Marbury v. Madison
One need understand only a few of its cases to understand the Supreme Court's role in our nation's history. But one must assuredly understand the case of Marbury v. Madison. This case established the authority of the federal courts to declare a law passed by Congress unconstitutional and therefore void. The vitally important legal principle of the case can be condensed into a sentence or two, and the justification for the doctrine espoused by Chief Justice John Marshall in his opinion for the Court can be comprehended in a page or two. But like so many abstractions standing alone, these tend to go in one ear and out the other when people have no regular need to repair to such doctrine. I think that a fuller understanding of the doctrine itself may be gained by a knowledge not only of the facts of the case but also of the historical setting.
Those who have seen the city of Washington in the early part of the twenty-first century, firmly ensconced as a metropolis of four million at the southern end of the eastern "urban corridor" of the United States, may have difficulty envisioning the city as it existed in 1803, the year the Supreme Court decided the case of Marbury v. Madison. The Constitution adopted by the Philadelphia Convention in 1787 had provided for the creation of a "district" not exceeding ten miles square to become "the seat of the Government of the United States," but it had left the location of that district to Congress. Congress decided that the site of the government should be moved from New York to Philadelphia in December 1790, and ten years later that it should be moved again to the District ofColumbia, a ten-mile-square territory on both sides of the Potomac River. Maryland ceded the necessary territory on the north side of the river, including the city of Georgetown, and Virginia the necessary territory on the south side of the river, including the city of Alexandria.
It is easy today to think of Washington at the opening of the nineteenth century as a somewhat smaller version of the Philadelphia and New York of that time. But nothing could be further from the truth. There were, as just noted, two honest-to-goodness cities already in the District--Georgetown in the northwestern part with a population of about three thousand, and Alexandria in the southern part with a population of about five thousand. But the major part of the District of Columbia designated to be the federal city, and named after George Washington, was still largely a wilderness. The census of 1800 gave it a population of just over three thousand. Philadelphia at this time had existed for more than a century, and had a population of more than forty thousand; New York had existed for a century and a half, and had a population of nearly eighty thousand.
The various departments of government began moving to Washington from Philadelphia during the year 1800, and John Adams was the first president to occupy the newly built President's House, as it was then called. His wife, Abigail, arriving there for the first time in November 1800, observed:
I arrived about 1 o'clock at this place known by the name of the city, and the Name is all that you can call so. As I expected to find it a new country, with Houses scattered over a space of 10 miles, and trees and stumps and plenty with a castle of a house--so I found it--The President's House is in a beautiful situation in front of which is the Potomac with a view of Alexandria. The country around is romantic but wild, a wilderness at present. [Junior League of Washington, p. 81]
Albert Gallatin, designated by Thomas Jefferson to be secretary of the treasury as soon as Jefferson assumed the presidency in March 1801, said upon his arrival in the city to take up the duties of his office:
Our local situation is far from being pleasant or even convenient. Around the Capitol are 7 or 8 boarding houses, 1 tailor, 1 shoemaker, 1 printer, a washing woman, a grocery shop, a pamphlet and stationery shop, a small dry goods shop and an oyster house. This makes the whole of the federal city as connected with the Capitol. [Junior League, p. 87]
A contemporary traveler observed that "the entrances or avenues, as they are pompously called, which lead to the Am. seat of Gov't, are the worst roads I passed in the country. . . . Deep ruts, rocks, and stumps of trees every minute impede yr. progress and threaten yr. limbs with dislocation" (Junior League, p. 82).
Jenkins Hill, a prominent elevation roughly in the center of the District, had been chosen as the site for the Capitol building, but by the time of Jefferson's first inauguration, only the north, or Senate, wing had been completed. The south wing was a temporary brick structure known as the "oven" and occupied by the House of Representatives. A list of Washington buildings drawn up in November 1801 showed a total of 621 houses standing on private land.
On March 4, 1801, Jefferson simply walked from his nearby boardinghouse to the Senate chamber inside the Capitol building to take his oath from John Marshall, his distant cousin and the newly appointed Chief Justice of the United States. Marshall, who throughout his thirty-four years as Chief Justice lived with his colleagues in a boardinghouse near the Capitol during the time they were in Washington, probably walked from his own boardinghouse to administer the oath to Jefferson.
