Making Our Democracy Work (4 page)

But had the counterattack come too late? To what extent did the Constitution protect the actions of an earlier Federalist-controlled Congress from later legislative change? President John Adams, a Federalist, sent that question on the road to resolution before leaving office. Acting almost immediately after the Federalist Congress (in mid-February 1801) passed its judiciary-strengthening laws, he began filling the new judicial vacancies by appointing the “midnight judges.”

In most instances, Adams successfully nominated and secured Senate confirmation of his new appointees before March, when his term expired. But he did not act quickly enough in the case of William Marbury, nominee for justice of the peace in the District of Columbia. On the evening of March 3, 1801, the day before Jefferson’s inauguration, Adams signed Marbury’s commission. He gave the commission to John Marshall, who had recently been appointed chief justice of the United States but had remained as secretary of state for a last few days. Marshall affixed the great seal to the commission. But in the last-minute hubbub, the commission was not actually delivered to Marbury. When Jefferson took office, he found the commission and refused to deliver it.
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That is how the great case of
Marbury v. Madison
began. Marbury
initially wrote to the new secretary of state, James Madison, asking what had happened to his commission. Madison ignored him. Marbury then considered suing Madison to force him to deliver the commission. But where should he bring that lawsuit? A state court might well have had reservations about getting involved in a dispute about a federal commission, and the Republicans had begun to “purge” state judges with Federalist sympathies. If he sued in a District of Columbia court, he would have to face a Republican chief judge (and, in any event, Congress had given lower federal courts like this authority to hear only a narrow category of cases that might not have included Marbury’s case, and Congress might have abolished the lower court in which he brought suit).

Marbury then found a federal statutory provision that apparently provided an answer. The statute said that the Supreme Court could “issue
 … writs of mandamus
, in cases warranted by the principles and usages of law,
to any
courts appointed, or
persons holding office
, under the authority of the United States.” Perfect—perhaps. A writ of mandamus was a legal order that compelled an officeholder to perform a routine task. James Madison was a person holding office under the authority of the United States. The delivery of a piece of paper, namely, the commission, was just such a routine task. And so Marbury filed a lawsuit directly in the Supreme Court, asking it to issue a writ of mandamus compelling the secretary of state to deliver his commission.
⁸

The court case highlighted the political, legal, and constitutional controversies of the day. Jefferson feared that his bitter political enemies, who included John Marshall, would force him to accept one of their Federalist appointees. He doubted that the Court could review the constitutionality of statutes; he hoped it lacked the power to review the validity of presidential actions as well. And he consequently told James Madison simply to ignore all the Court’s proceedings, not even to file a response.
⁹

As a result, Jefferson forced John Marshall and the Court onto the horns of a critical dilemma: On the one hand, if the Court held that the law did
not
entitle Marbury to his commission, it would radiate institutional weakness. It would fail to force an executive branch official to perform a purely routine act, thereby making clear that courts, and
perhaps the law itself, could not stand in the way of a determined president. On the other hand, if the Court held that the law
did
entitle Marbury to his commission, then Jefferson (who saw the judges as enemies and thought his own conduct exemplary) might continue to ignore the Court. By ignoring the Court’s decision, Jefferson would answer Hotspur’s question in the worst possible way. When the Court called, the president would not come. Whatever the Court might say, it would have failed to act effectively.

As it happened, Marshall, writing for a unanimous Court, brilliantly escaped the dilemma. The Court held that the law
did
entitle Marbury to his commission. And the opinion also adopted Hamilton’s theory of judicial review. Yet at the same time, the Court held that
Jefferson won the case
on constitutional grounds. Jefferson had no problem enforcing this decision—he simply continued to withhold Marbury’s commission. Thus the Court avoided the practical problem of enforceability.

H
OW DID THE
C
OURT
accomplish this legal feat—worthy of the Great Houdini? It began by posing the case’s ultimate question as follows: Should the Court issue a writ of mandamus directing the secretary of state to deliver to Marbury his commission? It then pointed out that Marbury had a legal right to a copy of the commission. A statute made clear that once appointed as justice of the peace, Marbury had a legal right to the position for a term of five years. And once the president signed Marbury’s commission, he was legally “appointed.” The acts of affixing a seal to the commission and recording it were routine, that is, “ministerial act[s],” which another statute specifically required the secretary of state to undertake. And, once Marbury showed he had satisfied these legal obligations, the secretary could no more refuse to give Marbury a copy of the commission than a recording officer today could refuse to give a copy of a public document to someone who requests it and pays the copying fee.

But the fact that Marbury has a legal right to the commission is not enough. Does the law give him the power to enforce that right, that is, does Marbury have a legal
remedy?
Again the Court answered yes,
and for reasons that are not entirely technical. The United States is a “government of laws, and not of men.” Under such a government, “where there is a legal right, there is also a legal remedy.” Indeed, the “very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”
¹⁰

