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John Marshall
Most judicial scholars would agree that Marbury v. Madison is the great case
in United States constitutional law. With this case, Chief Justice John Marshall confirmed the Supreme
Court’s power to review the constitutionality of laws. But the idea of using the law and the courts to
restrain excessive government power is deeply rooted in our heritage. Centuries earlier in England, Sir
Edward Coke boldly confronted King James I with the assertion that the "King is under God and the
law." Throughout the revolutionary period Americans asserted that any infringement of their rights
was unconstitutional and void, and once they declared independence, codified these rights in written constitutions
with bills of rights.
How should you enforce the written guarantees of these rights? The American answer is judicial review.
Between the end of the American Revolution and the ratification of the Constitution, most Americans gradually
accepted this idea. After 1780 a number of states asserted judicial review; in fact, state courts disallowed
laws in at least twenty cases before 1803. Conservatives came to view judicial review as an excellent
way to curb radical legislatures, and advocates of the masses saw them as the best way to protect "the
people’s" rights from encroachment by the state. Both the New York Constitution of 1777 and later
the Pennsylvania Constitution specifically gave their highest courts the right to review the acts of the
legislature. Certainly the Founding Fathers believed in judicial review. The decision that there would
be a federal judiciary and it should be supreme was made early at the Constitutional Convention. During
the debates both supporters of the Constitution [Madison, James Wilson, Elbridge Gerry] and future opponents
of the document [George Mason, Luther Martin] agreed that the judiciary would have the power of deciding
if laws were constitutional. Even leaders opposed to judicial review saw no viable alternative. During
the state debates over ratifying the Constitution, both sides assumed that judicial review of laws was
an essential part of the new government. Concern about this prompted Yates to write several of his "Brutus"
letters, and caused Alexander Hamilton to pen Federalist No. 78 in reply. Thus when Marshall asserted
this power for the Supreme Court in 1803, he was not inventing something never heard of before.
Nevertheless, the Constitution does not explicitly call for judicial review by the Supreme Court. So where
does Marshall claim this right for the Supreme Court? Start with the Supremacy Clause, that the Constitution
is the highest law of the land. Connect that with Article III, which establishes the power of the Supreme
Court to decide cases. The Federal Judiciary Act of 1789 provides for Supreme Court review of state cases
concerning constitutionality of federal laws, and the Founding Fathers dominated the Congress that passed
this legislation. Add in Hamilton’s argument from The Federalist No. 78 and you can understand
Marshall’s reasoning. If courts are supposed to interpret the law and decide what it means, and the Constitution
is the highest law of the land, then it is the duty of the Supreme Court of the United States to say what
the Constitution means and strike down laws in conflict with the document. What hypothetical examples
did Marshall use to prove his point? Do you agree with his reasoning?
Marshall is ranked with Charles Evans Hughes and Earl Warren as the greatest chief justices in Supreme
Court history. Certainly he created a framework for interpreting the Constitution and governmental powers
that dominated the first third of the nineteenth century and affects us yet today. He also ended the practice
of every justice issuing separate decisions in favor of a united "opinion of the court,"
and initiated the conference system used today to hammer out consensus. Marshall was born in Virginia
and had a lengthy record of public service before serving on the court. He was an officer in the Continental
Army, a member of the Virginia Legislature and state ratifying convention, a special envoy to France,
secretary of war, and finally secretary of state before his appointment as chief justice in 1801. His
experiences, as well as his close relations with George Washington and Hamilton, made him a dedicated
nationalist and supporter of a strong central government.
This case arose out of the party turmoil of the 1790s, and was part of the first peaceful exchange of
government power between two parties in our national history. After the debacle of the 1800 elections,
the Federalists tried to assure themselves control of one branch of the national government. In the Judiciary
Act of 1801 and the Organic Act for the District of Columbia, the Federalists created more district courts
and also justices of the peace for the District. All would need to be staffed with reliable judges and
clerks, who would presumably all be good Federalists. Outgoing President John Adams and Secretary of State
John Marshall worked late into the night to nominate, get approved, and sign commissions for all of these
jobs. In the end, some of the "Midnight Appointments" were not delivered by Marshall, and were
still in his old office when the new secretary of state [James Madison] moved in. Thomas Jefferson and
his party were furious about these appointments, considering them an attempt to get around the decision
of the American electorate, and Jefferson also saw them as a personal attack on himself. He ordered Madison
not to deliver the commissions, and William Marbury sued in the Supreme Court to have his delivered, asking
for a writ of mandamus.
Read the decision carefully. Why did Marshall rule against granting Marbury his writ? In the eyes of the
court, did Marbury deserve his commission? How is Jefferson’s administration pictured in this opinion?
You can imagine how frustrating this decision was for Jefferson. Can you criticize the Supreme Court for
refusing to accept a jurisdiction and power not granted it in the Constitution?
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