Just as it is difficult to imagine the Washington of 1801 on the basis of the Washington that exists today, it is also difficult to envision the way in which the Supreme Court was housed in 1801 on the basis of the "marble temple" in which it is housed today. Surely many of those who have seen the beautiful Supreme Court building located opposite the east plaza of the Capitol must have felt it was entirely fitting that each of the three independent branches of the federal government should be symbolized by a building--the president by the White House, the Congress by the Capitol, and the Supreme Court by its building.
But such was not the case in 1801. It was not until January 20, 1801, that any notice was taken of the need to provide the Supreme Court with a place to conduct its term, which would begin the next month. At this time the District Commissioners recommended to Congress that, "As no house has been provided for the Judiciary of the United States, we hope the Supreme Court may be accommodated with a room in the Capitol to hold its sessions until further provisions shall be made, an arrangement, however, which we would not presume to make without the approbation of Congress." Congress responded to this suggestion by designating a committee room on the first floor of the Capitol building as a "courtroom," and there the Court sat for seven years until more spacious quarters were afforded it. In the words of a leading student of the Court:
In this small and undignified chamber, only 24 feet wide, 30 feet long and 21 feet high, and rounded at the south end, the Chief Justice of the United States and his associates sat for eight years. [Warren, Vol. I, p. 171]
And what of the Chief Justice and his five associate justices?
John Marshall, universally referred to as "the great Chief Justice," was born in Fauquier County, Virginia, in 1755. He had commanded a line company in the Revolutionary War and had fought in the battles of Brandywine, Germantown, and Monmouth before he was twenty-five years of age. He served under George Washington at Valley Forge, from whom he acquired "a strong sense of nationalism and respect for discipline and authority" (Haskins and Johnson, p. 102). After independence was achieved, Marshall served first in the Virginia legislature and then in Congress. He was appointed one of the famous "XYZ" commissioners sent to deal with Talleyrand and the French Directory in 1798, and upon his return he served as secretary of state to John Adams in the closing days of the latter's administration.
At that time a vacancy occurred in the chief justiceship by reason of the resignation of the incumbent, Oliver Ellsworth, in December 1800. By then it already appeared that the election of 1800 had gone against the Federalists, and John Adams felt a strong need to put a dedicated Federalist on the bench before the government should come into the hands of Jefferson and the Republicans. He offered the position to John Jay, who had earlier occupied it before resigning to run for governor of New York; but Jay declined in early January. Adams then passed over two Associate Justices of the Court, William Cushing and William Paterson, whom he was thought to be considering, and, "like a bolt out of the blue," nominated John Marshall.
From the portraits of John Marshall in existence today, it seems to me that the most striking characteristic of the man is his piercing dark eyes. He looks like a man who has a good sense of humor and is mentally keen. In physical appearance he was tall, loose-jointed, and often negligently dressed. William Wirt wrote, "In his whole appearance, and demeanor; dress, attitudes, gestures; sitting, standing or walking; he is as far removed from the idolized graces of Lord Chesterfield, as any other gentleman on earth" (W. Wirt, The Letters of the British Spy [Baltimore, 1811], p. 95).
His longtime colleague on the Court, Joseph Story, said of him: "I love his laugh--it is too hearty for an intriguer; and his good temper and unwearied patience are equally agreeable on the bench and in the study" (Junior League 1977, 101). Andrew Oliver, in his interesting work The Portraits of John Marshall, makes this observation:
[T]here is a remarkable consistency in the several types of his portraits, the only difference being due, undoubtedly, not so much to Marshall's change in appearance as he grew older but rather to the eye of the artist. . . . There is no difficulty in discovering in Inman's aged Chief Justice the young and handsome envoy to France as he appeared in 1797. Jefferson and the two Adamses grew old, old and tired, tired and wearied looking. Marshall, aged 80, in the face of the dreaded operation for the stone only a day or two later, looks down on us from Inman's canvas as serene, as gentle, and yet as firm, as he appeared before his elevation to the Court 30 years before. And as he looked while on the bench throughout his career as Chief Justice. [Oliver, 1977]
The Court's senior associate justice, William Cushing, was a native of Massachusetts, appointed to the Court by George Washington in 1789. He was a solid, competent lawyer, although by 1801 he was apparently showing some of the infirmities of age. William Paterson, appointed by Washington in 1793, was a distinguished New Jersey lawyer and an important figure in the Constitutional Convention in Philadelphia. A majority of the Senate that confirmed Marshall as Chief Justice would have apparently much preferred to see President Adams nominate Paterson to that position.
