Introduction
In 1800 the
Federalists and
their candidate, President John Adams, lost the election to Thomas
Jefferson.
Early in 1801 the lame-duck Federalist Congress enacted a controversial
Judiciary Act that created 58 new judgeships, including 42 justiceships
of the peace, for Adams to appoint. Jefferson complained that the
Federalists "have retired into the judiciary as a stronghold." On
the night March 3, 1801, John Marshall, acting as secretary of state,
affixed
the official seal to the commissions for the justices of the
peace.
He did not, however, deliver the commissions. The next day, after
Thomas Jefferson was inaugurated, he directed the new secretary of
state,
James Madison, to withhold delivery of 17 of the 42 commissions,
including
that of William Marbury. William Marbury sued for a writ of
mandamus
to require Madison to hand over his commission.
William
Marbury
The decision in
Marbury's
case, written by Chief Justice John Marshall (the very same John
Marshall
who affixed the seal to Marbury's commission--talk about a conflict of
interest!) established and justified the power of judicial
review.
It is the first case read by virtually every first-year law student and
is generally considered the greatest of all landmark cases.
Marshall
strained to reach his result. The plain words of Section 13 of
the
Judiciary Act indicate that Marbury went to the wrong court or invoked
the wrong statute (or both), but Marshall proceeded as if the suit were
authorized by Section 13 and then declared the statute unconstitutional
on the grounds that it purported to expand the Court's original
jurisdiction
in violation of Article III. Marbury's suit was dismissed for
lack
of jurisdiction. Marshall's decision--brilliant in its
conception--allowed
the Court to brand Jefferson a violator of civil rights without issuing
an order that the President could have ignored.
Case
Marbury
vs. Madison (1803)
Fragment
from John Marshall's Handwritten Decision
Questions
1. Is judicial
review a good
idea? Should nine unelected judges be able to tell our elected
representatives
what they can and cannot do?
2. Are courts
more likely
to block an enlightened consensus with their adherence to outdated
principles
or to protect the politically weak from oppressive majorities?
3. Are
judges,
protected with lifetime tenure and drawn generally from the educated
class,
more likely to be reflective and above the passing enthusiasms that
drive
legislative action?
4. Does Marbury
mean that legislators or members of the executive branch have no
responsibility
to judge the constitutionality of their own actions?
5. Could we
have
a workable system of government without judicial review?
"The prime and most necessary function of the Court has
been that of validation,
not that of invalidation. What a government of limited powers
needs,
at the beginning and forever, is some means of satisfying the people
that
it has taken all steps humanly possible to stay within its powers."
--Professor Charles
L. Black
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Links
Marbury
v. Madison Background & Players
(James Madison Univ.)
Judicial
Review (Wikipedia)
1800-1809
American Events Timeline
John
Marshall - Definer of a Nation
1803
Petition, Debate & Vote of Wm. Marbury & Others
(from Annals of
Congress)
Pitching quoits
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Quoits,
Anyone?:
The Personality Differences of John Marshall and Thomas Jefferson
"[John Marshall] was proud of his skills in
pitching quoits--a game involving a kind of round horseshoe--and could
be observed at the Quoits Club in Richmond toward the end of his life
downing Madeira and rum punch, getting down on his hands and
knees earnestly measuring the distance between his quoit and those of
his opponents, and then shouting in unaffected happiness when he
won. It is hard to imagine the withdrawn and aristocratic
Jefferson in a similar posture."
--Jeffrey Rosen, The
Supreme Court: The Personalities and Rivalries That Defined America
(2006).
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Chief Justice
John Marshall
The
Judiciary Act (Section 13):
The act to establish
the judicial courts of the United States authorizes the supreme court
"to
issue writs of mandamus, in cases warranted by the principles and
usages
of law, to any courts appointed, or persons holding office, under the
authority
of the United States."
Article
III of Constitution
Section.
2
The judicial Power shall extend to all Cases, in Law and Equity,
arising
under this Constitution, the Laws of the United States, and Treaties
made,
or which shall be made, under their Authority;--to all Cases affecting
Ambassadors, other public Ministers and Consuls;--to all Cases of
admiralty
and maritime Jurisdiction;--to Controversies to which
the United States shall be a Party;--to Controversies 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, and between
a State, or the Citizens thereof, and foreign States, Citizens or
Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the
Supreme
Court shall have appellate Jurisdiction, both as to Law and Fact, with
such Exceptions, and under such Regulations as
the Congress shall make.
Original
Intent &
Judicial Review
The Constitution
does not
expressly provide for judicial review. What should be made of
this
fact? Does it suggest that the framers did not intend to give the
courts such a power? Not necessarily, although that is one
explanation
for its absence. It is also possible that the framers thought the
power of judicial review was sufficiently clear from the structure of
government
that it need not be expressly stated. A third possibility is that
the framers didn't think that the issue would ever come up, because
Congress
would never pass legislation outside of its enumerated powers.
Only 11 of the
55 delegates
to the Constitutional Convention, according to Madison's notes,
expressed
an opinion on the desirability of judicial review. Of those that
did so, nine generally supported the idea and two opposed. One
delegate,
James Wilson, argued that the courts should have the even broader power
to strike down any unjust federal or state legislation. It may
also
be worth noting that over half of the thirteen original states gave
their
own judges some power of judicial review.
Footnote:
The Flying
Fish Case
Two Views
on Seizures
Vice President
Thomas Jefferson opposed the
1799 order of President Adams allowing the
seizing of
ships.
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Many people know the
first Supreme Court decision to declare an act of Congress
unconstitutional (It's Marbury,
of course), but few people could identify the Court's first decision
declaring Executive Branch action to be unconstitutional. Little v Barreme (1804), called the
Flying Fish case,
involved an order by President John Adams, issued in 1799 during our
brief war with France, authorizing the Navy to seize ships bound
for French ports. The president's order was inconsistent with an
act of Congress declaring the government to have no such
authorization. After a Navy Captain in December 1799 seized the
Danish vessel, the Flying Fish,
pursuant to Adams's order, the owners of the ship sued
the captain for trespass in U. S. maritime court. On appeal, C.
J. Marshall rejected the captain's argument that he could not be sued
because he was just following presidential orders. The Court
noted that commanders "act at their own peril" when they obey invalid
orders--and the president's order was outside of his powers, given the
congressional action.
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