John Marshall's Selective Use of History in Marbury v. Madison

SUSAN LOW BLOCH and MAEVA MARCUS


EDITOR'S NOTE: The following article is based substantially upon materials collected by the Documentary History Project of the Supreme Court of the United States, 1789-1800. The project is co-sponsored by the Supreme Court Historical Society and the Supreme Court of the United States and funded through the Supreme Court, the National Historical Publications and Records Commission and the generosity of various private donors.

This article, which first appeared in the Wisconsin Law Review, would not have been possible without the research conducted by the Documentary History Project's staff members: Maeva Marcus, James Buchanan, Christine Jordan, James Perry, Steven Tull.

Wisconsin Law Review Editor's Note:

I. Introduction

Marbury v. Madison[1] perhaps the most famous case in American constitutional history is renowned for a variety of reasons but rarely for its selective use of precedent.[2] The first case in which the Supreme Court, speaking unanimously through Chief Justice John Marshall,[3] held an Act of Congress unconstitutional, declared judicial authority to order executive officials to perform specific statutory duties, and laid the foundation for the modern "political question" doctrine,"[4] Marbury is considered a masterpiece of judicial statesmanship. Chief Justice Marshall is both praised and criticized for the clever selection and ordering of issues that enabled him to assert judicial power over both the legislative and executive branches, while simultaneously insulating these controversial assertions from confrontation and defiance.[5] As Professor McCloskey noted: "The decision is a master-work of indirection, a brilliant example of Marshall's capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking in another."[6]

What is rarely noted about Marbury though, is Marshall's striking use, or misuse, of history. Yet, recent research on Supreme Court precedents from the initial ten years of its existence suggests that the Chief Justice's clever craftsmanship went beyond skillfully selecting and ordering issues. Our analysis of these earlier cases suggests that Marshall took substantial liberties with these precedents.

The facts of Marbury are well-known. Federalist William Marbury had been selected to be a justice of the peace by outgoing Federalist President John Adams. Marbury's commission had been signed and sealed just hours before Adams left office but had not been delivered. The case arose when Marbury petitioned the Supreme Court to issue a writ of mandamus ordering the new Republican Secretary of State, James Madison, to deliver the commission to him.[7]

In deciding whether the Court could grant Marbury the relief he sought, Chief Justice Marshall confronted several difficult legal questions, two of which concern us here:

This was not the first time the Supreme Court had faced these inquiries. Similar issues had arisen in suits dealing with Congress's pension programs for wounded Revolutionary War veterans. Marshall knew of these cases and referred to them, but his use of them is remarkable. He discussed an unnamed case dealing with these pension programs, but it appears that he in fact merged several different proceedings to create this single case. Thus, the only American precedent the Chief Justice relied on in the entire Marbury opinion[8] apparently did not exist as he described it. Marshall employed this conflated case to support his first conclusion that a writ of mandamus could issue to order a cabinet official to do his duty but disregarded the same proceedings when they conflicted with his second conclusion that the Supreme Court could not issue such a writ in the exercise of its original jurisdiction. This Article will examine this notably selective and arguably disingenuous use of history by the Chief Justice. As we will show, the initial misstatement of precedent may have been inadvertent; the convenient omission of the same precedent a few paragraphs later could not have been.

II. The Invalid Pension Cases

Before we discuss the confusion in Chief Justice Marshall's treatment of precedent in Marbury it is necessary to recount briefly the history of the disabled veterans cases. The story begins with Congress's passage, on March 23, 1792, of "An Act to provide for the settlement of the Claims of Widows and Orphans barred by the limitations heretofore established, and to regulate the Claims to Invalid Pensions."[9] The act described the procedure by which a disabled veteran could obtain a pension from the United States. The applicant was required to appear before the Circuit Court of the United States for the district in which he resided[10] and prove that he had been wounded during the Revolutionary War in the service of the United States and had not deserted.[11] Upon receipt of such proof, the circuit court had to inquire into the nature and degree of the disability and recommend to the Secretary of War whether the applicant should be placed on the pension list and how much of a pension he deserved. When the Secretary received all this information, he was to add the applicant's name to the pension list, provided he found no reason to suspect any "imposition or mistake." If he had such suspicions, the Secretary was empowered to withhold the applicant's name from the list and was required to report his decision to Congress at its next session.[12]

