Kellyn Hargett
As I stood in front of my Current Issues class, my students started to wonder why they did not have to read the paper today and why I was standing in the middle of the room with the overhead. I put up a copy of a new Bill in the House of Representatives, H.R.3920, which would “allow Congress to reverse the judgments of the United States Supreme Court”. I asked them all how this would effect our government and they gave me many different well thought out answers. I asked them how they believed it all got started and their US History schema never kicked in. So I asked the question: “What can you tell me about Marbury v. Madison?” and I received blank stares. “How many of you have taken US History” I asked them and they all raised their hands. “You have never heard of the case that established judicial review? Well I guess it is time for a little history lesson. How about I tell you a little story?” 1
“In 1801 in a last attempt to keep the Federalists in power in some form of the government, lame duck President Adams signed the Circuit Court Act into law creating many different positions for Federalists in the judicial branch. The Federalists had lost all power in the government due to Jefferson becoming President and the Anti-Federalists gaining the majority in Congress. This decision to pack the courts allowed for the Federalists to have power in one branch but it all came down to Adams’ last few hours in the Presidency and the judges he appointed became the Midnight Judges. The only problem that became of these midnight judges was John Marshall, Adams’ Secretary of State could not deliver them because he no longer had the power to deliver the appointments due to the end of Adams’ presidency.”
“William Marbury was one of the many men who were excited about becoming a part of the newly revised judicial system. He was looking forward to becoming a Justice of the Peace for Washington DC. He was a Federalist and one of the Midnight judges that were appointed in the last hours of Adams’ Presidency. Due to his appointment being signed so late in the Presidency, Marshall could not deliver it to him. On January 28 1803, Marbury finally got so angry that he wrote the United States Senate. He asked that the Senate use their power to force Madison, Jefferson’s Secretary of State, to deliver the commissions to himself and his colleagues.”2
“The Senate, on the other hand, not only could not ensure Marbury of his delivery; and probably wanted to keep Marbury as far from that Justice of the Peace position because he was Federalist and the majority in Congress was the Anti-Federalist Party. Another factor in the Senate not being able to ensure the delivery of his appointment is that it was not in their power to do so. The Senate has some checks over the Presidency but if cannot tell the President what to do and would not have thought to do so this early into the creation of our country. Now for a question, what did the Anti-Federalists believe about the Constitution?” After many black stares from my students I continued and wondered what exactly they had learned in their US History. “The Federalists believed in a loose interpretation of the Constitution while the Anti-Federalists thought that kind of interpretation would infringe on the rights of the states and the individual liberties thus they believed in a tight interpretation of the Constitution.”
“Finally Marbury decided with the other men that never received their appointments sued Madison and asked the Supreme Court to issue a writ of mandamus forcing Madison to give him his appointment. Issuing of writ of mandamus from the high court orders a person to perform a specific act contained by the duty of their office, bound by law to execute, and where the prosecution has the legal right to implement. If the courts decided to issue this writ of mandamus Madison would have been forced to deliver Marbury’s commission regardless of his orders from the President.”3
“While packing the courts, Adams also cut the number of judges down from six to five in the Supreme Court while also appointing his Secretary of State, John Marshall to Chief Justice. Marshall had little experience in the judicial system except for his twelve years of law practice and three years in the judiciary branch. There were two reasons Adams appointed him during this time: one, he was a Federalist and shared Adams’ views on the interpretation of the Constitution; two, Jefferson had a strong dislike for Marshall and his views because of his work with Marshall while he was Vice President and Marshall was Secretary of State. Marshall was the perfect candidate for the job in Adams’ eyes even if it was to make Jefferson even more furious with Adams about the Circuit Court Act.”
“Why was Jefferson have been so angry about Marshall becoming Chief Justice and Adams packing the court?” one of my students, Sean, stopped me to ask.
