MARBURY V.

MADISON AND THE ESTABLISHMENT OF JUDICIAL REVIEW

By Megan Nichols

Judicial review from the Supreme Court case Marbury v. Madison in 1803 and the impact of Chief Justice John Marshall's accompanying decision have greatly strengthened the judicial branch. Marbury v. Madison stands as the classic expression of judicial review in American constitutional law. Though the significance of this case has increased over time, the case will remain as one of the fundamental judicial opinions in American constitutional history.

The framers of the federal constitution divided the United States government into three branches: the legislative, the executive, and the judiciary. The latter two were not in the Articles of Confederation. The Federal Constitution enabled Congress to establish certain rules and procedures in the operation of the federal courts. In 1789, Congress established a three-tiered system of federal courts--the District, Circuit, and Supreme Courts. At the bottom of this hierarchy were district courts, each with a single district judge covering every state, with the exception of Virginia and Massachusetts, which had two each. In the middle of this hierarchy were three circuit courts covering the southern, eastern, and middle states. Finally, at the top was the Supreme Court, which was staffed by five associate justices and one chief justice. In addition to the required Supreme Court duties, the justices also served with locally placed justices on the Circuit Courts.(1) The justices objected, however, to serving on the Circuit Court for two reasons. First, traveling was too strenuous due to the fragile health of some of the present judges. Second, and perhaps more valid, was that the Supreme Court was an appellate court which heard various appeals from the Circuit Courts. This meant the Supreme Court justices could possibly hear the same case twice.(2)

A part of the Judiciary Act of 1789, which caused great concern among many Americans, was Section 25. This section of the Judiciary Act stated that whenever the highest state court rendered a decision against a person who claimed rights under the Federal Constitution, laws, or treaties, the judgement could be reviewed and possibly reversed by the Supreme Court. At the time, states' rights advocates approved of this arrangement because it gave state courts a share in a jurisdiction that might otherwise have been assigned to the federal courts. Others viewed Section 25, however, as a danger to the sovereignty of the states since their highest state court could be overruled by the federal judiciary.(3)

Eleven years before Chief Justice Marshall's decision in Marbury v. Madison, the Supreme Court clarified that it possessed the right of judicial review. In 1792, Congress enacted legislation directing the Circuit Judges, including the Supreme Court Justices then sitting on the Circuit Courts, to act as pension commissioners. When this legislation was brought before the Circuit Court in New York, with Chief Justice John Jay presiding, Jay rejected the Congressional act, stating that "... neither the Legislative nor the Executive can constitutionally assign to the Judicial any duties but as such are properly judicial and to be performed in a judicial manner."(4) However, before the issue had a chance to reach the Supreme Court for decision, Congress had changed the procedure for the pension claims. The case was not brought before the Supreme Court, and the Supreme Court did not have the opportunity to rule the act of Congress invalid. Thus, Judicial review was strong at the state level while it was only developing at the federal level.

In 1799, the Federalist Party began efforts to expand the organization and jurisdiction of the federal courts created in the Judiciary Act of 1789. Before Thomas Jefferson took office following his electoral triumph in 1800, the lame-duck Federalist-dominated Congress passed the Judiciary Act of 1801.(5) This act abolished the existing Circuit Courts, freeing Supreme Court justices from their duties as circuit judges. In addition, the number of Supreme Court justices was reduced from six to five, and six new circuits were created. Thus, outgoing President John Adams was able to appoint sixteen circuit judges, who came, among others at even lower levels, to be called the "midnight judges" because their commissions were signed in the closing days of the Adams' administration.(6)

In retrospect, because the case is importance as a legal precedent, a guiding authority, and a basis for linking new decisions to old, Marbury v. Madison ranks as one of the most important cases in all Supreme Court history.(7) Just before President John Adams' term expired, in addition to creating the sixteen new judgeships, he also created various other offices for attorneys, marshals, and clerks. Knowing that the Constitution assured federal judges life tenure and protected them from arbitrary dismissal, Adams rushed to fill the Supreme Court bench with strict Federalists.(8) The nominations were then confirmed by the Federalist Senate and the required commissions were signed and sealed, but some of them remained on the desk of President John Adams and were not delivered by then Secretary of State John Marshall. When Jefferson was inaugurated, he directed James Madison as the new Secretary of State to deliver twentyfive of the commissions appointed by Adams but to withhold seventeen other commissions.(9) Among the commissions withheld were those of Dennis Ramsay, Robert Townsend Hooe, William Harper, and William Marbury.(10) These four men applied to the Supreme Court for a writ of mandamus, an order issued by a court of superior jurisdiction and directed to a public official instructing the latter to fulfill an obligation imposed by law, in an attempt to force Secretary Madison into delivering the commissions.(11) The other thirteen men did not file suit, apparently considering the office of justice of the peace to be too insignificant to become involved in a legal battle.(12)