The judges of the circuit courts refused to proceed under the Invalid Pensions Act of 1792, claiming that the duties assigned to the courts were not of a judicial nature and, therefore, that the courts had no constitutional power to perform them.[13] As explained by the judges of the Circuit Court for the district of New York:

The judges of the New York circuit court, John Jay, William Cushing, and James Duane, then declared that, in view of the benevolent purposes of the Act, they would agree to conduct the invalid pensions business as commissioners:

These judges, as well as some others, then heard invalid pension claims as commissioners.

The cases that formed the precedent referred to in Marbury v. Madison arose as a result of the judges' willingness to serve as commissioners under the 1792 Act. From April, 1792, until Congress passed a new invalid pension law in February 1793,[17] the judges – acting as commissioners and not as a circuit court–processed the claims of Revolutionary War veterans in the manner prescribed by the 1792 Act. Congress, in the course of that year, became convinced that the judges' doubts about the constitutionality of the Act were well-founded;[18] the new law replaced the circuit courts with district judges and reduced their role to merely hearing the evidence. Wishing to settle the question of the validity of pensions granted under the 1792 law, Congress also ordered the Secretary of War and the Attorney General to seek an adjudication from the Supreme Court of the United States of rights claimed under the Invalid Pensions Act of 1792.[19] As will be seen in Part III,[20] the various proceedings brought to determine the legitimacy of actions taken by the circuit judges as commissioners became the raw material from which Marshall fashioned his invalid pension case in Marbury.

Attorney General Edmund Randolph quickly responded to Congress's directive to seek a judgment from the Supreme Court. In August, 1793, the term of court after the 1793 Act to Regulate the Claims to Invalid Pensions became law,[21] Randolph moved the Court for a mandamus to the Secretary of War commanding him to put on the pension list of the United States an applicant whose claim had been approved by the judges acting as commissioners. Randolph did not appear as counsel for any particular applicant, and two of the five justices in court, Randolph reported in a letter to the Secretary of War, "expressed their disinclination to hear a motion in behalf of a man who had not employed me for that purpose, and I being unwilling to embarrass a great question with little intrusions, it seemed best to waive the motion until some of the invalids themselves should speak to counsel."[22] The Attorney General urged the Secretary of War to write to some of the invalid veterans whom the judges had certified as eligible for pensions to inform them of the way matters stood. Although there had been an invalid veteran in court when Randolph made his motion, the invalid had failed to identify himself to the Attorney General until after the Court had adjourned, too late for Randolph to appear as his counsel.[23]

At the February 1794 term, the Supreme Court heard two cases dealing with invalid pensions, Exparte Chandler and United States v. Yale Todd.[24] On February 5, William Edmund, counsel for John Chandler, moved for a mandamus to the Secretary of War ordering him to put Chandler on the pension list of the United States in conformity with the recommendation of James Iredell and Richard Law, judges of the Circuit Court of the United States for the district of Connecticut sitting as commissioners. Chandler, a Revolutionary War veteran resident of Connecticut, had presented to the judges of the circuit court affidavits indicating that he had been disabled during the war. In addition, he produced depositions stating that he had resigned his commission in the Continental Army because of his infirmities.[25] The judges apparently had accepted the evidence Chandler submitted and certified his eligibility to be placed on the pension list, but Secretary of War Knox had not done so. The Supreme Court told Edmund that it would hear argument on his motion as soon as the case presently before it was concluded.[26]

