Partisan
Wrangling over the Courts
Most lawyers know the
background to Marbury v Madison, 5 U.S. (1 Cranch)
137 (1803). The House of Representatives chose the
president after the bitterly contested election of 1800
between John Adams and Thomas Jefferson. The Adams administration
tried to pack the federal courts as it left office.
They hurriedly prepared, signed, sealed, and delivered
judicial commissions. John Marshall, on his way out
as secretary of state but on his way in as Chief Justice,
signed the commissions. Some commissions were not delivered
before Adams' term expired.
Jefferson refused to deliver
these commissions. William Marbury, an Adams appointee
to a justice of the peace position, filed a writ of
mandamus in the Supreme Court to force James Madison,
Jefferson's secretary of state, to deliver Marbury's
commission. Madison refused to accept service or attend
the hearing. The Jefferson-controlled Congress canceled
the 1802 Supreme Court term to prevent the Court from
hearing Marbury's case.
Judicial Statesmanship
Chief Justice John Marshall's
opinion in Marbury declined jurisdiction by first
asserting a greater power: the power of federal courts
to declare actions of the other federal branches unconstitutional.
Although the idea of judicial review had been around
since the 1600's and was widely accepted in the United
States, Marshall's opinion is the first to squarely
face the question.
Modern-day cynics see
Marshall's opinion as an example of political manipulation
of the law. But politics is in the eye of the beholder.
Marshall's method is as important as his conclusion.
His analysis demonstrates how the rule of law operates
under our constitution.
The Importance of Chief Justice
John Marshall
John Marshall reasoned
to his conclusion from a powerful vision of the Constitution
and the rule of law that we take for granted today.
Marbury established that courts, not the political
branches, are in the best position to guarantee that
law is the final authority over individuals.
Marshall's opinion meditated
on the nature of power in a constitutional democracy.
Marshall grounded his constitutional vision in a fundamental
principle: only the people are sovereign and they govern
through law.
The strength of Marshall's
vision enables us to celebrate the 200th anniversary
of this opinion. The alternative vision a weak
national government, a constitution at the whim of transient
partisan politics, and a judiciary incapable or unwilling
to protect individual rights in the face of raw political
power would not have lasted so long. In fact,
we tested that alternative vision in the years leading
up to the Civil War and found it wanting.
We Are a Government of Laws
Marshall considered whether
or not Marbury
was entitled to his commission.
Marshall held that the
commission vested at the time it was signed and sealed
(by John Marshall!) and that delivery was incidental.
Marshall said that the
essence of liberty is the ability of an individual to
use the law to right a wrong. Even the King of England
can be sued, suggesting that Jefferson would have to
be more than a King to be immune from suit. Marshall
then delivered these words: "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."
Even Presidents Must Obey the
Law
Marshall reached constitutional
bedrock: Law has taken the place of the King in the
United States. The law is the first and final source
of power and authority. Everyone, including Presidents,
must obey the law. More importantly, governmental actors
derive their authority from law. Even "political"
duties are defined by their constitutional delegations
of power. Acts are political because they involve the
welfare of the nation and if the executive officer received
his authority from the constitution. They are not political
because the person declares them so.
Right Defendant, Wrong Court
All that was left was
to give Marbury his remedy: a writ of mandamus ordering
Secretary of State Madison to deliver the commission.
Marbury invoked the Supreme Court's original jurisdiction.
Marshall said: "[I]f this court is not authorized
to issue a writ of mandamus to such an officer, it must
be because the law [giving this court jurisdiction]
is unconstitutional, and therefore absolutely incapable
of conferring the authority, and assigning the duties
which its words purport to confer and assign. In other
words, Madison may be the right defendant but the Supreme
Court may be the wrong court. If presidents are bound
by the rule of law, so too are courts.
Marshall's jurisdiction
analysis relied almost entirely on the structure of
the Constitution and not its text or history. Marshall
began by asserting that Article III assigns jurisdiction
to the federal courts and that Congress cannot add to
it. Marbury would get his mandamus only if the Constitution
allowed the Supreme Court to take original jurisdiction
of mandamus actions. But Article III did not give the
Supreme Court original jurisdiction over actions like
Marbury's.
Marbury invoked the Judiciary
Act of 1789 as authority for the Supreme Court's jurisdiction.
Marshall responded by saying that under these circumstances
"it becomes necessary to inquire whether a jurisdiction
so conferred can be exercised." Marshall placed
all three branches of the federal government under the
rule of law. The president cannot ignore the law for
political gain, the courts must conform to the constitutional
grant of jurisdiction, and the Congress cannot give
courts more jurisdiction than the constitution prescribes.
The Whole American Fabric
Marshall meditated on
the meaning of a written constitution. For him, the
Constitution was the foundational document of the American
way of life: "That the people have an original
right to establish, for their future government, such
principles as ... shall most conduce to their own happiness
is the basis on which the whole American fabric has
been erected" (emphasis added).
