MADBURY V MADISON AND JUDICIAL REVIEW.

Marbury v. Madison:

Roman Emperor Julius Caesar is well known for his love of power &endash; power frequently

gained as much through cunning and deceit, as through the strength of his armies. Caesar used

his armies to expand his empire externally, but internally, Caesar rose to power mischievously,

seemingly unnoticed. Like Caesar, Chief Justice John Marshall also apparently loved power.

Marshall created his power out of the broad language of the Constitution. Unlike Caesar,

however, Marshall never utilized the power he created to build his own empire. Rather,

Marshall would use legal cunning and deceit to alter the balance of power between

competitors.

President John Adams appointed John Marshall as Supreme Court Chief Justice in 1800.

Marshall presided over the court for the next thirty-five years. In just a three-year period,

Marshall developed a means to fulfill his lust for power. His opinion in Marbury v Madison 5

U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) achieved his ultimate end of giving substantial power to

the Supreme Court that had previously been all but ignored in the early years of the nation.

The legal reasoning Chief Justice Marshall used in his opinion manipulated the Constitution to

create what we now know as "judicial review." Judicial review allows the Supreme Court the

ability to nullify acts of Congress and the President by declaring them to be unconstitutional.

Judicial Review is not explicitly written in the Constitution. Marshall created it. He attempts to

provide examples of where he thinks the Framers of the Constitution intended the Supreme

Court to posses this power, but closer scrutiny will reveal his deceitful intentions. Although

lacking clear constitutional grounding and fraught with shady legal reasoning, scholars of

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Marbury v. Madison nevertheless find Marshall's opinion "nothing short of genius."2 It brought

into being one of the greatest powers possessed by any single branch of American government.

For the first twelve years of this country's existence, the Federalist Party controlled both the

Executive and the Legislative branches of the government, giving them a firm grasp on political

power. "In the November elections of 1800, the Republican Party ousted the Federalists from

both the Presidency and the Congress."3 This created a "lame duck" government, with months

left for the out-going Federalists to draft new legislation before the Republicans took office in

March.4 Using this opportunity, the Federalists began to create new judgeships, awarding them

to party loyalists, and thereby ensuring the party retained some role in the national

government.

William Marbury, a loyal Federalist, was commissioned as Justice of the Peace for Washington,

D.C. Federalist President John Adams signed his commission and Secretary of State John

Marshall affixed the seal of the United States to it.5 In the haste of the pending transition of

power, however, the commission was not physically delivered to Marbury. When the

Republicans took office, James Madison, the new Secretary of State, acting on behalf of

President Thomas Jefferson refused to deliver the commission, claiming the chief executive did

not have to honor it because former Secretary of State Marshall 6 never delivered it.

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Marbury then petitioned the Supreme Court to issue Madison a writ of mandamus, ordering

him to deliver the commission. Because Madison was Secretary of State, Marbury believed the

Supreme Court had original jurisdiction in his case. Article III Section 2 of the Constitution

provides, in part, that the Supreme Court shall have "original jurisdiction in all cases affecting

ambassadors, and other public ministers."7 Assuming Secretary of State Madison was a "public

minister," the court would apparently have jurisdiction.

Marbury specifically sought a writ of mandamus under the terms of Section 13 of the Judiciary

Act of 1789. A writ of mandamus is a judicial order used "to command a particular thing or

action from a public official therein specified, which appertains to his office and duty, and which

the court has previously determined, or at least supposed, to be consistent to right and

justice."8 The act "authorizes the Supreme Court to issue writs of mandamus in cases

warranted by law, to any courts appointed, or persons holding office, under the authority of the

United States."9 In other words, a writ of mandamus is a court order, instructing a public

official to perform a specific duty.

With the case seemingly before the Court in an appropriate manner, Chief Justice Marshall

rendered an opinion that changed the course of American constitutional history and altered the

balance of power between the Court, the Executive, and Congress, and under the prevailing

political alignment, between the Federalists and Republicans. Marshall's opinion rested on three

simple legal questions:

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Has Marbury the right to the commission he demands?

If he has a right, and that right has been violated, do the laws of his country afford him a

remedy?

If the laws of this country do afford him a remedy, can a writ of mandamus be issued by

the Supreme Court?10

The answers to these three questions, particularly the dubious reasoning in reaching the

answer to the third question, reveals Marshall's strategic reading of the Constitution, and how

that reading created the power of judicial review.11

First, did Marbury have the right to the commission he demanded? Marshall quickly disposed of

Madison's argument that President Jefferson need not recognize the commission. Marshall

wrote, "[t]he discretion of the executive is to be exercised until the appointment has been

made,"12 regardless of weather a new president sits in office. The commission, having been

signed and sealed, was legally binding. Thus, Marshall declared, " a vested legal right is violated

by withholding the commission, and is therefore not warranted by law." In response to the

aforementioned first question many critics feel Marbury did have a legitimate claim to the

commission.

