Friday, March 1, 2013 – Essay #10 – Marbury vs. Madison by John Marshall – Guest Essayist: Steven H. Aden, Senior Counsel and Vice President of the Center for Life at Alliance Defending Freedom

“It is emphatically the province and duty of the judicial department to say what the law is.” With those understated words, Supreme Court Chief Justice John Marshall ushered in the modern era of judicial review – the notion that it is up to judges, not legislators or presidents, to finally interpret and give meaning to the nation’s Constitution and laws.

During the founding era, Alexander Hamilton had written Federalist 78, to assure those wary of a strong federal judiciary that “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution,” because it holds neither the power of the sword, as the Executive (Presidential) Branch does, nor the power of the purse strings, as the Legislative Branch (Congress) does. “It may truly be said to have neither force nor will,” Hamilton said, “but merely judgment.”

The first real test of that judgment came in the form of the new nation’s first constitutional crisis at the close of the century, just fifteen years after the ratification of the Constitution.  Fifty-eight Federalists – those in favor of a strong central government for America –  including the named plaintiff in the case, William Marbury, had been nominated by outgoing President John Adams to judicial posts, and upon the requisite “advice and consent” of the Senate they were confirmed.  Incoming Anti-Federalist President Thomas Jefferson ordered his acting Secretary of State not to deliver their commissions, and when James Madison took the office of Secretary of State, he followed suit, perhaps a bit too zealously – no one seemed to be able to tell the Justices where the commission papers were.

The Court waded into this dispute warily.  First, Chief Justice Marshall observed, Marbury was clearly entitled to the commission, since the appointment was operative upon the President’s signature and seal with the consent of the Senate; delivery of the commission papers was unnecessary.  There was a wrong, but was there a remedy, even against an agent of the President?  Yes, Justice Marshall affirmed; “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.” The Court would echo the principle that “No one is above the law” two hundred years later in Paula Jones v William J Clinton, by holding that the President himself had to answer charges of sexual harassment brought against him by a lowly file clerk.

Having troubled the waters of the relationship between the three powers in the new Republic, the Court now moved to cast oil upon them.  The federal statute that purported to give the Supreme Court jurisdiction to issue a “writ of mandamus” to compel the Secretary of State to perform a function of his office could not comport with the Constitution, said Chief Justice Marshall.  Article III, Section 2 of that document granted the Supreme Court jurisdiction over cases involving public ministers only in cases of original jurisdiction.  Since Marbury’s claim for mandamus was a case of appellate jurisdiction – meaning it came up from the lower courts, and didn’t originate in the High Court – the Constitution precluded Congress from giving the Court jurisdiction over it.  Thus, the Supreme Court was powerless to act in the case.

Depending upon your political views on the role of the Judiciary in the system of separate but co-equal branches of government the Framers established, Marbury v. Madison was either the signal and greatest power grab in the history of American politics or a brilliant moment in political theory that has endowed the country with untold benefits, not the least of which is the salutary blessing of a robust judicial review.  Certainly, as it is often said, the truth lies somewhere in between; but it may also be that the truth in this case is simpler and less complicated than politics.  At the end of the day, someone has to have the last say on every matter, including the meaning of the Constitution.  That someone, Chief Justice Marshall said in Marbury, is federal judges, and ultimately the Supreme Court.  “The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest.  It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.”

In the end, William Marbury, and the other fifty-seven Federalists John Adams commissioned, did not get their writ of mandamus.  But the American Experiment in coequal powers of government endured its first, and probably most important, crisis.  The Supreme Court didn’t say in Marbury that it was the only Branch entitled to interpret the Constitution and laws of the United States, just that it was the special responsibility of the Judiciary to act as the final arbiter on such questions.  And by demurring on the ultimate question of the Judiciary’s direct authority to order the Executive to do something, the Court husbanded the political capital it had secured for itself through its ruling that the Judiciary was the primary interpretive authority under the constitutional scheme. “Judgment,” indeed, as Hamilton had promised.

Read Marbury v. Madison by John Marshall here: http://www.constitutingamerica.org/blog/?p=3371

Steven H. Aden serves as Senior Counsel and Vice President of the Center for Life at Alliance Defending Freedom www.alliancedefendingfreedom.org

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10 Responses to “Friday, March 1, 2013 – Essay #10 – Marbury vs. Madison by John Marshall – Guest Essayist: Steven H. Aden, Senior Counsel and Vice President of the Center for Life at Alliance Defending Freedom”

  1. Dave says:

    Mr. Aden, thank you for sharing your thoughts on Marbury v. Madison.

    “Judgment,” yeah right. I’ll attribute Hamilton’s blunder to his youth and his ill-considered optimism in the consolidating of political and economic power in a centralized national government. In his autobiography, Jefferson has Adams (I think) understanding our nature a little more deeply: “Reason [judgment?], justice, & equity never had weight enough on the face of the earth to govern the councils of men [Supreme Court Justices?]. It is interest alone which does it, and it is interest alone which can be trusted.”