Why these men waited almost ten months after Jefferson's inauguration before beginning suit against James Madison is unknown. Perhaps they hoped that Jefferson would reappoint them, as he was doing with the majority of the Adams' appointees to justice of the peace positions within their districts. Possibly there were personal causes for the delay, such as difficulty in appearing before a judge, or perhaps they decided to wait until the Supreme Court was in session in Washington. Also, there was speculation that Federalist politicians had persuaded Marbury to take judicial action in hopes of embarrassing the Jefferson administration or possibly to secure a few more justices for the Federalist Party.(13) Whatever the reason, the case first came before the Supreme Court justices on December 21, 1801. On this day, attorney Charles Lee appeared to seek a writ of mandamus to order Secretary Madison to deliver the commissions of Ramsay, Hooe, Harper, and Marbury.(14) When Madison ignored the Court's ruling, Lee and the four men he represented attempted to prove that they had actually been appointed to office. In February of 1803, Lee and his clients petitioned the Senate to permit copies of their appointments to be taken from the Senate Executive journal. However, the Republican majority argued that this would be an invasion of Senate and Executive privacy.(15) Thus, tempers were hot by the time the Supreme Court finally met on February 9, 1803, to begin the case.

In addition to Chief Justice Marshall, only Justices Bushrod Washington and Samuel Chase heard the case, and the Chief Justice dominated the proceedings. Lee, the plaintiffs' lawyer, had the task of proving that the commissions had been completed by Adams and Marshall and demonstrating that the Court had the authority to force Madison to issue them.(16) The first two witnesses summoned by Lee were Chief Clerk Jacob Wagner and Daniel Brent, Federalist

remnants who had served in the State Department. Both men objected to being sworn in because "they were not bound to disclose any facts relating to the business or transactions in the office."(17) Marshall ordered the clerks to be sworn in, however, and to give written answers. The Court did recognize their right to state objections to questions which were improper or too private to answer. Both disclosed many details about what had happened at the State Department in March of 1801, but they were both unsure of whether or not the commissions had been signed.

Next, Lee called Attorney General Levi Lincoln, who objected greatly to testifying. Lincoln appeared to be torn between his respect for the jurisdiction of the Court and the rights of the Executive branch.(18) Lincoln asked the Court to submit the questions posed to him in writing and that he be given until the following day to respond to them.

The next day, February 10, Lincoln answered all but one of the questions. The exception was: "What has been done with the commission?"(19) Lincoln recalled that there had been many commissions that had been signed and sealed, but he did not recall any being sent to the appointees.

Despite the three reluctant witnesses, Lee was able to show through affidavits submitted by another clerk and by John Marshall, in his previous capacity as Secretary of State, that the commissions had indeed been signed and sealed. At this point, the arguments for the case were finished, and on February 24, Chief Justice John Marshall would deliver his opinion for the Supreme Court.

Marshall faced a serious decision, not only for himself, but for the future of the Supreme Court. If Marshall overstepped his power, he could face impeachment. If he backed down, the little prestige the Supreme Court possessed would be reduced to nothing. As he considered Marbury v. Madison after the close of the hearings, he must have realized that he was in a predicament.(20) Both political partisanship and his sense of justice prompted him to issue the writ sought by Marbury and the other three men, but what kind of effect would the mandamus have if he ordered it produced?(21) Most likely, Madison would ignore it, and Jefferson would support him. At that time, Jefferson was at the height of his popularity. To issue a writ would be an act of defiance which could possibly trigger impeachment proceedings against Marshall. This would destroy Marshall and the Court. Thus, it appeared that, no matter what decision Marshall announced that he would hurt himself, the Court, and the Federalist Party.(22)

At some point between the close of the hearings on February 11 and Marshall's announcement on February 24, he arrived at a solution. Marshall viewed the issue as a conflict between the Court and the President. The problem was how to check the President without exposing the Court to his might.(23) By rearranging the main issues of the case, Marshall declared that the President had no right to hold the commissions. He also asserted that Section 13 of the Judiciary Act of 1789, under which Marbury had brought suit, was unconstitutional; therefore, the Court was powerless to help him. By Marshall's authority, he extended his powers, because no act of Congress had ever been declared unconstitutional.(24) Marshall delivered a stern warning to the Jeffersonians, whose entire administration was to be subjected to judicial review by none other than its most powerful enemy, the Supreme Court.(25) At the very end of the decision, Marshall stated:

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void and that courts, as well as other departments, are bound by that instrument.(26) The Marshall opinion denying Marbury his commission covers a total of seventeen pages in the official reports of the Supreme Court. The decision is not measured by the number of pages, but by its assertion that all men, even Presidents, must adhere to the law. According to historian Leonard Baker, the decision must be "admired" for various reasons: its definition of the role of civil liberties and of government in implementing that definition, its restraint in not going beyond the powers of the judiciary, its using those powers to their utmost, and primarily, establishing a rule of law, a procedure for settling disputes without the sword. If civilization is a state in which people can settle their conflicts fairly and without force, Chief Justice John Marshall's decision was one of civilization's finest hours and one of mankind's greatest accomplishments.(27)

