Marbury v Madison (Mock Class, UVA Law)

This is the first case to teach for first year constitutional law.

This is the case that creates judicial review, and it defines the role of the judiciary.

[4:50]

Background to this case:

• The election of 1800 was pretty nasty. Jefferson was the Republican, liked small government, and wins the election.
• John Adams, the incumbent Federalist president was in favor of centralized power, was defeated.
• This election seemed like the end of the world to the Federalists.
• In the interim between election and inauguration, Adams restructures the federal judiciary, creating lots of new judgeships and packing these positions with Federalists.
• He also created 42 new Justice of the Peace commissions, one of which goes to Mr. Marbury.
• John Marshall is the author of the opinion, chief justice of the Supreme Court, and had been secretary of state under John Adams, and it had been his job to deliver the commissions for the justices of the peace.
• Marshall had not delivered Marbury’s commission.
• The Republicans are pissed off, repeal the Judiciary Act, and eliminate the 1802 term of the Supreme Court
• Jefferson refuses to deliver the commissions that were undelivered, and Marbury doesn’t get his commission.
• Jefferson tells his SoS, James Madison, not to deliver those commissions.
• When the new term starts in 1803, one of the first cases is Marbury’s case.
• In the mean time, John Marshall is appointed Chief Justice of the Supreme Court (there was even a month of overlap where he was both SoS and Chief Justice)
• Marshall presides over the trial at the Supreme Court where the question is, what happened to Marbury’s commission. He knew but was not called to testify.

In the 1801 session, the court issued an order to Madison to defend himself, and give a reason why a writ of mandamus should not be issued against him, forcing him to deliver these commissions. Madison did not respond and never did show up to defend himself at trial.

At this time, the Supreme Court had very little power, it was a low prestige posting. They had to travel around by horse and carriage to random places and sleep in inns to hear cases. This is the case that gave the court prestige and power.

The case has 3 questions:

• Does Marbury have a right to the commission: yes
• Does Marbury have a remedy for this violation of law: yes
  • the remedy is a writ of mandamus
• Can this court issue a writ of mandamus: no
  • The no is that the law is unconstitutional, and therefore the law is struck down.

[13:20]

Does Marbury have a right to the commission?

Based on his interpretation of the statute that made up the Judiciary Act, Marshall didn’t think it was necessary to deliver the commission: it was legal and official when the seal was affixed.

Does Marbury have a judicial remedy?

Marshall says for every right there’s a remedy, which isn’t really true.

There are situations where there is no right, for example, unreviewable discretion. Suppose Marbury had given a lot of money to Adams’s campaign with the expectation of getting and appointment, and Adams decides not to give him one. There is no right created, the court can’t do anything about it. That’s the kind of discretion vested into political actors over which there is no review.

What’s the difference between a decision that is reviewable by the courts and a decision not reviewable, because it’s a discretionary act? If a decision is some duty created by law, then the decision is reviewable; otherwise not.

Because the law says Marbury gets a commission and gets it for 5 years when it’s signed and sealed, he has a right which is subject to review, and the court can impose a duty to deliver this commission.

This distinction between discretionary political acts and non-discretionary legal rights that become duties is an early instance of what’s called “the political question doctrine”–that some questions are only answerable in one political branch and not subject to judicial review. Presidential Pardons, Impeachment Proceedings.

For political questions, there are still remedies, they are just not judicial in nature. Citizens can vote, the legislature can impeach, the executive can veto.

Because Marbury had a vested right, Madison has a duty to remediate the violation of that right.

[20:40]

This response to part 2 is already enough for Marshall to have his big statue in the Supreme Court. Because in this he claims the right of judicial review for the court, and moreover that the court has jurisdiction to decide when judicial review is suitable.

Is Marbury entitled to the remedy he seeks–the writ of mandamus?

Two parts. First part, did Marbury ask for the right writ: yes he did. It’s spelled out in the Judiciary Act that writs of mandamus can be issued by the Supreme Court against persons holding office.

But the reason Marbury won’t get his commission is that the statute is unconstitutional. When it’s not constitutional, then there is no subject matter jurisdiction for the court to hear this case. Normally, the first question asked in a case should be if there is subject matter jurisdiction. Marshall is inverting this to push an agenda, to establish judicial review over executive branch actions.

Marshall’s assertion is that the judiciary act grants the Supreme Court original jurisdiction to issue these writs of mandamus. However, his argument is that based on Article III, Section 2 of the constitution, the Supreme Court only has original jurisdiction on specific named matters.