The Court noted some exceptions to this rule, and they are important. In particular, a
“political act”
of the president (or one of his “political or confidential” executive branch “agents”) was not “examinable in a court.” But whether such an act escaped judicial review “must always depend on the nature of that act.” The political acts that a court could not examine were at the least acts where “the executive possesses a constitutional or legal discretion.” Here neither president nor secretary possessed discretion. Indeed, “the law in precise terms directs the performance of an act, in which an individual is interested.” If a specific duty was assigned by law and individual rights depended on the performance of that duty, then the person who considered himself injured must be able to “resort to the laws of his country for a remedy.”
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Still, not even the fact that Marbury had both a legal right and a legal remedy was sufficient. The Court still had to ask whether it had the power to grant Marbury that legal remedy. That is, did the law entitle Marbury to have the
Supreme Court
issue a writ of mandamus, that is, an order that would require a government official, namely, Madison, to deliver the commission to Marbury? Chief Justice Marshall quickly answered that the federal jurisdictional
statute
to which Marbury pointed—a statute that defined the kinds of cases the Court could hear and that seemed to offer the “perfect” jurisdictional solution—answered this question yes. The statute said that the Supreme Court may “issue
 … writs of mandamus
, in cases warranted by the principles and usages of law, to … persons holding office, under the authority of the United States.” Thus, Marshall concluded, the statute gave the Court jurisdiction to issue the writ that Marbury sought (mandamus) to the person responsible for giving the commission (Madison), as long as the issuance was “warranted by the principles and usages of law.” And the issuance arguably was warranted because courts have traditionally
issued writs of mandamus to compel government officers to carry out legally required ministerial duties such as delivering a document like the commission.
¹²

But the Court was still not finished. It went on to ask whether the Constitution allowed Congress to enact a statute like this, which grants the power to issue a writ of mandamus in Marbury’s favor. The Court’s answer made the case famous.

Recall that Marbury did not originally file his case in a lower court and then appeal the case to the Supreme Court. Rather, he originally filed the case in the Supreme Court itself. Now, here is Marshall’s tour de force: whatever that “perfect” statute might say, the Constitution itself says that

But this case did not affect ambassadors, public ministers (that is, representatives of foreign governments), or consuls. It was not a case in which a state was a party. Nor did it invoke the Court’s
appellate
jurisdiction. Hence, if the statute gave the Court the power to hear Marbury’s case as an
original
matter, the statute conflicted with the Constitution. Thus, the Court had to decide “
whether an act repugnant to the constitution can become the law of the land.
”
¹³

Chief Justice Marshall said this question was “deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest.” For one thing, the American Constitution, unlike the English constitution, was a
written
constitution. And an “act of the legislature repugnant” to that written Constitution must be “void.” Otherwise, the Constitution’s provisions would not be “fundamental,” “supreme,” and “permanent.” Otherwise, the Constitution would create a federal government of unlimited, not limited, power. By enforcing a law that is “entirely void,” the Court would grant the legislature legal and practical “omnipotence.”
¹⁴

The opinion next pointed out that resolving conflicts among different laws by determining, for example, which law prevailed was “the very essence of judicial duty.” Here is the heart of the matter: an invalid law could not bind the courts because it “is emphatically the province and duty of the judicial department to say what the law is.”
¹⁵
The Constitution is law and is our country’s supreme law, so the Court must follow the Constitution and override a conflicting statute if a case presents that conflict.

Finally, various provisions of the Constitution itself seemed to foresee that courts would have the power to authoritatively interpret and enforce the Constitution. Article III says that the “judicial Power” of the United States includes the power to decide cases “arising under” the “Constitution.” It also says that the government may not convict a person of treason on the testimony of only one witness. Article I says that states may not impose an export tax. And Article VI says that the Constitution “shall be the supreme Law of the Land” and provides that “all … judicial Officers … shall be bound by Oath … to support this Constitution.” (Congress had added that judges must promise to “discharge” all their duties “agreeably to the Constitution.”) Surely this meant that if a state (violating what the Constitution said) tried to prosecute someone who had failed to pay an export tax, a court ought not “close [its] eyes on the constitution, and only see” the tax. Nor, if the legislature should “declare one witness … sufficient for conviction” of treason, could a court be expected to allow “the constitutional principle [to] yield to the legislative act.” No, “this is too extravagant to be maintained.” In these instances and elsewhere, “the language of the constitution is addressed especially to the courts,” and, therefore, “it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.” Thus, Marshall reasoned, when an ordinary law conflicts with the Constitution, it is the Court’s duty to apply the Constitution, not the ordinary law.
¹⁶

The Court’s conclusion: The statutory provision that granted the Court the power to hear Marbury’s case as an original matter was unconstitutional, and so the Court could not give it effect. Therefore the Court could not hear the case (and it never did). As a result, it obviously
could not issue a writ of mandamus. Marbury lost. And Madison, in effect representing Jefferson, won.

M
ARSHALL’S LEGAL REASONING
was strong, although it is open to criticism, as are all opinions. A judicial opinion cannot logically prove that its result is correct; it can only explain the judge’s own reasons for having reached a particular conclusion, often in a case where much can be said on both sides. Still, one criticism is particularly striking. Numerous critics, including Thomas Jefferson, have pointed out that a court that lacks the legal power (that is, jurisdiction) to decide a case should not then go on to decide the merits of that case. How could Marshall, having ultimately found that the Court lacked the power to hear Marbury’s case, also have decided the merits of the case (that is, that Marbury was entitled to the mandamus even if the Court did not have jurisdiction to give it to him)?
¹⁷

One possible modern answer to the criticisms is this: Had Marshall simply followed the ordinary jurisdictional rule, jumping directly to, and exclusively discussing, the constitutional issues, critics at the time might have wondered whether he really had to decide the great constitutional question of judicial review. They could reasonably have asked whether Marshall had reached out
unnecessarily
, that is, for political reasons, to claim that power for the Court.