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                    Understanding Marbury v Madison, Third Mini-Essay   

                                  Marbury and Stuart, the Two Important 1803 Cases  

What is true about the Gospel of John for biblical scholars is true about Marbury v. Madison (1803) for law professors*: everyone thinks s/he has something to say about it; no one really says much of anything new about it; and, in order to make sure that the "latest" person is heard, s/he tends to try to "shout" louder than everyone else to try to assure that at least someone hears, or, more cynically, that s/he gets tenure. I propose in this and the next mini-essay to speak quietly, to build upon what I have said the previous mini-essays to show how Marbury really was and is an important Supreme Court decision and that Stuart is a case that the Court tried to dispose of with as little fanfare possible.

[*Note: I was a professor of religion and a biblical scholar from 1982-1988 and a law professor from 2003-2006}


My point will be that Marbury has one brilliant dimension to it--the creation of a sphere for legal interpretation that is untouchable by the Executive Branch or Congress. But, as will be reiterated, Marbury was written at the time of lowest ebb of Supreme Court power. That it could salvage so much, when it was seemingly in a place to do so little, is the enduring contribution of Chief Justice John Marshall. 

                                            A Few More Background Words 

When the Supreme Court convened for its annual session on February 10, 1803, it was not meeting in a vacuum. The major issue swirling around for the past year was the constitutionality of the Judiciary Act of 1802 (signed by Jefferson on April 29, 1802), and the repeal of the Judiciary Act of 1801  the month before which threw 16 Circuit Judges out of work (who had been appointed pursuant to the Judiciary Act of 1801). The 1802 Act also required the Supreme Court justices to resume their duties as circuit riders and limited the Supreme Court's term to one per year (in February). I have argued in previous essays that the two major arguments that Federalists could have used to make the case for unconstitutionality of the 1802 law were: 1) Circuit riding goes beyond the Art. III duties of the Court/Justices; and (2) Judges appointed under Article III have a "vested right" in their appointment and therefore can't be "unappointed" by a subsequent act of Congress (the 1802 Act removed the 16 circuit judges appointed in the 1801 Act). But I also argued above that these two argument were gradually taken away from the Court as 1802 turned into 1803. In fact, by the time the Court got around to hearing arguments on Stuart v. Laird (5 US 299), a case from the Fourth Circuit which dealt with these features of the 1802 Act, late in February 1803, they had very little legal room in which to maneuver. 

So, in their early March 1803 opinion in Stuart v. Laird, delivered by Justice Paterson (Marshall, who heard the case below, recused himself), the Court held: (1) that successor courts can do the work of their predecessors; and (2) that circuit riding duties of the Justices were so much a part of the American legal landscape that long usage had led to acquiescence in the practice. But the opinion is very short; it takes no more than five minutes to read it. In my judgment the Supreme Court knew that it had no legal maneuvering room and, rather than making a "big deal" of a case which they wanted to de-emphasize (because it showed their relative powerlessness), they quickly disposed of it through a few paragraphs. The importance of point (1) is that Congress has the right to set up, or terminate, courts at their pleasure. If successor courts can do the work of their predecessor courts (more fully explored in the next essay), then they can also get rid of the predecessor judges.

But, to be clear. It is not a "craven" decision, a judicial "caving in" to "pressure" from outside, or anything of the sort, as it is characterized by Bruce Ackerman and many other contemporary legal scholars. Those words are too inflammatory to be helpful for historical exposition. Stuart v. Laird, which primarily has to do with Stuart's ability to collect a debt from Laird, centered on whether a subsequent circuit court's judgment after a judge's job had been abolished by repeal of the Judiciary Act of 1801, is still binding on the successor circuit court (more about this in the next essay). By holding that it it binding, the Court bowed to political reality. No grounds existed for the Court to make any other decision than it did and still have credibility. Congress now was very strongly against the Court (Republicans had a 25-9 margin in the Senate, while in the previous Congress Republicans held only a 17-15 margin in the Senate--Ohio was added in 1803, bringing with it two Republican senators. The margin in the House was just as favorable to the Republicans against the Federalists), the Justices themselves had assented to returning to their circuit-riding duties, and 11 of the deposed circuit judges were turned down when they asked Congress to keep them on the payroll in January-February 1803. 