Cryptic entries in the minutes of the Supreme Court give little information about the substance of the argument in Chandler. On February 7, the Court heard Edmund on "the subject of his motion made on the 5th instant."[27] Almost one week later, on February 13, the Court again heard "argument of counsel on the motion of Mr. Edmund for a mandamus to the Secretary of War."[28] The very next day the Court announced its decision: "The Court having taken into Consideration the motion of Mr. Edmund of the 5th instant, and having considered the two Acts of Congress relating to the same, are of opinion that a Mandamus cannot issue to the Secretary of War for the purposes expressed in the said motion.[29] Based on this brief entry in the minutes, no rationale for such a decision can be advanced with any certainty although, as will be seen, several are plausible.[30]

The second invalid pension case on the Supreme Court's docket in February 1794, United States v. Yale Todd, was brought specifically in response to Congress's directive to seek an adjudication of rights claimed under the Invalid Pensions Act of 1792. Because Randolph's motion for mandamus had failed in August, 1793, newly-appointed Attorney General William Bradford sought a new hearing before the Court.[31] The case is not reported and there is only one entry dealing with it in the minutes of the Supreme Court.[32] Our knowledge of the case is greatly amplified, however, by the existence of a copy of the papers filed in the Yale Todd suit that Chief Justice Taney ordered appended to the report of United States v. Ferreira in 1852 [33]. These papers note that on February 15, 1794, William Bradford, Attorney General of the United States, came before the Court[34] and informed it that on May 1, 1793, Yale Todd of North Haven, Connecticut was indebted to the United States in the sum of $172.91 "for so much money had and received."[35] Todd had obtained this money as a result of the favorable action on his pension claim taken by the judges of the Circuit Court for the district of Connecticut and the Secretary of War in May 1792. Bradford stated that Todd had promised to repay the United States but had not done so despite having been asked several times.[36] John Hallowell, attorney for the defendant, declared that his client had never agreed to repay the United States.[37] Presumably the theory underlying the suit was that Todd's pension had been improperly granted, because the judges, acting as commissioners, had no authority to grant a pension. The suit was a standard action on the case for money had and received, with a plea of non- assumpsit.[38] In the final paragraph of the papers submitted in court the Attorney General and counsel for Todd agreed that

A single entry in the minutes of the Supreme Court records the history and the decision in United States v. Yale Todd: "The Pleadings; and agreement of the Attorney General of the United States and the Attorney for the defendant being read and filed; and the Case argued the Court having also taken the same into Consideration are of opinion that Judgment be entered for the plaintiff in the above suit."[40] The Attorney General communicated the significance of this result to the Secretary of War in a letter dated the day that the decision came down.

The Secretary of War then related this result to Congress in his report of February 21, 1794. The Secretary noted Attorney General Randolph's ineffective attempt to obtain an adjudication of the Supreme Court in August, 1793, and Attorney General Bradford's recent successful litigation in which the Court had decided that "the determinations of the commissioners were held to convey no legal rights to the invalids claiming under them."[42] As we will argue in part III, the fact that neither the Secretary of War nor the Attorney General discussed the Chandler case suggests that the government had had nothing to do with instituting Chandler's motion and did not consider it part of the government's efforts to settle the question of the invalid pensioners' legal rights under the 1792 Act.

III. Marshall's Selective Use of Precedents in Marbury

When William Marbury petitioned the Supreme Court to issue a writ of mandamus ordering the Secretary of State to deliver Marbury's commission, Marshall divided his analysis into three questions:

After answering the first two questions in the affirmative,[44] Marshall turned to the third. He subdivided this question into two parts: (a) Was a writ of mandamus directed to the Secretary of State the appropriate remedy? (b) Could the Supreme Court issue such a writ?[45] Marshall knew that the earlier proceedings involving the invalid pension acts were relevant to the first of these two inquiries and used them, but he discussed those proceedings imprecisely More remarkably when those same proceedings undermined his answer to the second question, he ignored them.