Given the assertion that Marbury had the right to his commission, the next logical question

was: Do the laws of this country afford him a remedy? The answer to this question was also a

simple yes. Marshall reasons that, "the very essence of civil liberty certainly consists in the right

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of every individual to claim the protection of the laws, whenever he receives an injury… If a

department head commits an illegal act under the color of his office by which an individual

sustains an injury, it cannot be pretended that his office exempts him from being sued..."13 Put

simply, Marshall concluded, "if there is a legal right, there is a legal remedy…"14 Here Marshall

laid out the problem clearly: Marbury has the right to his commission and the laws of this

county afford him a remedy.

Having answered the first two questions, Marshall asks, "Is [Marbury] entitled to the remedy for

which he applied?"15 To answer this question Marshall examined what powers are afforded to

the Supreme Court. The source of the Court's authority to issue writs of mandamus came

from Section 13 of the Judiciary Act of 1793. This provision seemed to grant the Supreme

Court the ability to issue writs of mandamus in any case, regardless of the type of jurisdiction

(original or appellate). The apparent intention of Congress was to give the Court a tool, a new

ability-- the authority to command public officials to perform. This would include cases of

original jurisdiction involving public ministers (i.e. "persons holding office, under the authority of

the United States"). The Constitution clearly states "the Supreme Court shall have original

jurisdiction in all cases affecting public ministers."16 Again, assuming the Secretary of State is a

public minister, the Supreme Court did have original jurisdiction. Using the Judiciary Act and

the Constitution, Marshall could have, and should have found on Marbury's behalf.

Marshall did not question whether Madison was a public minister under the terms of Article III.

Rather, Marshall analyzed the relationship between the Judiciary Act of 1789, writs of

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mandamus, and original jurisdiction. He reasoned that because the Constitution does not

explicitly include the authority to issue writs of mandamus in cases of original jurisdiction,

Congress had expanded original jurisdiction and, thereby, exceeded its authority in giving the

Court this power through a mere statute. It is a first principle of judicial interpretation that

statutes, laws enacted by Congress, are inferior to the Constitution, which is the supreme law

of the land.17 Using this principle, Marshal asked, " [can an] act repugnant to the Constitution

become the law of the land?"18 While attempting to answer this question, Marshall decreed

that only he and the Supreme Court have the ability to decide what laws are constitutional and

what laws are not. With the deceptively simple sentence, "if this court is not authorized to

issue a writ of mandamus to such an officer, it must be because the law is unconstitutional,"

John Marshall made a graceful leap for power, establishing the previously unknown practice of

judicial review. With these few words Marshal gave the Supreme Court the authority to set

limitations on both the Executive and the Legislature. From that point on, all actions of the

other branches were potentially subject to a constitutional seal of approval from the Supreme

Court. What makes Marshall's leap all the more impressive is that this authority cannot be

explicitly found in the language of the constitution.

Undoubtedly aware of this shortcoming, Marshall attempted to offer clauses in Constitution

where he thinks the framers intended the Supreme Court to have the power of judicial

review.19 Marshall cited Article III Section 2 of the Constitution, which states, "the judicial

power shall extend to all cases… arising under the Constitution."20 By invoking this clause,

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Marshall would have us believe the judicial power implies some extraordinary, if not explicitly,

defined authority in cases arising under the Constitution.

This interpretation is not persuasive. An equally plausible reading of "arising under the

constitution" could mean, for example, that the court could hear factual issues involving search

and seizure cases, to determine whether an individual's Fourth Amendment rights have been

abridged. This would involve a simple yes or no answer, but not necessarily the authority to

render a statue enacted by Congress and signed by the President as unconstitutional.

Perhaps the pivotal flaw in Marshal's logic was his transparent confusion of the types of cases in

which the court may constitutionally exercise original jurisdiction (i.e. cases involving public

ministers) with a judicial tool (i.e. writs of mandamus) that may be used in cases of original

jurisdiction. Marshall's argument amounts to the claim that the Supreme Court would have to

grant original jurisdiction to all cases involving writs of mandamus, when in actuality the

Judiciary Act simply gave him the ability to issue such writs in such cases.

Perhaps aware of the slender nature of his first justification, Marshall turned to other portions

of the Constitution in an attempt to support judicial review. Marshall notes that the Article VI

supremacy clause states, "the Constitution and all of the laws of the United States which shall

be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every

state shall be bound thereby, anything in the Constitution or law of any state of the contrary

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notwithstanding."21 The Supremacy Clause appears, at first glance, to provide authority for the

judiciary to determine when ordinary statutes are superseded by the Constitution. However,

on closer inspection the clause informs state judges, not federal judges, that the Constitution

and federal statutes are superior to state constitutions and statutes. It instructs state judges

that it is their duty to enforce federal laws above any contradicting state law. At best, the

Supremacy Clause implies that state judges may declare state laws unconstitutional when they

are not consistent with the Constitution.

Additionally, the phrase "in pursuance of the Constitution" may just as easily be interpreted to

mean a statute properly enacted, according to a constitutionally specified procedure (i.e. a bill

passed by Congress and signed be the President). Using this interpretation, the responsibility

for reviewing the constitutionality of federal law could rest with the President and Congress

that enacted the statute. Once the law is enacted, according to these constitutionally

prescribed procedures, judges would take it as given that any law "made in pursuance of the

Constitution" is valid. Except in an extraordinary circumstance that would raise questions of

whether the Congress or the President properly enacted and signed the law, the question of

whether the law violated some portion of the Constitution would not be open for the court's

examination. Even then, it is necessary to recall that the Supremacy Clause is directed to state,

not federal judges.

