Marbury v. Madison
In which Chief Justice Marshall pulls a fast one
Article III of the Constitution creates the federal court system. It requires the actual existence of only one federal court: the Supreme Court. Section 1 provides that the “judicial Power of the United States, shall be vested in one supreme Court … .” It then adds, “and in such inferior Courts as the Congress may from time to time ordain and establish.” So the Constitution does not mandate the existence of any judiciary beyond the Supreme Court itself. Instead, the creation of all federal “inferior courts” is left entirely to the discretion of Congress.
Just as Article I makes Congress a legislature of enumerated powers only, in contrast to state legislatures which may legislate generally for the health, safety, and welfare, Article III establishes federal courts as courts of limited jurisdiction, unlike state courts that exercise general jurisdiction. The differing subject matter jurisdictions of state and federal courts results in a counter-intuitive mismatch in which state courts have jurisdiction over cases arising under federal law but federal courts do not have jurisdiction to hear cases under state law, except in special delineated cases bearing on particular federal concerns.
Generally, federal courts have jurisdiction over listed “cases” and “controversies.” This restriction to cases and controversies is the central structural feature which distinguishes courts from legislatures. Legislatures may legislate on any question that they wish, so long as it is within the substantive scope of their powers. Courts on the other hand are limited to answering questions that are brought to them as real disputes. This is the origin of the “standing” doctrine, which requires that a plaintiff bringing a lawsuit have an actual injury caused by the person against whom they bring the suit.
The subject matter jurisdictions of federal courts extends to:
all Cases, in Law and Equity,
arising under the Constitution, the laws of the United States, and treaties made, or which will be made, under their authority
affecting ambassadors, and other public ministers and consuls
of admiralty and maritime jurisdiction
Controversies
to which the United States is a party
between two or more states
between a state and citizens of another state
between citizens of different states
between citizens of the same state claiming lands under grants of different states
between a state, or its citizens, and foreign states, citizens or subjects
The Supreme Court, however, has “original” jurisdiction only over those cases affecting ambassadors, and other ministers or consuls, or in which a state is a party. Original jurisdiction means that a litigant can initiate a lawsuit directly in that court, and the court will hear the case for the first time. All other cases over which federal courts have jurisdiction may only reach the Supreme Court on appeal from an inferior court, “with such Exceptions, and under such Regulations as the Congress shall make.”1
Scour the text of Article III all you like, however, you will not find the authority for which the federal judiciary is most famous today, the power of judicial review. Rather, the Supreme Court boot-strapped itself into the roll of ultimate arbiter of constitutional meaning, starting in an 1803 case called Marbury v. Madison.
Marbury’s writ
As I discussed in my last post, Marbury arose out of the controversy over the so-called midnight judges. On the eve of the final day of his presidency, President Adams had signed the commissions of new federal judges who were, on the whole, partial to his political party, the Federalists. The incoming Jefferson Administration, belonging to the opposition “Republican”2 Party, was none too eager to deliver the commissions, without which the judicial officers in question could not take their offices.
Once he became president, Jefferson directed his secretary of state, James Madison, not to deliver the commissions. In response, Marbury, one of the midnight judges denied his commission, filed for a writ of mandamus3 directly in the Supreme Court seeking to force the secretary of state to deliver his commission.
You might well wonder at the audacity of Marbury, filing a case directly in the Supreme Court of the United States of America, since his cause did not affect an ambassador, minister,4 or consul, nor was a state a party to his writ. But, interestingly, the Judiciary Act of 1789, after paraphrasing the text of Art. III’s Supreme Court original jurisdictions provision, added that the high court could issue “writs of mandamus, in cases warranted by principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”
By invoking the original jurisdiction of the Supreme Court to issue a writ of mandamus under the Judiciary Act of 1789, Marbury no doubt considered himself tremendously clever. This was some 4D chess, since the brand new chief justice of the Supreme Court was none other than John Marshall, lately secretary of state under the Adams Administration, whose job it had been to deliver the commissions in the first place. Surely, Chief Justice Marshall was in the bag for Marbury.
The chief justice, however, had to proceed with caution. The Supreme Court was by far the weakest of the branches of government established by the Constitution. Not only was it only mentioned third of the three in the document itself, but the judiciary lacked Congress’s power of the purse and the President’s authority as commander-in-chief to enforce compliance with its rulings. All the federal judiciary had (and has) to back up its rulings was the persuasiveness of its reasoning. If Marshall provoked a confrontation with the powerful executive branch, he could loose spectacularly when Jefferson simply chose to ignore the court’s order.
Yet Marshall could not back down, either. All was on the line and the Federalists’ backs were against the wall. They had been ousted from elected office and thoroughly repudiated by the election of 1800. Their last redoubt was the federal judiciary. If Marshall could not defend the midnight judges and thereby vindicate the authority of the judiciary, the Federalists would be rendered impotent.
Professor White writes that “[s]een in the context of the political conflicts of the time,” Marbury v. Madison “appeared to be a direct confrontation between the Court, composed of Federalist appointees, and the Jefferson Administration.” Jefferson took the position that he could effectively nullify the judgeships of the midnight judges despite their proper nomination, confirmation, and commissioning, simply by not delivering the commissions that had been executed by his predecessor. Marbury was asking the Supreme Court to order Jefferson to do so (through his secretary of state, James Madison).
Finally hearing the case in 1803, Chief Justice Marshall identified three questions presented (“QPs” as SCOTUS nerds like to say):
Whether Marbury had a right to the commission.