Samuel Chase of Maryland, known as "Old Bacon Face" because of his brownish-red complexion, was an able lawyer, strong-minded and clear-thinking. But he was also "a man of violent opinions, overbearing manners, and fierce temper, he made enemies rapidly and easily, and he was always a center of controversy, in law as in politics" (Haskins and Johnson 1981, 91). The commencement of the Supreme Court's term, scheduled to begin in August 1800, had to be delayed partly because Justice Chase was speaking to political gatherings in Maryland on behalf of John Adams's candidacy for the presidency (Warren 1923, I: 156).
Bushrod Washington of Virginia had been appointed to the Court by John Adams in 1798. He was the nephew of George Washington, and was destined to serve thirty-one years as an associate justice on the Court. He was regarded by his contemporaries as an accomplished lawyer, but seems to have been primarily a legal craftsman rather than anything like a broad-gauged statesman. He was short in stature, boyish in appearance, and apparently, like Marshall, a careless dresser.
The most junior justice of the Court in 1801 was Alfred Moore, who had been appointed by President Adams two years earlier. Since he was destined to serve only five years on the Court, we know very little about him. He was a North Carolinian, well thought of at the bar of that state. He apparently looked much like a child, being only four and a half feet tall, and weighing between eighty and ninety pounds.
These, then, were the six men who comprised the Supreme Court of the United States when the case of Marbury v. Madison began before them in December 1801.
William Marbury was one of the so-called "midnight judges," appointed justice of the peace in the District of Columbia by John Adams on the eve of his surrendering the presidency to Thomas Jefferson. But while Marbury had been duly nominated by the President and confirmed by the Senate, because of a last-minute mix-up occasioned by the change of administration on March 4, 1801, his commission executed by the President had never been delivered to him by the secretary of state. Jefferson, upon assuming office, issued commissions to a majority of the some forty justices of the peace in Marbury's position but declined to issue Marbury's. Marbury requested that James Madison, newly appointed as Jefferson's secretary of state, deliver to him his commission, but Madison declined. Marbury then sought a writ of mandamus (Latin for "we command") from the Supreme Court of the United States, which would direct Madison to deliver to him his commission. The proceedings were begun in December 1801; the Court heard final arguments in the case in February 1803 and handed down its opinion later that same month.
During the stormy presidency of John Adams, from 1797 to 1801, bitter divisions in public opinion between the Federalists and the anti-Federalists, or Republicans, had manifested themselves, divisions that were to affect history for a number of years. In 1798 Congress enacted the so-called Alien and Sedition Acts, consisting of four different laws. The first three dealt with aliens: They raised the waiting period for naturalization from five to fourteen years, permitted the detention of subjects of an enemy nation, and authorized the president to expel any alien considered by him to be dangerous. The fourth law was the Sedition Act, which outlawed the publishing of "false" or "malicious" writings against the government and the inciting of opposition to any act of Congress or of the president.
The Republicans, with considerable reason, claimed that all these laws were directed at them. The French and Irish immigrants who were subject to the provisions of the alien laws had by and large allied themselves with Jefferson and his adherents. The Sedition Act was bitterly denounced as violative of the freedom of speech and freedom of the press guaranteed by the First Amendment to the United States Constitution. Indictments were brought under one or the other of these acts and tried before several of the justices of the Supreme Court sitting as trial judges on circuit, and the Supreme Court justices in that capacity had upheld the constitutionality of these acts.
The crowning indignity, perhaps, in the eyes of the Republicans, was the enactment by Congress on February 13, 1801--less than three weeks before Jefferson would succeed Adams as President--of a law formally titled the Circuit Court Act and quickly dubbed the "Midnight Judges Act" by its opponents. There were legitimate reasons for enacting such a bill; under existing law, the justices of the Supreme Court were required to "ride circuit" and sit as trial judges in the various geographic areas of the new nation. Given the condition of transportation in the country at the time, the judges fervently desired at least partial relief from these duties. In the words of one of the principal students of the times: "Had this measure been adopted at an earlier period and under less partisan auspices, there would have been strong arguments in its favor, for it brought about a reform long recognized as desirable" (Warren 1923, I: 185).
