Understanding Marbury and Stuart II
Bill Long 11/5/07
The "Logic" and Significance of Marbury (1803)
Here is my "take" on Marbury, 5 US 137 (1803). It is, in essence, a decision which defines a "space" for the Court to exist where Thomas Jefferson couldn't attack or ignore it. Jefferson demonstrated he could ignore the Court previously by refusing to send Madison or a lawyer to the Court for this case. Jefferson didn't want to recognize the authority of the Court. I think he was so caught up in the "headiness" of his massive victories in Nov. 1800 and especially in Nov. 1802, that he felt he didn't need to pay any attention to the Court. After March 4, 1803 enjoyed nearly a 3-1 majority in the Senate and a 2 1/2 -1 margin in the House. The Court was presided over by his (hated) cousin, John Marshall, and was full of Federalists, even though some of them were rather mild-mannered and moderate Justices. Thomas Jefferson really couldn't attack the Court after the Marbury decision because it required nothing of the Executive Branch. All it did was to carve out a breathing space for the Court. It did so through proclaiming the power of judicial review. This wasn't a new idea--see below--but it was a timely idea for the Court.
An Historical Analogy
Let me give an analogy for what the Court did in Marbury, taken from the history of religions. Judaism, after the fall of the Second Temple in 70 CE, was without a power base in the world. Scattered to at least three of the four winds, the Jews had to live by their own skill, smarts and, occasionally, obsequiousness in the world of late antiquity. But what did the Rabbis do? They put together the Mishnah around 200 CE, a 1200 or so page collection of purity laws that should guide the life of the Jewish people. These purity laws had nothing to do with the realities of "external" life in the Roman (or Persian, for that matter) Empire. The Jews, in general, were "powerless" in those Empires. So, what they did was to create an "inner world," a world of argument and debate, a world of purity and holy things. Endless debates could take place on the order in which you should cleans pots and pans; or on the rules and regulations for Sabbath observance. This "internal" world became a very vigorous one and, one might argue, preserved and developed the Jewish culture as an intellectual one. The point should be clear: they had no ability to "compete" in the political realm of the day, and so they retreated to this most technical but real "mental" world, in order to establish their future. Indeed, the hope was that some day they would be able to get land back, and then all the effort spent in interpreting Torah or Mishnah or in reading Talmud would be useful in rebuilding a people.
As with Judaism in late antiquity, so I believe it was for the Supreme Court at the time of Marbury. It had no portfolio in the new government. In order for it to achieve some kind of modus vivendi, it had to escape to its own "mental world" in the hopes that some day it would emerge and be able to stand as an "equal power" in the tri-branch government of the United States. So, what did John Marshall do in the opinion?
Marbury: Picking Up on Themes Lying Around
The briliance of Marbury is not in the originality of its thought; the brilliance was the ability of Marshall to create a separate thinking space for the Court on the issue of reviewing statutes for their Constitutionality. This task of "interpreting": (1) the laws passed by Congress; and (2) the Constitution approved by the States and the Congress, would give the Court some "breathing space" until a time when there was a "non-Jeffersonian" Administration in place. And, we can see the wisdom of Marshall's approach. Two hundred years have passed, and the Court is, by most accounts, an "equal" branch of government.
I am running out of space, and I have two more points to make. First, when Marshall wrote his opinion in Marbury, he used materials "lying around" to make his case. (1) He used Justice Samuel Chase's material from a May 1802 letter to distinguish between the original and appellate jurisdiction of the Court--a very important point in Marbury; (2) he used a long debate (I don't have a citation at this point--sorry) about the ability of the court to interpret statutes to affirm that role in 1803; (3) he used his personal knowledge of the process of nomination, appointment and commissioning as Secretary of State to make the first points in the opinion; (4) he used the Circuit Judge's material on their Jan. 1803 appeal to Congress on their rights as Circuit Judges being "vested" to make his central point about Marbury's right to the commission being a "vested" right. Thus, when you really look deeply at Marbury v. Madison, what impresses you is not the originality of its thought.
Getting to Judicial Review
In fact, the opinion itself isn't very easy to read, its language and distinctions are sometimes hypertechnical (e.g., the distinction between an appointment and a commission), and he doesn't actually reach the major point of the opinion, from our perspective, until he is about 85% done. The opinion is far longer than it needs to be (it is 28 pages in length; it could have been written in five). The crucial point of the opinion is where he begins to discuss what to do when a statute (in this case Sec. 13 of the Judiciary Act of 1789) conflicts with his interpretation of the Constitution. Actually, one is on good grounds for concluding that Marshall tried to create a conflict between statute and Constitution in order to be able to get to the point he wanted--the ability of the Court to declare "what the law is.." But, in any case, his point is this--an act repunant to the Constitution cannot become law of the land. The Constitution is supreme over laws, and the Supreme Court will tell you how this works. This is, he says, "the very essence of judicial duty."
After restudying Marbury in the "deep" and "thick" historical context in which it was written, I conclude that it is a very important decision, not so much for the immediate period of 1803 but for times after the Jeffersonians no longer enjoyed such a monopoly on power in the United States. Thomas Jefferson no doubt saw the ambition in the argument. He could immediately ignore some of the language in the first 3/4 of the opinion that appeared to give ground to the Administration--because he felt that the Court couldn't give him any ground. But he must have been chagrined to see the claim to interpreting constitutions and laws which Marshall articulated at the end of the lengthy opinion. It probably furthered him in his resolve to try to purge some Federalists from the Federal courts (he had moved the House to begin impeachment proceedings against Federalist Judge John Pickering of New Hampshire the same month as Marbury was handed down--Feb. 1803), an effort which would receive its disastrous (from the perspective of Jefferson) denoument in 1805. But that is beyond my story here.
Suffice it to conclude that Marshall had cleverly stated the Court's task in such a way that Jefferson really couldn't do much about it--he could just stew and try to remove Federalist judges. Thankfully, he wasn't able to do the latter--when it really counted (i.e., in the case of Chase). John Marshall, regardless of how you perceive of him as a legal scholar or reader of the Constitution, did the Court, and the country, a big favor in Marbury.
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