If so, whether he was entitled to a remedy by law.
Whether that remedy was a writ of mandamus from the Supreme Court.
Marshall first held that Marbury had a right to the commission. The appointment of Marbury had been complete when Adams signed the commissions and the secretary of state (Marshall himself) had affixed the official seal of the United States on the document. Delivery of the commission was not necessary to vest the judgeship. Furthermore, since Marbury was legally entitled to his commission, Jefferson’s refusal to hand it over was illegal.
On the question of remedy, however, Jefferson argued that his decision not to deliver the commissions was a political calculation and not subject to judicial oversight. Marshall readily conceded that “[b]y the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is only accountable to the country in his political character.”
But, Marshall countered, the delivery of a commission, to which the recipient had a vested legal right, was not such a discretionary political question. Rather, in this context, the president was an “officer of the law, … amenable to the law for his conduct.” Consequently, Marbury was entitled to a legal remedy against the president for the violation of his legal right. Furthermore, since the whole point of a writ of mandamus was to compel an executive officer to take an official action over which he had no legal discretion, a writ of mandamus was precisely the correct remedy at law for Marbury.
The switcheroo
It was at this point that Marshall injected another question into the case: whether the Supreme Court had jurisdiction to issue such a writ on Marbury’s behalf. As we have seen, the Judiciary Act of 1789 authorized the high court to issue “writs of mandamus, in cases warranted by principles and usages of law.” But Marshall looked back to Article III of the Constitution, which limits the original jurisdiction of the Supreme Court to cases involving ambassadors, ministers, and consuls, and those in which a state is a party. Marbury v. Madison involved no such parties.
Thus, as Marshall framed the case, Congress had tried to expand the original jurisdiction of the Supreme Court provided in Art. III through a statute that purported to give the court authority to issue writs of mandamus. There was a conflict between two laws, the Constitution and the Judiciary Act of 1789. When a case was governed by two different laws which did not agree, it was fundamentally the job of the court to decide which law trumped the other. Or as Marshall put it:
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
Laws are not all equal. On the contrary, they are ranked hierarchically based on the source of their authority. In a government such as ours, which is entirely “constituted” by a written Constitution adopted by the ultimate sovereign, the people themselves, all other legal authorities are necessarily subsidiary. The Constitution is the “fundamental and paramount law of the nation.” Marshall reasoned that “[i]t is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.”
Since the Judiciary Act had purported to expand the original jurisdiction of the Supreme Court beyond what was permitted in the Constitution, the chief justice argued, that part of the law was ineffective. Marshall wrote that a “law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.” Consequently, even though Jefferson had violated Marbury’s right and Marbury was entitled by law to a writ of mandamus, the Supreme Court of the United States of America was at a loss to provide him one.
Although Marshall had left the midnight judges high and dry, at least for the time being, his ruling was strategically brilliant in terms of his institutional war with the Republicans. In Marbury v. Madison, Marshall “indirectly asserted the Court’s role in overseeing the Constitution without the serious political repercussions that would have followed from a head-on collision with the Republicans,” explains Gordon Wood. The chief justice had had his cake and eaten it too.
The Supreme Court thus established its authority to oversee the actions of the executive branch and also its power to strike down Acts of Congress, but in a way that rendered Jefferson unable to say boo about it. What was Jefferson going to do, disagree that the court lacked jurisdiction to order him to deliver Marbury’s writ?
The power established in Marbury of the judiciary to invalidate acts of other branches that it deems unconstitutional, later known as judicial review, is the most notable aspect of the case from the modern perspective. But the concept was not novel at the time, nor was it that the aspect of the case that drew the most attention at the time.
Rather, Marshall’s assertion of authority to direct the conduct of executive officers by a writ of mandamus seemed to contemporaries to be a violation of separation of powers. The “attempt of the Supreme Court of the United States, by a mandamus, to control the Executive” was “no less than a commencement of war between the constituted departments,” one newspaper wrote at the time.
Of course, it did not result in a war between the branches of government. The court did not actually issue such a writ for Marbury, because Marshall found that the court lacked jurisdiction. But that dynamic was also troubling, because it appeared to render that entire aspect of the case “advisory,” meaning that it did not have any relevance to resolving the case. Another newspaper described the decision as “extra-judicial” because the court “decided upon the merits a cause without jurisdiction to entertain it,” which was “contrary to all law, precedent, and principle.”
On the other hand, writes Professor White, “[t]here was comparatively little contemporary discussion” of Marshall’s exercise of judicial review to strike down a portion of the Judiciary Act of 1789. Nor did Marshall ever purport to declare an Act of Congress unconstitutional again. The high court would not do so again until 1857 in Dred Scott v. Sanford.
It was not until a later era that the relatively modest authority asserted in Marbury would transform into the final and exclusive authority to interpret the Constitution’s meaning that we know today. In our time, judicial review has transformed the court from the third among equals, the “weakest” of the branches according to Hamilton, to the supreme arbiter of the Constitution.
If Congress eliminated all lower federal courts, there would still be appeals to the U.S. Supreme Court from state courts on questions of federal law.
Not that Republican Party.
A writ of mandamus asks a court to direct an officer of the executive branch to take an action that he or she is required by law to take (as opposed to an action which the law puts to the discretion of the officer).
You might speculate that Madison, as secretary of state, qualified as a “minister.” In the eighteenth century vernacular, this was another type of foreign dignitary.