“I am glad you asked that question,” I began. “Jefferson and Marshall always disliked and distrusted each other even if they were cousins. Jefferson saw Marshall as “little more than a hypocrite and a demagogue,” a rebel in other words. He also admitted he could never speak freely with Marshall due to his judgmental attitude about everything. Marshall had an almost identical opinion of his cousin, Jefferson. Admitting to Hamilton in a letter, Marshall believed his “morals… [could]not be pure.” Marshall also perceived two more attributes if pooled would make Jefferson unqualified for the Presidency: his “foreign prejudices” and the rebellious nature perhaps being the greater fault. Each of them saw each other as power hungry and eager to do anything for more political power thus deepening the distrust and dislike of each other mutually.”4
“Secondly, Jefferson was an Anti-Federalist who believed in a very strict interpretation of the Constitution. Back when Hamilton was proposing the Bank of the United States Jefferson did not believe the Constitution gave that power to the central government while the Federalists believed it fell under the necessary and proper clause. Jefferson’s interpretation of the Constitution was very concerned about personal liberties and protecting states rights. Marshall’s beliefs were very different from Marshall and Jefferson knew Marshall was going to be an active part of the judicial system and try to limit the other branches of the government which he did give the power to do so when he created the concept of judicial review. Jefferson also knew there was no way to get rid of Marshall due to the appointment being for life.”
“Jefferson also saw the judicial branch and its role in a different manner than Marshall did. Jefferson was suspicious of the Supreme Courts because it was not responsible to the people and they could interpret the Constitution according to their own free will without fear. He also used his strict interpretation of the Constitution and saw the judicial branch’s powers enumerated in Article III of the Constitution. So when Marshall created the precedent of judicial review Jefferson probably saw this as an infringement on the personal liberties of the people and a violation of states rights.”
“Marshall, on the other hand, believed differently. The role of the judicial branch was not just to review and judge cases but to really read and interpret the law; he saw judicial review as a check for the legislative and executive branches and that is why he created the precedent of judicial review. Since his views of interpretation of the Constitution were looser than Jefferson he believed in seeing beyond the enumerated powers set forth in Article III and seeing what the Framers intended thus creating a more activist judicial branch that would go through highs and lows of being activist for the next 200 years.”
One of my students, John, finally stopped me and asked another question that I was fixing to discuss with them, “Ms. Hargett, you keep mentioning this term, judicial review, what exactly is it and how was it brought about.” After getting this question asked I asked for what they thought it was after what I had told them thus far; again I received the blank stares until one student remembered me saying something about balances and checkmarks. I smiled to myself thinking about what it was going to be like for these poor children when they got to college and had to retain everything a professor says in class.
“Judicial review” I began as I reached for a Webster’s dictionary and looked it up “is “a constitutional doctrine that gives to a court system the power to annul legislative or executive acts which the judges declare to be unconstitutional.” In a nutshell, a court may declare a law contradictory to the Constitution. This precedent created by John Marshall began with this case of Marbury v. Madison back in 1803. This is not a power given to the judicial branch in Article III; Marshall was the first to write about it but not the first to think of the concept though.”
“Before Marshall ever put it in writing in his opinion of Marbury v. Madison others in this country had thought of the theory beforehand. James Otis arguing in Paxton v. Gray said “an act against the Constitution is void” but it did not establish judicial review in this country due to the fact that Paxton v. Gray was argued in 1761 before the Sons of Liberty ever thought of throwing tea into the harbor. Another Pre-Revolutionary case in the advancement of this idea was Robin v. Hardaway; Mason, a prominent lawyer in Virginia argued that laws giving slave traders the right to trade the children of the Indians was a infringement of their natural rights.”
