacy of judicial review. They reason that Marshall selectively quoted the Judiciary Act, interpreting it to grant the Supreme Court the power to hear writs of mandamus on original jurisdiction. These scholars argue that there is little connection between the notion of original jurisdiction and the Supreme Court, and note that the Act seems to affirm the Court's power to exercise only appellate jurisdiction[15]. Furthermore, that the Supreme Court should have been able to issue the writ on original jurisdiction based on the fact that Article III of the Constitution granted it the right to review on original jurisdiction "all cases affecting . . . public ministers and consuls," and that James Madison, Secretary of State at the time and defendant of the suit, should have fallen into that category of a "public minister [or] consul."[16]

Questions have also frequently been raised about the logic of Marshall's argument for judicial review, for example by Alexander Bickel in his book The Least Dangerous Branch. Bickel argues that Marshall's argument implies an unrealistically mechanical view of jurisprudence, one which suggests that the Court has an absolute duty to strike down every law it finds violative of the Constitution. Under Marshall's conception of the judicial process in Marbury, judges themselves have no independent agency and can never take into account the consequences of their actions when deciding cases—a notion that has been attacked by Richard Posner. More generally, Marshall's argument for the notion of a judicial obligation to strike down laws "repugnant to the constitution" presupposes some sort of underlying meaning to the text of the U.S. Constitution which judges can divine, a notion contested by scholars Paul Brest and Duncan Kennedy, among others, as well as Posner.

Because the Constitution lacks a clear statement authorizing the Federal courts to nullify the acts of coequal branches, critics contend that the argument for judicial review must rely on a significant gloss on the Constitution's terms. Despite such criticisms of Marbury v. Madison, judicial review has been accepted in the American legal community.

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References and further reading

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External links

  1. ↑ Full text of the decision courtesy of Findlaw.com
  2. ↑ Ch.6, Sec. 4, Judiciary Act of 1801
  3. ↑ Sec. 3d, Marbury v. Madison,AMDOCS: www.vlib.us.
  4. ↑ McDonald, Forrest,The Presidency of Thomas Jefferson(University of Kansas, 1976)
  5. ↑ Federal Judicial History, The Judiciary Act of 1801-- Historial Note 2 Stat.89
  6. ↑ Federal Judicial History, The Judiciary Act of 1802-- Historial Note2 Stat. 156
  7. ↑ Blackstone, William, Common Law Vol. 3 p.110
  8. ↑ McDonald, Forest, The Presiddency of Thomas Jefferson, (University of Kansas Press, 1976) p.46
  9. ↑ George Fletcher and Steve Sheppard, American Law in Global Perspective: The Basics 132-34 (Oxford University Press, 2004) (ISBN 0-19-516723-6).
  10. ↑ Yoo and Prakash, "The Origins of Judicial Review," University of Chicago Law Review, Vol. 69, Summer 2003
  11. ↑ Full text of Federalist No. 78 from thomas.loc.gov
  12. ↑ Due to illness, Justices William Cushing and Alfred Moore did not sit for oral argument or participate in the Court's decision.
  13. ↑ 5 U.S. (1 Cranch) at 176.
  14. ↑ Id. at 177.
  15. ↑ Full text of the Judiciary Act of 1789
  16. ↑ Geoffrey R. Stone, et al., Constitutional Law: 29-51 (Aspen Publishers, 2005) (ISBN 0-7355-5014-X)
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