But, coming as it did when Federalist control of the presidency and Congress was breathing its last gasp, it created an uproar. The bill relieved the Supreme Court justices of their circuit duties, reduced the number of judges from six to five, and established six new circuit courts with sixteen new judges to administer them. All sixteen of the new judges were, of course, appointed by John Adams, the lame-duck president.
Thomas Jefferson, in a private letter written later that same year, described the Federalists in these words: "On their part, they have retired into the judiciary as a stronghold. There the remains of Federalism are to be preserved and fed from the Treasury, and from that battery all the works of Republicanism are to be beaten down and erased" (Malone 1970, 458 n. 5).
Jefferson was not the sort of president to take this threat lying down, and when the Republicans gained control of both the presidency and the Congress under his aegis in 1801, they promptly enacted a new judiciary bill which repealed the obnoxious provisions of the Midnight Judges law. Congress at the same time passed a law abolishing the June and December terms of the Supreme Court, which had been created by the act of 1801, and restoring the old February term but not the old August term. By dint of this rather extraordinary measure, enacted with ill-disguised hostility toward the Supreme Court, an adjournment of that body was enforced for fourteen months--from December 1801 to February 1803.
It was in this atmosphere of bitter, divisive hostility between the two principal political parties that a Supreme Court consisting entirely of Federalist appointees was called upon to judge the claim of another Federalist appointee, William Marbury, against a Republican secretary of state, James Madison.
The case was argued before the Supreme Court in early February 1803, and it was decided later in the same month. Chief Justice John Marshall delivered the opinion of the Court, an opinion in which all of the associate justices concurred. If the opinion is parsed for substance rather than form, it deals with four successive questions: (1) Does Marbury have a legal right to the position of justice of the peace for the District of Columbia, and thence to the commission which bestows or establishes that right? (2) If he has such a right, does the law give him a remedy? (3) Is a writ of mandamus a proper remedy in this case? (4) May such a writ of mandamus issue from the Supreme Court in this case?
Marshall, in answering the first of these questions, traces the president's appointive power as set forth in the Constitution and points out that the final step in this process is the president's affixing of his signature to the commission of office. The law then directs the secretary of state to deliver the commission to the appointee, after having affixed the great seal of the United States to it and recording it. But the actual "appointment" that enables the officeholder to occupy the office occurs when the president affixes his signature to the commission. At that point, Marbury was entitled to the office, and to the commission evidencing his appointment.
Marshall then asked, if Marbury had a right to the office under the commission, "do the laws of his country afford him a remedy?" The question, so put, is of course almost rhetorical, and Marshall answers it with a rolling period: "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."
Next, Marshall dealt with the question of whether a writ of mandamus was proper in this case. This question, rather than the final question of the power of courts to declare acts of Congress unconstitutional, was the more controversial in its time. Thomas Jefferson, James Madison, and the other Republicans who then controlled both the executive and legislative branches of the federal government, were understandably concerned that the judiciary might seize this opportunity to establish its authority to direct high officers of the executive branch how to discharge their official responsibilities. If the federal courts could order James Madison, the secretary of state, appointed by the President, to deliver a commission to a justice of the peace, what would they next be ordering a cabinet officer to do?
Marshall's opinion refers to cases decided by the English courts, which had approved the issuance of a writ of mandamus directing a particular action to a public official in England. He then notes that the "intimate political relation subsisting between the President of the United States and the heads of the departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such an investigation" (Marbury at 170). But the opinion goes on to distinguish between executive responsibilities that involve a measure of discretion, which are not reviewable by the courts, and questions with respect to which the law imposes a duty to act upon a high official of the executive
branch, which questions are subject to judicial control by a writ of mandamus.
Marshall in his opinion then turned to the fourth and final question before the Court: Could a writ of mandamus issue from the Supreme Court of the United States? The difficulty here arose from the fact that Marbury had originally filed his lawsuit not in a lower court but in the Supreme Court itself. Since the judicial article of the Constitution prescribes the jurisdiction of the Supreme Court and of such lower federal courts as Congress may create, these courts necessarily have only "limited" jurisdiction, and a person who wishes to file a suit in one of them must show that some provision of law authorizes him to bring his suit in that court.
