In the Presidential election of 1800, Democratic-Republican Thomas Jefferson succeeded Federalist John Adams, becoming the third President of the United States. 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 Congress were still in power. Congress passed the Judiciary Act of 1801 which modified the famous Judiciary Act of 1789 by establishing 10 new District Courts, expanding the number of Circuit Courts from 3 to 6, adding additional judges to each Circuit,reducing the number of Supreme Court justices from six to five, effective upon the next vacancy in the Court and incidentally giving the outgoing President the opportunity to appoint all these new Federal judges and justices of the peace.
On March 2, two days before his term was to end, Adams, in an attempt to preempt the incoming Democratic-Republican Party controlled Congress and Administration, appointed sixteen Federalist circuit judges and forty-two Federalist justices of the peace to offices created by the Judiciary Act of 1801. These appointees, now known to history as the "Midnight Judges", were all located in the Washington D.C. and Alexandria, Virginia area. One of these appointees was William Marbury (pictured on left), a native of Maryland and a prosperous financier as well as an ardent Federalist. Marbury was active in Maryland politics and a vigorous supporter of the Adams presidency. He had been appointed to the position of justice of the peace (now known as a Magistrate Judge) in the District of Columbia. The term for a justice of the peace was five years, and they were "authorized to hold courts and cognizance of personal demands of the value of 20 dollars".
On March 3, 1801, the appointments were approved en masse by the Senate; however, to go into effect, the commissions had to be delivered to those appointed. This task fell to John Marshall, who, even though recently appointed Chief Justice of the United States, simultaneously continued as the acting Secretary of State at President Adams' personal request. Marshall's term as Secretary of State ended on March 4. (Dual officeholding in both the executive and judicial branches would be viewed as both unconstitutional and a clear conflict of interest today.)
Most of the commissions were delivered, but it proved to be impossible to deliver all of them before Adams' term expired the next day. Because these appointments were routine in nature, Marshall assumed that James Madison, the new Secretary of State, would see they were delivered, since they had been properly submitted and approved, and were, therefore, legally valid appointments. On March 4, 1801, Thomas Jefferson was sworn in as President. As soon as he was able, President Jefferson ordered Levi Lincoln, who was the new administration's Attorney General and acting Secretary of State until the arrival of James Madison (picture above on right), not to deliver the remaining commissions, including Marbury's. Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. In Jefferson's opinion, the undelivered commissions, not having been delivered on time, were void.
The newly sworn-in Democratic-Republican Congress immediately voided the Judiciary Act of 1801 with their own Judiciary Act of 1802, so that the Judicial branch 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 "canceled 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."
Marbury filed a petition for writ of mandamus directly in the Supreme Court. A petition for writ of mandamus asks the Court to require a governmental official, in this case Madison as the new Secretary of State, to take a ministerial action -- an action that doesn't require any discretion - in this case the delivery of the already signed and approved commission. Since simple delivery of a document that is validly issued would seem to be a ministerial act, the case seemed to be a slam dunk from Marbury's point of view. But the first question that had to be answered was whether the Supreme Court was even permitted to receive a court case originally filed there (as opposed to appeals brought from other lower courts). So the first question was, "Does the Supreme Court have the authority to consider a petition for writ of mandamus?"
Section 13 of the Judiciary Act made it clear that it did:
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.
However, the Constitution had this to say in setting up the Supreme Court:
U.S. Const. art. III, Section 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."
In other words, the only times under the Constitution that the Court has original jurisdiction is if one of the parties is an ambassador, or a public Minister, or a state. Justice Marshall and his colleagues held that Section 13 of the Judiciary Act violated the Constitution when it gave the Court original jurisdiction for petitions for writs of mandamus. The bolded portion above is what the Court held was unconstitutional.
The result was Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) now regarded as the first landmark case in United States law and the basis for the exercise of judicial review under Article Three of the United States Constitution. The opinion was issued 204 years ago today on February 24, 1803. The Court handed down a unanimous (4-0) decision authored by the now new Chief Justice Marshall, that Marbury had the right to his commission but the court did not have the power to force Madison to deliver the commission, on February 24, 1803.
I'll spare you any lengthy legal analysis but the key question was whether Congress could go beyond the Constitution to expand the court's jurisdiction to take mandamus cases.
Marshall held that Congress does not have the power to modify the Constitution's grant of original jurisdiction to the Supreme Court. Consequently, he found that the Constitution and the Judiciary Act conflict. Marshall wrote that Acts of Congress that conflict with the Constitution are not valid law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review.
In support of this position Marshall looked 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?", wrote Marshall.
Marshall also argued 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, it is a court not the legislature or executive branch that must decide which law applies. Finally, Marshall pointed 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." The core of Marshall's reasoning is this passage from the opinion:
It is emphatically the province and duty of the judicial department [the judicial branch] to say what the law is. Those who apply the rule 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.
The power of judicial review is often thought to have been created in Marbury, but actually the doctrine has roots in England that go at least as far back as 1610. The idea that courts could declare statutes void was well known in the American colonies. 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, but only insofar as the statutes conflicted with the language of state constitutions.
The concept was also laid out by Hamilton in Federalist No. 78:
Among the seldom mentioned ironies of this case are:
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.
1) In what would be a clear judicial conflict of interest by today's standards, Marshall not only participated in a case he was involved in as a player if not a party, but he wrote the opinion for the court!
2) Marshall as Chief Justice wrote an opinion which essentially placed the blame for the fact that Marbury was out of luck on Marshall as Secretary of State who failed in his duty to deliver the commissions before midnight on March 5, 1801!
3) Marshall and Jefferson were not only bitter political enemies, they were cousins!
1 comment:
I am one of the (apparent) minority who believes Marbury was wrongly decided. It has something to do with that pesky little provision in the second sentence of Art. III, Sec. 2, clause 2, providing for "[e]xceptions" as mandated by Congress. In Sec. 13 of the Judiciary Act, Congress provided such an exception, which the Court conveniently chose to ignore.
So, it seems, our history of bad judicial opinions from the Court began some 204 years ago.
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