Creating a way of life
is so important that it should not be done very often
and it should last forever: "[It] is a very great
exertion; nor can it, nor ought it, to be frequently
repeated. The principles, therefore, so established,
are deemed fundamental. And as the authority from which
they proceed is supreme, and can seldom act, they are
designed to be permanent."
For Marshall, the Constitution
created a federal government designed to outlive the
temporary political situation that brought it into being.
In this scheme, judicial review is a necessary inference
from a written constitution. Marshall asserted that
a constitution that limited governmental powers would
be meaningless if its limitations could not be enforced.
More important, however, a government that did not follow
the constitutional limitations would break faith with
the fundamental precept of the rule of law: "The
constitution is either a superior paramount law, unchangeable
by ordinary means, or it is on a level with ordinary
legislative acts, and, like other acts, is alterable
when the legislature shall please to alter it."
The Constitution as Paramount
Law
Judicial review flowed
naturally from these propositions. If the Constitution
is the paramount law, Congress must follow the paramount
law. If the courts must interpret law, then federal
courts must have the power to decide if Congress has
followed the Constitution. Deciding which law applies
when two conflict "is the very essence of judicial
duty. If ... 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 ... who controvert the principle [that the constitution
is paramount law] are reduced to the necessity of maintaining
that the courts must close their eyes on the constitution."
A Practical and Real Omnipotence
Although Marshall did
not say so expressly, despotism would follow if popularly
elected legislatures could ignore fundamental principles
in favor of political expediency. He hinted at this
when he said that the absence of judicial review "would
subvert the very foundation of all written constitutions
... It would be giving to the legislature a practical
and real omnipotence, with the same breath which
professes to restrict their power within narrow limits"
(emphasis added).
Marshall never strayed
far from his original proposition: the people are sovereign
through law. We have no omnipotent king. Only the people
are omnipotent. They have exercised their fundamental
power by creating a constitution that expressly limits
governmental power. The constitution should be interpreted
to guarantee that no person or institution of government
ever usurps the people's ultimate power. He concluded
that the Court could not exercise original jurisdiction
over Marbury's claim because the Congressional act establishing
such jurisdiction was unconstitutional.
The Three M's: Marbury, Martin,
and McCulloch
Marshall and his Court
elaborated on these themes in later cases. The concept
of the Constitution as paramount law made possible Martin
v Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816),
where the Supreme Court held that it could review state
court decisions. The Court held that without such review
there would be as many constitutions as there were states,
eliminating the constitution as the paramount law. The
people's sovereignty framed McCulloch v Maryland,
17 U.S. (4 Wheat.) 316 (1819), where Marshall upheld
the exercise of federal power in the face of state claims
to ignore federal laws not to their liking. He established
that the people created the Constitution and therefore,
the people, not the states, retain the sole power to
dissolve the union. Taken together, Marbury, Martin,
and McCulloch established a permanent constitution
that created a powerful national government with a Supreme
Court ready to enforce the rule of law.
Marshall's Legacy and the Civil
War
Marshall died believing
he was a failure. Marbury was the only case in
which Marshall declared an act of Congress unconstitutional
and McCulloch showed that Marshall did not intend
judicial review to weaken national power exercised within
constitutional bounds. Slave states understood the message:
Congress could, if it had the political will, outlaw
slavery and the Supreme Court would not interfere. This
created the warped version of states' rights that fueled
southern resistance prior to the civil war and reared
its ugly head in the South during the Civil Rights Era.
Andrew Jackson, an implacable
foe of Marshall, replaced him on the Supreme Court with
a loyal member of Jackson's party, Roger Taney. In the
infamous case of Dred Scott v. Sanford, Taney
struck a federal law for the first time since Marbury.
Taney's opinion held that freed slaves could never become
citizens and that Congress had no power to create slavery-free
territories. This decision made political or legal resolutions
of slavery impossible and precipitated the Civil War.
Taney's constitutional
vision was the opposite of Marshall's. Taney's constitution
cared little about individual rights, little about the
permanence of the federal system, and little about the
rule of law. Taney's analytical method parodied Marshall's.
Under the guise of fidelity to the Constitution, Taney
enshrined racism and injustice. Where Marshall articulated
a constitutional vision that built the country up and
fortified it for the centuries, Taney trivialized the
document and destined the country for conflict and dissolution.
In the end, Marshall's
constitution prevailed. We have become what Marshall
envisioned: a sovereign people governed by law. Marshall
taught us to take the Constitution seriously. We care
who serves on federal courts and what they decide because
we must keep faith with the "great exertion"
of the framers and preserve the constitution for the
ages. We rest on the foundation that Marshall laid down
200 years ago in Marbury v. Madison. • |