Marbury relied for his right to sue in the Supreme Court on a section of the first law that Congress ever enacted dealing with United States courts--the Judiciary Act of 1789--which provided that the Supreme Court should have the power "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." Considered by itself, this provision supported Marbury's right to sue in the Supreme Court: He desired a writ of mandamus against the secretary of state, and the secretary of state was obviously a "person holding office under the authority of the United States." Marshall's opinion conceded as much, but then went on to decide that this section of the Judiciary Act of 1789 was unconstitutional.
His reasoning on this point begins, as it obviously had to, with the language of the Constitution itself. Article III of the Constitution, which deals with the federal judiciary, provides for one Supreme Court and such other federal courts as Congress may create. It then goes on to state that "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction."
The traditional distinction between original jurisdiction and appellate jurisdiction is this: Original jurisdiction means the power to hear and decide a lawsuit in the first instance, while appellate jurisdiction means the authority to review the judgment of another court that has already heard the lawsuit in the first instance. Trial courts are courts that exercise original jurisdiction; courts of appeals and supreme courts generally exercise appellate jurisdiction. But, Marshall pointed out, the Constitution had not left this matter to speculation. In a few special cases, Article III provided that the Supreme Court should exercise original jurisdiction, to wit: cases affecting foreign ambassadors and cases in which one of the states itself was a party. Thus, if the Constitution meant what it said, Marbury could not bring his lawsuit in the Supreme Court of the United States because he was asking the Supreme Court to grant him relief in the first instance, without his ever having gone to a lower court. And Article III said this could be done only in cases involving foreign ambassadors or in cases where one of the states was a party to the lawsuit.
It might have been urged on behalf of Marbury that this provision of the Constitution granting original jurisdiction to the Supreme Court was not meant to prevent Congress from changing the limits of that jurisdiction, but Marshall's opinion rejects this argument:
If Congress remains at liberty to give this Court appellate jurisdiction, where the Constitution has declared their jurisdiction shall be original; and original jurisdiction where the Constitution has declared it shall be appellate; the distribution of jurisdiction, made in the Constitution, is form without substance.
There was probably more to this argument on behalf of Marbury than the Court suggests, but most students of the subject agree that the Court was correct as a matter of logic on this point. The result was that Congress in the Judiciary Act of 1789 had passed a law that granted the Supreme Court a kind of jurisdiction that Article III of the Constitution by negative inference said it could not have; what was the Court to do?
The Court decided without much hesitation that the Constitution, which had been ratified by assemblies representing all of the people of the United States, would have to prevail over an act of Congress, which was simply one branch of the federal government exercising powers delegated to it by the people through the Constitution. There have been countless refinements, discussions, and exegeses on the question of by what right one branch of the federal government, the judiciary, should take it upon itself to declare unconstitutional a law duly enacted by Congress and signed by the president, coordinate branches of that government. But Marshall was a first-rate expositor of doctrine, and the justification contained in his opinion for the Court in this case is worth setting forth verbatim:
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 certain principles, supposed to have been long well established, to decide it.
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. 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 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 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.
Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and is, consequently, to be considered, by this court, as one of the fundamental principles, of our society. It is not therefore to be lost sight of in the further consideration of this subject.
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 be not law, does it constitute a 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 too gross to be insisted on. It shall, however, receive a more attentive consideration.
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.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
John Marshall's opinion for the Court evoked less notice at the time than might have been expected. That part of the press that supported the Republicans devoted its principal criticism to the doctrine that an extraordinary writ such as mandamus could, in Marshall's view, be in some circumstances directed to a high official of the executive branch. But Marshall's opinion in this respect had been quite guarded, and the mischief anticipated by the Republicans did not materialize. The proposition for which the case stands in United States constitutional law--that a federal court has the authority under the Constitution to declare an act of Congress unconstitutional--was not seriously challenged by contemporary observers, and has remained the linchpin of our constitutional law ever since Marbury v. Madison was handed down.
William Marbury never did get his commission as a justice of the peace for the District of Columbia. James Madison's eight years as secretary of state in the administration of President Thomas Jefferson gave way in 1809 to two terms as President in his own right. Madison, of course, would have been remembered equally well in American history as the father of the Constitution, drafter of the Bill of Rights, and two-term Republican president, even if he had delivered William Marbury's commission and thereby avoided the lawsuit of the latter. But William Marbury has been saved from historical obscurity only by the fact that he was the plaintiff in the most famous case ever decided by the United States Supreme Court.
Copyright 2001 by William H. Rehnquist Chapter One