One wacky case - Marbury v. Madison

I feel like talking about the most famous and probably the most important constitutional law case in U.S. history, Marbury v. Madison, decided in 1803. Even political oriented people who are not lawyers or political scientists may have heard of this case, such is its importance.
But, if you have heard of it, or you are even a lawyer who suffered through it in law school, you might not know that it was not only one crazy case, but involved some of the most important people of our history.

Here’s the question. If the government makes a law and the President signs it, and then challenges the law as unconstitutional, what makes the Courts able to make a decision, against the intent of the two other constitutional powers – the congress and the executive? It doesn’t say anywhere in the Constitution that the Court has the power to do this. This is what we call “judicial review".

And the case with which it (mostly) begins is the decision of the United States Supreme Court in 1803, some fourteen years after the constitution is ratified. That’s Marbury. It is the possibly the most important case in our history. It is usually the first case law students learn about in constitutional law classes.

Ironically, despite Marbury’s fame, it is not the first case in which the issue was discussed. Although ignored even by some scholars, Hylton v. U.S. was decided in 1796 when the chief judge was Oliver Ellsworth. It probably did not achieve Marbury’s fame because the court determined that the law was constitutional and also because the judges at that time did not tend to write one opinion – per curium, by the court, but seriatum, in a series. At the time Hylton was argued and heard though, it was considered quite important as it was argued for the United States by Alexander Hamilton, if not the greatest lawyer of his day, certainly among the greatest. Arguably, his legal influence impacts us to this day (not to mention a lot of other stuff he did). One of the judges wrote about Hamilton thus:

“Mr. Hamilton spoke in our Court, attended by the most crowded audience I ever saw there, both Houses of Congress being almost deserted on the occasion. Though he was in very ill health, he spoke with astonishing ability, and in a most pleasing manner, and was listened to with the profoundest attention. His speech lasted about three hours."

Law schools tend to teach the case in a legal manner, not a historical one. My belief is that understanding what was going on historically at the time makes the case so much clearer and when I briefly taught con law, that’s the way I approached it.

It starts in 1801 with two former best buddies, President John Adams, in the closing days of his presidency, and Thomas Jefferson, the vice president, who ruthlessly defeated Adams and also Aaron Burr, who was still a popular politician and perhaps Hamilton’s rival as an attorney. Their friendship had developed when they were diplomats after the Revolutionary War was over, but once they became political rivals – Adams a moderate Federalist (federal power and pro-British) and Jefferson a Democrat-Republican (state power and pro-French), their dislike became palpable. No Jefferson lover, I lay the blame squarely on him, as he did his best to sabotage Adams in every way he could. But, I will not go off on this tangent. Years later, they became close friends again as old men, but through now celebrated correspondence only over the course of about 14 years.

President and Vice President were almost certain to be political enemies back then as the system for electing them was different. They did not run together as a team. They competed for the top spot and number two was vp.

Adams had a bad presidency by most estimates at the time and he did not enjoy himself, spending as much time in Massachusetts as he could. He didn’t even finish second as Burr and Jefferson tied in electoral votes

Adams has to leave in March (back then it wasn’t January) but in the beginning of that year he nominated his secretary of state, John Marshall, a very important American I can’t even begin to go into much here, but earlier he was a war hero, then the hero of the XYZ affair (look it up), for the chief Justice slot on the Supreme Court. He was confirmed just before the House of Representatives chooses Jefferson over Burr. But, I’m not going off on that tangent either. It’s a fascinating story where Burr, not for the only time, shows himself more honorable than either the celebrated Hamilton or Jefferson, who, although usually political enemies, worked together so Jefferson would be president.

Although Chief Justice, Marshall continues on as secretary of state under Adams. He swore in Jefferson as president in his capacity as chief justice. In fact, though the two were cousins, Jefferson and Marshall can’t tolerate each other, Marshall, a minor war hero who had been close with George Washington believed the older Jefferson a shirker and liar (and I agree). Marshall’s mother in law was in fact Jefferson’s first love and he is used to hearing him badmouthed by her. But, they both tried to calm the partisanship about and at Jefferson’s request, he even agrees to stay on briefly as secretary of state until Madison replaced him.

Just about on the eve of Jefferson being sworn in with the new Republican congress, outgoing majority federalist congress passed a circuit court act, where Supreme Court judges which made some changes unimportant here and new judges and justices of the peace (more important then than now) are appointed. They were, of course, federalists. In fact, at the time Jefferson comes to office most judges are Federalists. This really pisses off the Democrat-Republicans b/c they are already angry that the judge’s have been unfairly prosecuting them through the unpopular Alien and Sedition Acts.

William Marbury is among one the appointed on March 2d. He was a Federalist who supported Adams. The nominees are confirmed by the Senate and, super-duper ironically, it is the chief justice/secretary of state, John Marshall, who affixes the seals the next day.

Here’s the rub. In all the commotion, after affixing the seals, Marshall never sends them out. Two weeks later he writes: “I should . . . have sent out the commissions which had been signed and sealed but for the extreme hurry of the time.”

Ironically, Jefferson later finds the commissions lying on a table top in Marshall’s office. He does not deliver them.

