Why Marbury v Madison Still Matters

The Election of 1800 dramatically changed the fabric of the new United States. A bloodless change of leadership enabled Republican Thomas Jefferson to defeat the incumbent Federalist president John Adams. Federalists also lost control of the Congress. Only the third part of the new government, the Judiciary, represented Federalist ideology, in part due to the “midnight” judicial appointments made by Adams. One of those appointments went to William Marbury.

 

When the new Secretary of State for Jefferson, James Madison, refused to deliver the commission, Marbury looked to the Supreme Court for a remedy, relying upon Section 13 of the Judiciary Act of 1789. Thus was born the case Marbury vs. Madison, which every history and political science student has come to equate with the principle of Judicial Review.

 

The Independence of the Federal Judiciary Must be Inviolate

 

The role of the Judiciary was already being debated in the Congress at the time Chief Justice William Marshall delivered his opinion. According to Constitutional scholar Alfred Kelly, it was, “…his most celebrated opinion, if not his most important one.” Marshall began with the question: did Marbury have a legal right to the commission? The commission had been signed and sealed as well as approved by the Senate. These actions made the commission legal, whether it was delivered or not.

 

Political Aspects of the Case

 

The Marbury case, however, had the ingredients of a significant political battle, pitting the Legislative and Executive branches against the Judiciary. In his Farewell Address, President George Washington had warned against factionalism or political parties. Marshall knew that if he directly attacked Jefferson or the Congress, the High Court could be weakened; there was no guarantee Jefferson would comply with Marshall’s decision.

 

Did Marbury have the Expectation of a Remedy?

 

Thus, Marshall addressed the question of whether Marbury had a remedy under the Judiciary Act of 1789. Although Section 13 allowed petitioners to bring actions before the court in order to force government officials to do their duty, in this case a write of mandamus, this action violated the Constitutional nature of the court as an appellate court in such matters, as opposed, for example. to a trail court. The Supreme Court had no jurisdiction in the case of William Marbury. On that basis, Marbury could not receive his commission and the Judiciary Act of 1789 was declared unconstitutional. The Supreme Court was not the first court Marbury should have brought his complaint to.

 

In the Strictest Definition, Did Marbury v. Madison Define Judicial Review?

 

Declaring an act of Congress as unconstitutional has been equated with the term Judicial Review for much of constitutional history,  although Kelly, writing in the mid-twentieth century, states that, “the importance of Marbury vs. Madison in the history of judicial review has been somewhat exaggerated.” Various state courts had already voided state legislative acts and Marshall’s opinion never asserted judicial review as a constitutional mandate.

 

The importance of the Marbury case speaks to the importance of the Constitutional separation of powers and carries a subtle warning against using the Judiciary to achieve political goals. This concern continues. On April 26, 2013, for example. Former Associate Justice Sandra Day O’Conner stated that the Supreme Court should not have heard the 2000 case Bush vs. Gore. That decision continues to be viewed by many Americans as one supporting a particular political agenda.

 

The Post Modern Surpreme Court Attempts to Dodge Politics

 

During an April 9, 2013 interview with CSPAN, Associate Justice Clarence Thomas, answering questions regarding his view of an African American Chief of State, finally argued that, “I like history…I don’t understand politics.” In 1803, John Marshall may have been more political than either O’Conner or Thomas today, but his opinion in Marbury demonstrated a brilliant resolution designed to remind the other two branches of their Constitutional prerogatives while strengthening the Court as an independent entity that would not become a “political football.”

 

Playing Fast and Loose with the Law of the Land

 

During the Great Depression, President Franklin D. Roosevelt devised a plan to enlarge the High Court, which declared some of his Depression era programs unconstitutional. This action was strenuously opposed by the Congress, including key members of his own party, as well the opinion of the American people. Vetting potential justices, a practice begun with almost circus-like hearings, began in the mid-twentieth century when the divide between conservatives and liberals became more pronounced.

 

During the time of Jefferson and up until the end of the Civil War, both the Congress and the Chief Executive debated the constitutional merits of a bill. Acts of Congress were vetoed by presidents on the basis of constitutionality. Marbury was one early and brilliant attempt to preserve the equilibrium of the three branches of government and a reminder that constitutionality was the responsibility of every branch of the new government.

 

References:

 

Alfred H. Kelly and Winfred Harbison, The American Constitution: Its Origins & Development, fifth edition (New York: W.W.Norton & Company, 1976)

 

Kristen A. Lee, “Clarence Thomas: ‘Always Knew’ black U.S. President must be ‘approved by the elites’ Daily News, May 3, 2012  accessed May 6, 2012

 

Steven Nelson, “Sandra Day O’Connor Now Doubts Wisdom of Bush v. Gore,” US News and World Report, April 29. 2013, accessed May 6, 2012

 

Page Smith, The Shaping of America: A People’s History of the Young Republic, Volume Three (New York: McGraw-Hill Book Company, 1980)

(published in 2012 in Decoded Past. Copyright owned by Michael Streich; any reprints in any form require written permission)