“Five state courts record judicial review as a precedent before the Constitution was ratified; the first being in Virginia. Commonwealth v. Caton was the initial case that candidly exercised judicial review. The law at issue gave the legislative the power to pardon prisoners rather than the executive. Another case which rather than use judicial review openly used it covertly was Rutgers v. Waddington, in which Alexander Hamilton argued that “statutes against law and reason are void.” The Symsbury case in Connecticut was a land line dispute and brought about an attentiveness in many judges during this time that they were responsible to keep the legislative in check when they were infringing on the rights of the people. Trevett v. Weeden was a case about merchants refusing to accept paper money as legal tender but it brought about the why in the power of judicial review; the judicial branch, according to Varnun the defense attorney, was to protect the rights of the people. The most legendary case was that of Bayard v. Singleton. The state of North Carolina confiscated property held by those who resisted the revolution against the British. Iredell, the plaintiff’s counsel, insisted on the need to check on the legislature because of the lessons we learned in the Revolution against Great Britain.”5
Another student, Laura, stopped me to ask another question, “So if these cases were examples of courts using judicial review then why did Marshall have to supposedly pull it out of thin air?” I looked at her and thought to myself “Wow! A student that actually pays attention in this class.” In answer to her question I said, “Marshall was on the Supreme Court that was established in the Constitution as part of the federal government thus when he heard the case that year and wrote his opinion on it based on Iredell’s ideas he made it a federal precedent rather than a state precedent.” She seemed somewhat satisfied and asked “So how and why did Marshall word his opinion the way he did?” After handing out a copy of the opinion I allowed them time to read it and asked what they believed it meant and how judicial review was shown in the opinion. After hearing the silence and the crickets I narrowed my question, “As to the questions Marshall poses at the beginning of his opinion what does he answer to each of the questions.6
One of my students, Grace Ann, raises her hand and begins the discussion by saying, “As to his first question he says that Marbury does have the right to receive his commission. Madison is not supposed to be acting on the orders of the President because at the time when he is supposed to be delivering these commissions he is an agent of the Congress not the President. Marbury was also due his commission due to the fact that it was signed by the President and sealed by the Secretary of State and thus was appointed; the President may not change his mind once this has taken place. His commission was to last for five years and the fact that he was never given his commission was an infringement on his rights. Marshall did believe that Marbury had the right to demand his commission.”
“Good job Sarah,” I said “now do you think he was in the right?”
Sarah could hardly open her mouth before Jacob shouted out the question, “Is all this stuff really in the Constitution and does he have to know all of this stuff to be able to be Chief Justice of the Supreme Court?” “Now Jacob” I began as I walked around the room, “if you were to interpret the law and have to figure out if a law was contradictory to the Constitution would you want to run find a copy of the Constitution every single time you had to decide if it was unconstitutional?” The class all shook their heads and I said “I did not think so.”
“This brings us to our second question, since Marbury has the right does he also have the right to have it fixed?” I asked my class.
Jacob as the first to offer up an answer of yes but when I asked him the reasoning behind his answer all he could do was look back over the opinion. Jessica, one of the girls in my classroom suggested that Marshall advocates personal loss is inflicted when people in high positions of the government fail to do their duties. Jacob offered up the denial of Marbury’s commission was a “legally cognizable injury.” The minute all this rolled off Jacob’s tongue, on the other hand, Sarah was quick to say that people are generally entitled to remedies but not always; but Jacob was quick to say that was only for people who did not suffer from “legally cognizable injuries” which Marbury did by definition.
“Now our last question brought about the actual concept of judicial review but first what does Marshall say in answer to his first question,” I ask my class. They discuss it for a few minutes and they decided the court could issue one due to Madison’s behavior. They also decided the courts had the authority to issue a writ of mandamus because there was no legal remedy outside of the delivery of his commission. The constitutionality of this authority was another matter entirely.
“The Supreme Court according to the Judiciary Act of 1801 has original jurisdiction where writ of mandamus are asked to be issued to a federal official; although, they only have appellate jurisdiction when a government official and a private citizen are involved. Neither Marbury nor Madison were government officials at the time thus the Supreme Court does not have original jurisdiction in this case. This form of jurisdiction is defined in the Judiciary Act of 1801 instead of in Article III of the Constitution and that is where the judicial branch receives its power; all of these provisions would be worthless if Congress could change them anytime they wanted. This is contradictory to the Constitution due to the section of Article III that declares that Congress does not have the power to deduct from the original jurisdiction of the Supreme Court,” Rachael, my quietest student said from the back row.