In any event, Jefferson and Madison come in to power and refuse to allow the appointments. Jefferson actually wanted to turn down the partisanship more and made a very conciliatory inaugural speech. The Democrat-Republicans then changed the changed the circuit court act and abolished two Supreme Court terms, so that only the February term remained, and that had already passed that year. Actually, years later, Marshall himself said the new act was a great improvement. Under the new act he can determine how many Justices are appointed and he reduces the number, but keeps some of those Adams appointed. Not Marbury.

Nine months later Charles Lee, who was Washington and Adams attorney general, brings a petition in the Supreme Court for Marbury and a few others, asking the court for an order directing the Secretary of State, James Madison, to deliver the commission to him. The technical name for this is a writ of mandamus – the court ordering a government official to do something. They based the request on a rule found in the Judiciary Act of 1789, passed in the first congress.

Ready for it to get weird? Marshall, the former secretary of state who didn’t have the commissions delivered is the chief judge who will preside over the trial. Perhaps it wasn’t so odd in those days, but Levi Lincoln (distantly related to President Lincoln, still unborn), who is the new attorney general, is also there, although nothing much is going on, and Marshall asks him what he thinks about it. Lincoln has no instructions as to what to do and he leaves it to the ct. After a discussion, Marshall gives an order that the current secretary of state, James Madison, must show cause before the court why he doesn’t have to do deliver the commissions. They set it down for the next term, in 1802. There is nothing in the Jefferson’s or Madison’s letters indicating that they were concerned about this.

So, Marshall, who should be the chief witness, is the judge of a trial (and, if you are confused, the Supreme Court no longer does trials, but it did back then). Madison has not even put in papers. But, Marbury’s attorney, Lee, is directed to prove that the commissions were signed and sealed. Of course, no one knows this better than Marshall, who did it, but he’s the judge.

How does Lee prove his case? The senate had refused to turn over its journals proving that the commissions had been made. Lee calls a couple of State department clerks who indicate that maybe some commissions had been signed.

It gets crazier, at least by our standards. Next Lee calls Levi Lincoln, the attorney general, as a witness. He does that because Lincoln was an interim secretary of state before Madison was confirmed. Lincoln thought he doesn’t have to testify because of what we now call executive privilege. He requests that he can answer in writing. Marshall agreed and 4 questions were given to him. As a side note, it is interesting that Marshall respected the notion of executive privilege and that Lincoln deferred to the court’s authority. Both could have gone otherwise. Lincoln answered in writing that he knew they were made and sealed, but doesn’t know if one was made out for Marbury. He apparently couldn’t answer what happened to the commissions afterwards because he didn’t know if Madison had them. If you can stand one more strange thing, James Marshall, John’s brother, put in an affidavit stating that he went to deliver them for his brother “but finding that he could not conveniently carry the whole” he returned “several of them” to his brother’s office.

In 1803 the court issued its decision which would make the Supreme Court almost, if not quite as powerful as the other two branches. This was not what had been predicted by Alexander Hamilton, who stated in the Federalist Papers that it was the weakest branch.

The opinion was per curium, as most were for the some 34 years Marshall was chief justice. The court’s decision was not only ground breaking, as it found a congressional act unconstitutional, but it was a brilliant piece of work by Marshall, who couldn’t be sure that Jefferson, who disliked him, and also disliked the federalist judiciary, would comply with any order the court issued.

Marshall and the court ruled that the petitioners had a right to the commission as it was consented to by the senate and was signed and sealed by the secretary of state (who, of course, was the guy writing the decision). Delivery of the commission was determined to be merely a convenience.

Then the court made a ruling which was of quintessential importance to the notion of civil rights. If a person has a right under the law and that right has been violated, has a right to a remedy.

So, problem solved, right? No. Here’s how Marshall got around the problem of whether Jefferson would obey the court’s order and at the same time establishing the power of the court to declare what’s constitutional.

The Supreme Court was given certain powers under the constitution including to be the court of original jurisdiction (in other words the trial court) in case between states or ambassadors. The law in question provides that the Supreme Court can issue the writ of mandamus being sought by Marbury. However, since the law provides for something that is not allowed in the constitution, it is unconstitutional.

That seems so obvious to us today because we have had it that way for over 200 years. It is taken for granted in the law now. Even Justice Scalia who now sits on the court, and believes Marbury was in error, stated firmly in his senate confirmation hearing that he would never overrule it.

And, there is some background for it. Hamilton, who was Marshall’s legal mentor (Marshall considered himself a child in comparison to Hamilton legally) even though they were about the same age – Hamilton’s year of birth is uncertain - wrote in Federalist no. 78: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

But, because the law was unconstitutional, then Marbury, through no fault of his own, had brought the case in the wrong court. He lost on a technicality and Marshall never had to worry whether Jefferson would obey a Supreme Court order if he directed Madison to deliver the commissions.

And Marbury? He never brought the action elsewhere and disappeared to some degree into history. My investigation into what happened to him ran into some walls. There isn’t a lot out there. But, the best I can find indicates that he died a wealthy banker years later. So, don’t feel so bad for him.

Marshall lived a long time and was the force behind many other cases which extended the power of both the judiciary and the congress. He died in 1835. Of the important figures in the tale, Madison outlived him by about a year.

What a story, huh? Adams, Jefferson, Hamilton, Madison, Marshall and even Aaron Burr. The judge being the one who should have been the witness. His own brother and even the attorney general testifying through affidavits. These are conflicts of law that would curl the hair of a law professor today.

Now, who says law is boring?