    Jefferson, in 1825, wrote to William Branch Giles expressing his fears for how things were playing out under the Constitution: “I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of our government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic; and that, too, by constructions which, if legitimate, leave no limits to their power.” [N. B. This was the same William Giles who offered this advise to members of Congress: “[they] should not attend to what . . . generosity and humanity required, but what the Constitution and their duty required.”

    At the time of ratification the Anti-federalists were worried that a federal supreme court would, over time, construe the Constitution to enlarge the power of the general government to the detriment of the states and the individual citizens. Judge Robert Yates writing under the name, “Brutus,” had this to say: “This power in the judicial will enable them to mould the government into almost any shape they please.” You want a far-reaching administrative welfare state? SCOTUS will be happy to oblige. You want a far-reaching regulatory state to centrally plan all economic activity? SCOTUS will be happy to oblige? You want an unelected, unaccountable merry band of bureaucrats to have the power of legislators? SCOTUS will be happy to oblige.

    Least dangerous branch? Hardly! Dred Scott, Plessy, U. S. v. Butler, Helvering v. Davis, Wickard v. Filburn, Korematsu, Kelo, and the piece de resistance, ObamaCare.

    Will we ever get to the point where we can admit that the fears of the Anti-federalists were well-founded and their judgment concerning many aspects of the new constitution was right?

    BRUTUS

    P. S. I’ll admit, I’m still hurting from Chief Justice Roberts’s betrayal in the ObamaCare case.

    • yguy says:

      Least dangerous branch? Hardly!

      If I may be permitted to wax Stalinesque for a brief moment, how many divisions does the Judiciary have?

      • Dave says:

        If I may wax hyperbolic: Without a single division and without firing a single shot the Supreme Court gave the go-ahead to round up all Americans and herd them into the Ukrainian famine zone that is ObamaCare. With 20/20 hindsight we of course can appreciate the quip of Stalin—“The Pope? How many divisions has he got?” Stalin’s Soviet Russia imploded and the Pope’s Catholic Church still has a global membership of about 1.2 billion adherents.

        Indeed, your comment does highlight for us the insidious process by which we are losing our prosperity, our liberty, and even our dignity as rational and responsible human beings. We are witnessing without recognizing it the fashioning of the shackles of our own bondage. Americans, for whatever reason, have failed to appreciate the precarious state of our republic . . . and no divisions in sight.

        A Kipling reminder:

        When all men are paid for existing and no man must pay for his sins,
        As surely as Water will wet us, as surely as Fire will burn,
        The Gods of the Copybook Headings with terror and slaughter return!

        • yguy says:

          Stalin’s Soviet Russia imploded and the Pope’s Catholic Church still has a global membership of about 1.2 billion adherents.

          The Pope’s earthly authority derives from those adherents collectively, who, AFAIK, have not seen fit to demand any formal check on his power. By contrast, besides the formal checks on the Judiciary available to the other branches, and the unavailability of such countermeasures to the Judiciary, it is, as Hamilton observed, “ultimately depend[ent] upon the aid of the executive arm even for the efficacy of its judgments.” This is of no consequence in cases like Wickard where it serves to provide cover for the nefarious designs of the other branches, but otherwise no one under a constitutional oath is either required or empowered to abide by any unconstitutional court ruling.

  2. yguy says:

    The Supreme Court didn’t say in Marbury that it was the only Branch entitled to interpret the Constitution and laws of the United States, just that it was the special responsibility of the Judiciary to act as the final arbiter on such questions.

    I am at a loss to understand why the latter conclusion is less maleficent than the former, seeing either effectively affirms the power of five unelected people to amend the Constitution.

    Aside from the judicial review question, another problem with Marbury that most people seem to be unaware of is that it misquotes the exceptions clause, which makes its logic relating to that provision incomprehensible.

    • Dave says:

      Howdy yguy, I’m not sure what you mean by “which makes its logic relating to that provision incomprehensible.” But, thanks for bringing up the exceptions clause of Art. III, Sec. 2. I wouldn’t characterize Marshall as misquoting the exceptions clause; I would characterize him as not quoting it at all. Why wouldn’t he have added the few words it would have required to reproduce paragraph 2 of section 2 in its entirety? Maybe he didn’t want to reinforce the idea that Congress, at any time, could limit or completely deny the Supreme Court appellate jurisdiction. Could Congress do that? If they could, and did; I wonder how that would play out. Would it make a big difference?

      • yguy says:

        Howdy yguy, I’m not sure what you mean by “which makes its logic relating to that provision incomprehensible.”

        The logic is based on a misrepresentation of a constitutional provision, so how can it be comprehensible?

        But, thanks for bringing up the exceptions clause of Art. III, Sec. 2. I wouldn’t characterize Marshall as misquoting the exceptions clause; I would characterize him as not quoting it at all.

        I suppose I should have said “appellate jurisdiction clause”.

        Why wouldn’t he have added the few words it would have required to reproduce paragraph 2 of section 2 in its entirety?

        He didn’t just omit those words, he replaced the comma with a period. One might as well quote the 5A due process clause and omit “without due process of law”. He then went on to paraphrase the omitted phrase without attribution.