A. Marshall's Selective Scrambling of Precedent

To support his view that a court could issue a writ of mandamus to a cabinet official, Marshall referred to an unnamed case. But there was no such case, at least not as he described it. Marshall stated the case as follows:

Marshall appears to be describing a single case, but there is no one case that exactly fits his description. As we will show, it is likely that the pension "case." Marshall had in mind was a composite of the three different pension proceedings set forth in Part II. The form of the action, the parties in the "case," and the motivation for the litigation – a mandamus motion brought by the United States Attorney General against the Secretary of War to carry out Congress's directive to obtain a Supreme Court adjudication of rights claimed under the 1792 Act – seemed to be derived from Attorney General Randolph's mandamus action pursuant to Congress's 1793 directive. The disposition of the "case" – denied because the commissioners' reports conferred no legal right – appears to be borrowed from Chandler's motion for a writ of mandamus. Finally the legal consequence of the "case" –requiring all veterans recommended by commissioners' reports to start anew under the 1793 Act – seems to have come from the suit brought by Attorney General Bradford against Yale Todd.

Marshall's "case" involved a motion for a writ of mandamus from the Supreme Court to the Secretary of War. As related earlier, two such actions had been initiated. Attorney General Edmund Randolph brought one in August, 1793 and veteran John Chandler instituted one in February 1794. It is not clear which, if either, of these Chief Justice Marshall had in mind.

One's first impression is that he was referring to Chandler's motion in 1794. Marshall said the mandamus was moved to direct the Secretary of War "to place on the pension list, a person stating himself to be on the report of the judges."[47] This sounds like a motion made by an identified person on his own behalf.[48] Randolph had made his motion as Attorney General of the United States, without being employed by any veteran, and in fact, apparently for that reason[49] had not been allowed by the Court to proceed with his motion. Marshall's wording suggests he was thinking not of Attorney General Randolph's motion but of Chandler's motion on his own behalf

But the opinion also suggests that the "case" was brought to implement the 1793 congressional directive ordering the Attorney General and the Secretary of War to seek a Supreme Court adjudication on the validity of veterans' claims under the 1792 Invalid Pensions Act. Again, two cases fit that description, but neither seems to be Chandler's motion. Attorney General Randolph's motion in 1793 was an effort to carry out Congress's directive. Randolph so characterized it in his letter to Secretary of War Knox on August 9, 1793:

Subsequently Randolph's successor, Attorney General William Bradford, made another effort to carry out Congress's directive by bringing suit against Yale Todd in February 1794. But that was not a mandamus action. Chandler's motion, by contrast, does not appear to have been inspired or directed by the highest law officer of the United States.[51]

Marshall's characterization of the decision in the "case" suggests that he was reporting the result in Chandler but giving the rationale from Yale Todd. Marshall wrote:

Marshall was describing a case where the Court denied the writ not because it could not issue a writ of mandamus to a cabinet officer but because mandamus was inappropriate under the circumstances of the particular case. He obviously was not recounting the mandamus motion of Attorney General Randolph since that motion was never ruled on; indeed Randolph never even completed the motion. Marshall may have been describing the ruling in the Chandler case. The Court in Chandler said that "having considered the two Acts of Congress relating to (invalid pensions, it was] of opinion that a Mandamus cannot issue."[53] This statement is certainly consistent with a suggestion that the denial was specific to the pension laws and was not a statement regarding the Court's authority to mandamus cabinet officers generally.