“Well,” I said, “Now what about the question of judicial review? Where did this concept come from?”
Again, Rachael began the discussion with her quiet way, “The opinion never explicitly says anything about the Supreme Court having the power of judicial review but it does comment on the supremacy of the Constitution. The Constitution is the supreme law of the land and is supreme over all other laws. When a court is faced with a law that is unconstitutional, the court must be guided by the Constitution due to its supremacy. When taking the oath of office they must guide and protect the Constitution. So Marshall never really says if he is establishing judicial review at all, but he does according to the same court 200 years later in Cooper v. Aaron.” 7
“Thank you Rachael. Now what pray tell is the justification of Marshall for this opinion?” I asked my class and after less blank stares then before I began again. “There was the matter of who this would affect most. Marshall tried his best to keep the respect for the President with the power of removal and jurisdiction of the court. Marshall was trying not to overstep his bounds even though he really did. His reasoning behind this opinion was not make the judicial branch stronger and more powerful even thought I am sure that is what Jefferson thought when he first heard the news. Marshall was trying to keep out of a conflict with the executive branch.”8
“Another reason for the opinion being written in the way that it is and what it says is so that it did not threaten the integrity of the Constitution or the rights of others. Although Marshall was a Federalist they were more concerned with economic growth not the growth of the government. They were just as afraid of creating another monarchy as the Anti-Federalists. This plan could have backfired; it was a gamble and very audacious.”9
“Now what do you think Augusta thought about this? We were conservatives who lived in the South. Now if that were true we would have been Anti-Federalists and even Jefferson accepted the ruling of Marbury v. Madison in the end. Due to the fact that the Augusta Herald was really only printed to advertise the selling of whatever good needed to be sold, the boats coming into harbor, and to keep the people up to date on what was going on in the nation. Or at least, that is what I got out of my research my sophomore year of college. But the South was a conservative place, very concerned with keep their individual liberties and keeping the states with as much power as possible.”
“If this case had not occurred when it did in History, we would not have had the momentous opinions we have had in the past; from Dred Scott to Brown v. the Board of Education, to Plessey. This was the beginning of the activist judicial branch. They were no longer just to decide who was guilty and who was innocent but rather they were to decide what the law was really. This nation might not be the same without this bold precedent of its day.”
“Now that you know a little more behind the concept of judicial review, what do you think about this new concept of Congress writing a bill to make judicial review evocable? Is it lawful? Does that go against the Constitution? What would Marshall think about this law? Will it get passed? If it does what is going to happen to the checks and balances system we have in this country that helps to keep the law of the land supreme in all situations? What is going to happen to our own personal liberties? What do you think?”
Endnotes
1. “H. R. 3920” available from http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.3920
2. Augusta Herald, 9 March 1803, sec. A, pg. 1
3. The 1911 Edition Encyclopedia, “Writ of Mandamus”; available from http://99.1911encyclopedia.org/M/MA/MANDAMUS_WRIT_OF.htm
4. George Mace and Albert P. Melone, Judicial Review and American Democracy (Ames: Iowa State University Press, 1988), ch. 4.
5. Scott Douglas Gerber, The Myth of Marbury v. Madison and the Origins of Judicial Review, ed. Mark A Graber and Michael Perhacm (Washington, D.C.: CQ Press, 2002), 7.
6. Gerber, The Myth of Marbury v. Madison and the Origins of Judicial Review, 8-11
7. The Annotated Marbury v. Madison, available in Marbury v. Madison Documents and Commentary, ed. Mark A Graber and Michael Perhacm (Washington, D.C.: CQ Press, 2002), 363-382
8. Kermit L, Hall, Judicial Review and Judicial Power in the Supreme Court, (New York: Garland Publishing ,Inc., 2000)m p. 63
9. Hall, Judicial Review and Judicial Power in the Supreme Court, pg. 63, 313