In reaching the decision, Marshall used an unorthodox approach. He was an ardent advocate of the rhetorical question and was able to consider the case by posing three such questions. First, has the applicant a right to the commission he demands? Second, if he has a right and that right has been violated, do the laws of his country afford him a remedy? Third, if they do afford him a remedy, is it a mandamus issuing from this Court?(28)

In his opinion for the Supreme Court: Marshall states that first, by signing the commission of Marbury, the President of the United States appointed him as Justice of the Peace for Washington County in the District of Columbia. The seal of the United States, affixed by the Secretary of State, was decisive in verifying the signature and completion of the appointment bestowed on Marbury as a legal right to the office for the space of five years. Second, by having this legal title to the office, Marbury had a right to the commission; a refusal in delivering this commission was a plain violation of that right, for which the laws of the country afforded a remedy.(29) Third, the Court had to determine whether Marbury was entitled to the remedy for which he applied. Marshall devoted thirty-two paragraphs to demonstrate that Marbury was entitled to a writ of mandamus and another forty-six paragraphs to explain why it was unconstitutional to issue the writ of mandamus. This explanation is the most notable portion of the Marbury decision. The Judiciary Act of 1789, Section 13, stated that the judicial courts of the United States authorized 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."(30) Marshall's decision stated,

The Secretary of State being a person holding an office under the authority of the United States, is precisely within the letter of this description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore, absolutely incapable of conferring the authority, and assigning the duties with its words purport to confer and assign.(31) Jeffersonians declared that Marshall had evaded the issue of judicial review and that it was of no precedent. However, by Marshall displaying his authority to interpret the Constitution and laws, he established a precedent that would limit both the lawmaker and executer. Therefore, because of Marshall's verdict, the Supreme Court subsequently presided over the law of the land as a strong and capable institution.(32)

The decision caused immediate and widespread comment throughout the nation. President Jefferson, as well as many other Jeffersonians, did not realize the impact of Marshall's decision until several months had passed. Jefferson later wrote,

Nothing in the Constitution has given the Supreme Court a right to decide for the Executive, more than to the Executive to decide for them. The opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch.(33) Obviously Jefferson was outraged, but he, like others, was confused; very few onlookers seemed to understand the meaning and precedent of what had occurred. The Marbury decision was printed at immense length in both Federalist and Republican newspapers. But, these accounts only recounted the facts of the case and its decision without even an opinion or editorial comment. Historian Donald Dewey contends that the case was disregarded because the editors were preoccupied with worsening diplomatic relations with France.(34)

The most extensive coverage came from the National Intelligencer, a newspaper favored by Jefferson, and the Washington Federalist, a newspaper favored by Marshall. The Intelligencer attributed the case and decision to Federalist vengeance and greed and argued that Adams had no valid reason not to issue the commissions. Therefore, Jefferson's only choice seemed to be to make new appointments or to implement an action by Adams which would "possibly violate the spirit and end the constitution."(35) Other than publishing the entire decision, no editorial comment was made, and no further coverage was printed. The Washington Federalist greatly supported Marshall's decision and was apparently impressed with the length of the ruling. Two weeks after the verdict, the paper published an editorial comment which described the case as "a monument of the wisdom, impartiality and independence of the Supreme Court."(36)

Nathaniel Macon, the Republican Speaker of the United States House of Representatives, went against expected actions and gave the non-Republican response that federal judges have the authority to determine matters of constitutionality. However, Macon was disturbed by the threat of Supreme Court control over the executive through mandamus. Most Republicans were pleased that Jefferson had won the case, shocked that the judiciary would dare to intrude on the executive, and unalarmed about judicial review.(37)

The decision made by Chief Justice John Marshall in 1803 was of considerable significance, not only in Marbury v. Madison, but for the future of the Supreme Court as well. Marshall gave to succeeding judges a federal judiciary that could stand equally beside the other two branches of government. Legal scholar G. Edward White asserts that Marshall associated the act of judging with the qualities of impartiality and disinterestedness and made his office a vehicle for the expression of his views about the proper foundations of American government.(38) However, one cannot ignore the fact that Marshall was a Federalist partisan who had a great interest in determining the outcome of the case. Though Marshall may not have fully recognized the potential of his decision, he must have realized that the decision set forth a great precedent for the Supreme Court and forever strengthened the power of the judiciary. Therefore, by the time he died in 1835, the federal judiciary had become a dynamic force in American government, due largely to John Marshall's efforts and achievements.