However, Marshall also suggested that a mandamus was inappropriate in the "case" he was discussing because the report of the commissioners conferred no legal right and that, after the Court's ruling, all persons recommended by commissioners' reports had to follow the newly revised procedures of the 1793 Act to get onto the pension list. This description may fit Chandler but not nearly as well as it fits Yale Todd. The Court may have denied Chandler the writ because, as Marshall suggested, the commissioners' report conferred no legal right. In fact, there are several theories under which the Court could have so concluded and which would have meant that all applicants in Chandler's position – recommended by the commissioners but not listed by the Secretary–would have to proceed anew under the revised procedures of the 1793 Act.[54] However, it is also possible that the Court denied Chandler's motion, not because the commissioners' reports generally conferred no legal right, but because there were reasons specific to Chandler justifying the Secretary's decision not to put Chandler's name on the list.[55] Had Chandler's motion been denied for any of these reasons, one could not conclude that all veterans recommended by reports of commissioners would have to start anew under the 1793 Act.

In contrast to the uncertainty regarding the Court's rationale in Chandler there is no question that in Yale Todd the court did conclude that the commissioners' report conferred no legal right. Attorney General Bradford so characterized the decision in his report to Secretary Knox immediately after the Todd decision: "The Court has this day determined that such adjudications of certain persons styling themselves commissioners . . . are not valid."[56] Similarly in Knox's report to Congress he noted that the Court in Yale Todd had decided that "the determinations of the commissioners were held to convey no legal rights to the invalids claiming under them."[57] Thus, Marshall's characterization unambiguously describes the holding of Yale Todd. Again, however, that was not a mandamus action.

Marshall's description of the legal consequences of the "case," though again ambiguous, also suggests he was thinking of Yale Todd, not Chandler Marshall wrote: "the judgment, in that case, is understood to have decided the merits of all claims of that description."[58] It is unclear to what claims he was referring. If Marshall meant only claims of veterans who were recommended by the commissioners' reports but who were not placed on the pension list by the Secretary of War, then, if one gives Chandler the broadest of all possible readings, the "case" Marshall describes may be Chandler However, several factors suggest that Marshall's phrase "claims of that description" designated a larger class of claims--namely all claims based on the 1792 Act including those of persons the Secretary of War had already placed on the pension list. The "case" Marshall had in mind was, he suggested, brought to carry out the 1793 congressional directive to the Attorney General to obtain a Supreme Court adjudication of the validity of rights claimed under the 1792 Act and Congress wanted a determination of the validity of all claims under that Act.[59] Moreover, Marshall indicated that after the judgment in the "case," it was necessary for all persons recommended by the commissioners' reports to start again with Congress's new procedures.[60]

If Marshall had this larger class of claims in mind, then his characterization described the consequences of Yale Todd, not Chandler The decision in Chandle, even read most broadly settled, at most, the rights of veterans who had been recommended but never placed on the pension list. It is only Yale Todd that required all those recommended by commissioners reports, including those already successfully placed on the pension list, to begin anew Thus, Marshall's portrayal of both the reasoning and the consequences of the "case" seems to fit Attorney General Bradford's assumpsit action against Yale Todd better than it does Chandler's mandamus motion.

That Chief Justice Marshall's mandamus case may never have existed but is instead a composite of three different proceedings is interesting but not shocking. None of these three cases was reported. Getting information on cases was a far-cry from the modern day use of Lexis and Westlaw.[61] Marshall probably was relying on the argument of Marbury's counsel, discussions of the invalid pension cases in the congressional debates on the repeal of the Judiciary Act of 1801,[62] and the memories of the two Justices who had been on the bench in 1793 and 1794, William Cushing and William Paterson.[63] Marshall also may have been depending on his own recollection of these events, even though they had occurred nine or ten years earlier while he was engaged in private practice in Richmond, Virginia.[64]