One reason Marshall’s argument might not be correct: In service of this argument, Marshall gives an incomplete quote of Article III Section 2 which omits a specific clause. The constitution contains language that Congress can pass laws to make exceptions to the Supreme Court’s jurisdiction, though this clause is attached awkwardly, where it could relate only to the appellate jurisdiction of the SC, or maybe also relates to its original jurisdiction.

Another way Marshall’s argument isn’t air-tight: it’s possible that the constitutional grants of jurisdiction to the Supreme Court are not the exact or maximum jurisdiction of the court, they are the minimum jurisdiction of the courts. It’s possible the constitution is just saying that these jurisdictions cannot be removed from the Supreme Court.

So this conflict he has constructed between the statute and the constitution is not cut-and-dried.

[30:30]

So why is he constructing this conflict? Because it lets him also establish judicial review over legislative actions.

Because it lets him assert that this law is in conflict with the Constitution, and since it’s unconstitutional, it is the Supreme Court that gets to strike it down. This is the first time the Supreme Court strikes down a federal law. The second time is Dred Scott.

He then constructs judicial review in two steps.

His first step is to claim that the constitution is supreme. Part of that is based on the Supremacy clause (Article VI), itself pretty shaky reasoning because the supremacy clause makes mentions of laws as also being among the supreme law of the land.

He also argues, why have a constitution unless it’s enforceable. Also not a perfect argument. There are non-enforceable constitutions: legislative constitutional supremacy. Constitutions with hortatory clauses (clauses that describe goals but aren’t enforceable).

So he concludes that the constitution trumps democratically passed laws.

Then he addresses, how does the Constitution speak?

And of course he concludes that it is the court that is the final arbiter of the Constitution.

There are various points he makes here, a bunch of flimsy textual ones:

• the constitution grants the SC power over all cases arising within the US.
  • But not all constitutionality challenges need be brought by cases, and it’s possible some constitutionality challenges wouldn’t come via cases
• He feigns outrage at having to swear an oath on the constitution if the courts should be required to violate it.
  • Except, by Article VI, pretty much all officers and representatives have to swear oaths on the constitution

His real argument is who is best suited to interpret the Constitution.

The task of judging is one that lawyers who become judges are supposed to do.

He links the existence and supremacy of a written constitution with the task of judging, because comparing one body of law with another body of law, or one body of law with a body of facts, that’s already a key function of judges.

Marshall conspicuously omits a historical argument about whether judicial review was considered by the framers. The reason being, it was from recent memory, and it had been discussed by the framers. One of the reasons to doubt they intended it is, they did not include it in the constitution.

The constitution has other checks and balances–where one branch interferes with the working of another branch–why wouldn’t it have this one? England had a judicial review of this sort.

There’s a fancy latin phrase, expressio unius est exclusio alterius: the expression of one thing excludes others. If veto and impeachment are in there but judicial review isn’t, probably the framers didn’t intend to include it. Some historians think it was left out under the assumption that judicial review only mattered for really extreme deviations from the constitution. Some historians think review was to be achieved by popular sovereignty: when the constitution is grossly violated, the people will find a way to articulate the need for a solution.

[40:36]

So he didn’t invent the idea judicial review out of thin air, but he claimed the power for the court and exercised it.

So, Madison won the case. Why does Marshall go to such lengths to strike down this law? One answer is he wants to create judicial review.

But there was a political reason too. Madison was a no-show. If Marshall makes strong demands of Madison, does he think Madison will do anything? No. Marshall doesn’t have the power of the purse or the power of the sword behind him. If Marshall wants something to happen, he has to persuade the other branches. Making a ruling which tries to compel Madison to do something which Madison is certain not to do will only cement the court’s weakness.

So Marshall is not only aggrandizing the Court’s powers, he is doing so in a circumstance where he doesn’t test it. It sits on the books for 50 years–until the eve of the Civil War–as power, rather than, “awww, we asked him to do something and he didn’t do it and now we lost even more power”, right? It’s totally brilliant.

In some sense, this sets up a time bomb. Judicial review on the day of its creation has no legitimacy or force or cultural cachet. But the longer the power sits on the books, uncontested, the less likely the court is felt or assumed to be weak. Judicial review gains legitimacy with time and forgetting.

Marshall establishes

• that the actions of the executive branch can be reviewed by the court
• that the judiciary can also review laws passed by Congress
• that judges are the authoritative interpreters of the Constitution
• these expansions of the courts powers are done in a way that doesn’t require exercising it