        Maybe he didn’t want to reinforce the idea that Congress, at any time, could limit or completely deny the Supreme Court appellate jurisdiction. Could Congress do that?

        I don’t see why not, since that would not seem to run afoul of the letter of the judicial power clause…

        …but then I also don’t see why that clause doesn’t empower Congress to expand the original jurisdiction of the SC beyond that specified in the original jurisdiction clause, so maybe I’m not the guy to ask.

      • Ralph Howarth says:

        Dave,

        Congress DID at one time limit the appellate jurisdiction of the SCOTUS during the Civil War by barring the court from hearing any cases pertaining to Habeas Corpus.

        As for yguy supposition that SCOTUS may have original jurisdiction in cases (cases that hear both law and fact) beyond the listing of the constitutional grant may very well be true; but in reality is not very practical due to the size of the country and the heavy case loads already on docket. The reverse would seem more likely that Congress ought to create panels of adjunct petit courts that handle original jurisdiction cases for the SCOTUS that may then be of necessity heard by the high court.

        An aside: it is commonly said that the three branches are co-equal. But as James Madison said in Federalist 51 “In Republican Government, the Legislative Authority Necessary Predominates.” And the federal constitution states in A. 4. S 4. “The United States shall guarantee to every State in this Union a Republican Form of Government.” Such a stance holds that all legislatures in the entire union are required to be stronger than the corresponding courts. And no wonder as Congress has far more checks against the SCOTUS:

        Impeachment to the removal of justices
        Appointment confirmation to the installing of justices
        Power of the purse–expressly deny funds for what kind of cases SCOTUS or any federal court may hear. This is an implicit deny
        Appellate court jurisdiction: block what kind of cases the SCOTUS may here. this is an explicit deny.
        Regulate lower courts and structure of petit courts and which courts handle what type of cases.
        Statutory law: When SCOTUS, or any federal courts, take on conflated amounts of case loads due to ambiguities concerning the law, as a function of cutting court costs Congress simply enacts more clarifying laws to help cut down on case loads. This is especially true with the federal court role of arbitration of disputes among states where Congress does not have expressed constitutional grant of power to interpose. Instead, Congress establishes procedures for arbitration to hopefully stave off overrun court costs. As for the whole issue of whether or not any court including the SCOTUS has the final say concerning interpretation of law and the constitution the following few principals of government ought to predominate:

        1) The Rule of Law says that no king, ruler, or lawmaker can overturn a court decision between one party exacting reparations from another party. The court simply decides whether or not a respondent will suffer harm from the suit of law. After that, the court simply gives its OPINION why they gave such a judgment. BUT the Rule of the Republic says that the legislature can assure that the court never ever makes that decision again!
        2) Is is an injustice to citizens of a republic to make laws too hard to understand. Citizens and public officers are entitled to know the laws that affect themselves…not a high court.

        • Ralph Howarth says:

          One caveat to what I said: if the federal courts limited its case load to strictly constitutional jurisdiction: what pertains to federal law; arbitration among states; cases where the right to due process (defend yourself in court) procedural law is violated; or cases where equal protection (right to sue somebody for wrongs) is in question, then the case load even for the SCOTUS would be lower. In that respect, then cases of original jurisdiction within SCOTUS would have more room. Right now the federal court system has co-opted the questioning of state laws beyond just procedural, court room issues of due process and equal protection by the Substantive Due Process doctrine. If the federal court system would come down from its frenzy of questioning states laws that have nothing to do with the federal constitutional grants, then there would be less of a load on the federal court system.

  3. Ralph T. Howarth, Jr. says:

    I have become aware of a particular nuance often missed in this case. 1st) I have heard that this was a case where it came up on an appeal…but where is the court of origination? 2nd) C Justice Marshall’s whole premise is on the meaning of the statutory law’s mandate from Congress that an appellate instrument such as a Writ of Mandamus would be issued from the Supreme Court as a court of origination. Marshall’s contention is how can something that is appellate procedural in nature be issued from a court of origination of a controversy? The whole purpose of a Writ of Mandamus is for a higher court jurisdiction to instruct a lower court or office to honor what was not honored. When a higher court does so then the controversy is said to be “remanded’. In layman’s terms, it is a do over and can mean a retrial depending on the scope of the remand. As a Writ of Mandamus is an order of a do over, how can one order a “do over” for what has not even been done? is Marshall’s argument. This is like Congress out of ignorance passes a law that both adds a right and takes away that same right in the same sentence much like confusing product warranty language that both equivocally grants and limits coverage against loss. What is a judge supposed to do? 3rd) Marshall discharged the Writ of Mandamus without naming where the correct jurisdiction exists for a redress of the plaintiff’s grievance…because Congress effectively made it so that there is none. Marshall put the hot potato back on Congress to fix. 4th) For all the talk about Marshal creating judicial supremacy there is one big flaw about such a premise: Marshall used not only the Constitution to make his decision; but he used external reference to a legal term not even found in the Constitution–Writ of Mandamus. That legal term comes from the Common Law and Marshall used it as sacrosanct jurisprudence. If judicial supremacy were true, then is it lawful for a judge to redefine, say, Writ of Mandamus?–No.

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