                                                        Turning to Marbury 

So, the Court bit the bullet and handed down a bland decision in Stuart. But one week previously, near the end of February 1803, the Court handed down its other decision--Marbury v. Madison (5 US 137). The remainder of this mini-essay will give an "overview" of the decision, with the next mini-essay focusing on what the Court actually accomplished by it. 

Though the case is always styled Marbury v. Madison, there really were three other plaintiffs in the case. All of them were men whose commissions to serve as Justices of the Peace in the District of Columbia, authorized under the District of Columbia law of February 27, 1801, were never delivered to them. They were four of among about 42 "Midnight Judges" appointed by President John Adams in the last few days of his Administration. Sometimes scholars use the term "Midnight Judges" to refer to the 16 Circuit Court judges appointed under the Judiciary Act of 1801 (signed on February 13, 1801)  but that is an improper use of the term. The Circuit Judges were appointed under a different law (the Judiciary Act of 1801, signed on February 13, 1801); and their commissions all went out before the end of the Adams Administration on March 4, 1801. It was the problematic character of the commissions of the hastily-appointed Justices of the Peace under the District of Columbia law, which were signed by Adams, sealed by John Marshall as Secretary of State but not delivered by the clerk that were at issue in Marbury. That is the point.  

Marbury's commission wasn't delivered to him. When he inquired about it during the early days of the Jefferson Administration, Secretary of State James Madison refused to deliver it to him. Marbury et al. brought a claim in the Supreme Court in December term 1801 asking the Court for a writ of mandamus to be issued against Madison--requiring Madison to hand over the commission. Madison didn't show. The case was put over until the February 1803 term (the next time the Court met). Oral arguments and decision were in February 1803. 

                                             Overview of the Decision 

Four issues are important for the Court in the Marbury decision: (1) Did Marbury have a right to the commission? (2) If he had a right to it, was there a remedy if his right to obtain it was impaired? (3) Was mandamus the proper remedy? The fourth issue will be clear in a moment. The answer to 1 was "yes." The answer to two was "yes." But the answer to 3 was "no." The Court held that mandamus wasn't the proper remedy because the Supreme Court is largely an appellate body under Article III and mandamus is an original action. The Judiciary Act of 1789, permitting a mandamus at the Supreme Court, therefore conflicted with Article III, Section 2  of the US Constitution. When this happens, what is the result? That is where issue 4 comes in. What is the result? 4. The provision of the law allowing mandamus at the Supreme Court level is unconstitutional. 

Well, what is the big deal? Plenty, as the next mini-essay shows. 


                Understanding Marbury and Stuart, Fourth Mini-Essay 

                                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 in December 1801. 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 November 1800 and especially in November 1802, that he felt he didn't need to pay any attention to the Court. After March 4, 1803 he 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 Judges. 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 destruction 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 to the powers that be in the topsy-turvy 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 clean pots and pans; or on the rules and regulations for Sabbath observance. This debate over your "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: the Jews 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. More than 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 January 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 but the daring assertion that the Court can review and pass judgment on the constitutionality of statutes.

                                                 Getting to Judicial Review 

The opinion isn't very easy to read. Its language and distinctions are sometimes hyper-technical (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. Yet the opinion is carefully crafted. The first point, that Marbury was entitled to his commission, was based on a fine discussion of the limits of Presidential power.  The second point, that being denied the commission gave him a legal remedy, was demonstrated by copious quotations from William Blackstone, the leading common law legal authority of the day. The third point is that mandamus is the right instrument but that the Supreme Court doesn't have the authority to issue a mandamus. The Judiciary Act of 1789 said the Court had this authority; Marshall argues that Article III Section 2 of the US Constitution doesn't permit it. This is the crucial point of the opinion. What do you 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 "repugnant" to the Constitution cannot become the 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 three/fourths of the opinion that appeared to show the Administration to be in error, because Marshall never really did anything with that point. 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--February 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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