Monday, September 18, 2006


Marbury v. Madison: The Origins of Judicial Review

Marbury v. Madison is a fascinating case, not just for its facts and history, but for the clever brokering of power resulting from it. By limiting its power in one narrow sense, the Supreme Court immeasurably gained (through the simple expedient of bootstrapping) a much broader power. Watch for the tricky sacrifice below.

a. The Facts of the Case

As the presidency of John Adams (our second president) drew to a close (his party having been soundly defeated both in the presidential elections and the Congressional elections), he sought to preserve his party’s political power beyond his term. In his last moments as president, he appointed several persons to vacant Federal Magistrate posts. These appointments would keep many of his friends in power well beyond the duration of his presidency.

One of these friends was William Marbury, appointed at the last minute as a Justice of the Peace in the District of Columbia. The outgoing Congress (most of which were soundly defeated as well) approved this appointment and Adams signed Marbury’s commission as one of his last acts.

But via an oversight, the commission paper was never sent out to Mr. Marbury. In fact, it was left in a desk at the White House, only to be discovered later. When the new president, Thomas Jefferson took over, he was naturally desirous of appointing his own political friend to Marbury's post. Jefferson's secretary of state, James Madison, thus refused to send out the paperwork on Marbury's commission when it was found.

Just before this political tempest, Congress had passed a law giving the Supreme Court the power to issue Writs of Mandamus to the President. A Writ of Mandamus is an order from a Court which compels a government official to do a thing. In this case, Marbury sued under this law, asking the Court to force Mr. Madison and Mr. Jefferson to send Marbury his commission papers so that he might take his rightful post.

Marbury sued, and filed his case directly to the United States Supreme Court, rather than through the lower courts.

The fact that Marbury filed his case directly with the Supreme Court is very important to the outcome of the case.

b. Clever Power Brokering

The new Congress and the new President Jefferson, did not want Marbury to get his post. They would happily go along with any result denying Marbury his post and giving it to the political friend of Jefferson. Neither the Executive branch nor the Legislative branch cared about the reasoning for a decision reaching this result. They just wanted the result.

The Supreme Court decided that the Constitution specifically enumerated the types of cases which could be filed directly with it. This is not true of appeals, since the Constitution says that the Congress can control what type of appeals the Supreme Court can hear.

Thus any law trying to give the U.S. Supreme Court additional powers to hear original cases was in contravention to the Constitution.

This result made the new Congress and President very happy with their short term (and complete) victory over Marbury.

But while the new Congress gained in the short term, they did not realize that in so deciding, the Supreme Court gave itself the power to declare the ordinary acts of the Congress and the President unenforceable. Here’s how:

The Constitution specifically enumerates the powers of the Congress. It also specifically enumerates the powers of the Supreme Court. Nowhere in the Constitution does it say that the Congress can give the Supreme Court extra powers to hear cases filed originally with the Supreme Court

This means that the Congress could empower the Supreme Court to grant the Writ of Mandamus that Marbury sought. The Supreme Court noted that there was a conflict between the wording of the Constitution and the wording of the mandamus law passed by the Congress.

The Supreme Court reasoned that since the Congress gets its power to pass the laws from the Constitution, any law that Congress passes which violates the Constitution (the very document giving it its power) is unenforceable. Thus the law giving the Supreme Court too much power was overruled by the Supreme Court.

In doing so, the Supreme Court gave itself a much greater power in that it now had the ability to rule that certain acts of Congress which it determined were in conflict with the Constitution were unenforceable (or more accurately "unconstitutional"). And the Congress and the President went along with it, all to get their little victory over Mr. Marbury. Idiots!

As Mr. Chief Justice Marshall put it:

"The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited powers and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition to 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."

The Court went on to set itself up as the enforcer of this restraint upon Congress as follows:

"If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it not be law, does it constitute as rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity to gross to be insisted on. It shall, however receive a more attentive consideration. It is emphatically the province and the duty of the judicial department to say what the law is."

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