The simplest way to dispose of Marshall's Supremacy Clause gambit is to recognize that if state

judges could nullify federal acts, federal law would not be superior to state law, defeating the

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obvious purpose of the Supremacy Clause. Moreover, allowing state courts to determine the

constitutionality of federal law would create chaos. Federal law found constitutional in Texas

may be deemed unconstitutional in Oregon.

In apparent desperation to find support for his new-found authority, Marshall now turns to the

Constitution's Treason Clause. The Treason Clause provides, "No person shall be convicted of

treason unless on the testimony of two witnesses to the same overt act." Here, Chief Justice

Marshall asked, if Congress passed a statute that declared the testimony of only one person

sufficient to convict someone of treason, would the federal courts have to accept such a

statute? Surely not, Marshall asserted, for it is the particular duty of the courts to interpret the

laws and give effect to the superior law of the Constitution over mere statutory law.

While appealing at first glance, Marshall's reliance on the treason clause also fails under closer

scrutiny. The Treason Clause is one of the few clauses in the Constitution that is specific. No

reasonable person could argue that a statute permitting testimony of only one witness sufficient

to convict in a case of treason. This example demonstrates only that the Constitution is

superior to statutory law. It is ironic that Marshall resorted to using one of the very few explicit

clauses in the Constitution, to support the power of judicial review, which is not explicitly

found in the Constitution. In so doing, Marshall merely attempted to create the illusion that

judicial review is as explicitly written in the Constitution as treason.

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Marshall also claimed the Article VI oath, taken by all appointed judges, supported his argument

that it is the Supreme Court's duty to exercise the power of constitutional review (i.e., judicial

review), against the actions of the other coordinate branches of federal government. The

Article VI oath provides, that all judges "shall be bound by oath or affirmation to support this

Constitution."22 Marshall asks, wouldn't it be immoral to impose this constitutional oath on

judges and then expect them to uphold laws that they considered to be violating the

Constitution. Marshall's point here is clear, if judges are sworn to uphold the Constitution, they

must have the power to challenge unconstitutional legislation. What Marshall forgets to

mention is that the same oath is given to federal Senators, Representatives, Executive officers

and the members of several State Legislatures, Marshall clearly begged the question, of why it

should be the Supreme Court that has the authority to make this judgment. Would not either

house of Congress or the executive be capable of reaching the same conclusion regarding the

constitutionality of any law under their consideration?

Through all of his examples, Marshall still failed to find persuasive constitutional support for

judicial review. In the end, it seems Marshall not only consciously distorted the question of the

Court's jurisdiction but numerous other constitutional clauses as well.

John Marshall was a key player in the development of the new nation. In our nations history

political ideals [at this juncture] were no longer abstract. They were as vivid as ripples after a

stone was tossed into still water. Men such as Marshall were making history, creating legacies

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they knew would forever affect the new nation. Like Caesar, they played to win and they played

for keeps.

Marshall was able to bring judicial review into being because the Supreme Court's powers were

so obscurely defined in the Constitution. Marshall took advantage of this opportunity to

preserve Federalist influence in this nation's political affairs. In essence, Marshall was drawing on

a blank slate. Indeed, what he did was exercise judicial review to discover judicial review, a sort

of pulling himself up by his own bootstraps.

In addition, Marshall created a great power, and solidified his party's power base. He also

tactfully outmaneuvered the Republicans, Madison and President Adams, in what seemed a no-

win situation. Staring Marshall in the face was the very real possibility that Madison and Adams

would ignore an order to deliver the commission to Marbury. Both Madison and Marshall knew

if the commission was ignored, Marshall had no way of enforcing the order.23 The outcome

would result in Marshall and the court, forever being dammed to an insignificant role in

government.

On the surface, not awarding Marbury the commission appeared to be a victory for Madison

and the Republicans. If Madison had attempted to challenge the Supreme Court's decision he

would have looked foolish for challenging a ruling in which he was the victor. Once one begins

to peel away the layers of political mischief in this case, Marshall's true intentions are exposed.

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Marshall seized power by allowing Madison to keep the commission, while he simultaneously

thumbed his nose at the Republicans, leaving them with no ammunition for counter attack.

William Marbury was a sacrifice to avert a political collision between the judiciary and the

president.24

Marshall demonstrated his mastery of tactical politics by never again using the power of judicial

review. If Marshall had attempted to exercise judicial review a second time, he would have

jeopardized it. The Republicans would not have allowed it, which would result in the Supreme

Court being returned to its previous inconsequential position. At his funeral, his procession

called for the ringing of the Liberty Bell. When the bell was tolled, it split down one side as if to

remind us of the little known struggle for power that forever shaped our vision of the

American political process, a county that now, because of Marshall, had a third mighty branch of

government.

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