“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.
Friday, March 1, 2013 – Essay #10
Read Marbury v. Madison by John Marshall here: https://constitutingamerica.org/?p=3371
Steven H. Aden serves as Senior Counsel and Vice President of the Center for Life at Alliance Defending Freedom www.alliancedefendingfreedom.org