Moreover, Marshall's scrambling did not seriously distort history; he could have made most of his points even with an accurate portrayal of the proceedings. Nonetheless, one cannot ignore the fact that Marshall apparently chose not to give his "case" a name, did not specifically mention the name "John Chandler" anywhere in the opinion, and portrayed a composite case that offered more effective precedent than an accurate depiction of the three proceedings would have provided.[65] Had Marshall focused on Chandler's motion accurately and not relied on convenient borrowings from Randolph's motion and the suit against Yale Todd, his argument would have been less forceful and less neat for several reasons. First, it would have been difficult to suggest that the head of an executive department and the country's highest legal officer were behind the suit.[66] Second, while Marshall could have contended that the Supreme Court denied the writ, not because mandamus could not be addressed to an executive official but because the commissioners' report conferred no legal right, Marshall would have had to acknowledge that the Court's statements were, in fact, ambiguous.[67] Finally Marshall could not have suggested that the judgment decided the fate of all veterans recommended by the commissioners or that it settled all questions of rights under the 1792 Invalid Pensions Act.

By scrambling several proceedings, either knowingly or inadvertently Marshall created useful precedent.[68] However, even more remarkable is the way he disregarded the same precedent only a few paragraphs later when it undermined his jurisdictional argument.

B. Marshall's Convenient Omissions of Precedent

Having concluded that mandamus was the appropriate remedy for Marbury, Marshall turned to the question of the Supreme Court's power to grant such a remedy Part of Marshall's genius in Marbury as commentators have often noted, was his ability to assert power over the executive without providing an opportunity for anyone to object to or to defy the Court.[69] Marshall accomplished this by declaring that the Court had no jurisdiction in the case. He decided that section 13 of the Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus to executive officials but that article III of the Constitution did not permit Congress to grant such authority to the Court. Thus, by simultaneously assuming and rejecting power, Marshall not only asserted authority over the executive, but over the legislature as well.[70]

As both admirers and detractors have observed, Marshall had to work hard to find this conflict between the Judiciary Act and the Constitution.[71] It would have been easy to interpret section 13 in such a way as to avoid having it confer original jurisdiction on the Court[72] or to read article III to permit Congress to move cases from the Supreme Court's appellate jurisdiction to, its original jurisdiction.[73] In light of the fact that many of the drafters of section 13 were the same individuals who had participated in the Constitutional Convention, the existence of a conflict between the two documents was neither likely nor obvious.[74] Yet, Marshall carefully ignored that fact, notwithstanding his willingness to embrace the point on the occasions when it was more useful.[75]

But Marshall did more than ignore the fact that it was unlikely that the same men who had drafted article III in 1787 could unwittingly enact a conflicting jurisdictional statute only two years later. He also totally disregarded the fact that the pension "case" that he had just relied on in his mandamus discussion appeared to raise the same jurisdictional problem he faced in Marbury Whichever mandamus action one considers, whether the one brought by Attorney General Randolph or the one brought by the veteran Chandler, it was an original motion in the Supreme Court seeking a writ of mandamus directed to an executive official. Marshall could not have been unaware that the jurisdictional posture seemed to be identical to the one in Marbury His description of the pension case made the identity obvious. He simply ignored the obvious.[76]

Marshall also ignored the fact that, in addition to the Randolph and Chandler motions to mandamus the Secretary of War, the Court had entertained another case in which it was asked to issue a writ of mandamus against an executive officer and the Court never questioned the constitutionality of such jurisdiction. In 1794, the Supreme Court in United States v. Hopkins, [77] considered a motion for a writ of mandamus to direct John Hopkins, Commissioner of Loans for the district of Virginia, to allow one Richard Smyth to subscribe to a loan authorized by Congress. After "argument and full consideration," the Court denied the motion because "the right claimed by the petitioner in the present case does not appear sufficiently clear to authorise the Court to issue the Mandamus moved for."[78] Jurisdiction apparently was never questioned.

Inadequate reporting of the early cases might explain Marshall's scrambling of precedents; it cannot, however, explain why he ignored the conflicts these cases appear to present. He clearly knew of the pension case (or cases) because he had just cited it (or them) only a few paragraphs earlier. He was also clearly aware of the existence of other mandamus motions in the Supreme Court that presented similar jurisdictional issues. In oral argument, Charles Lee, attorney for Marbury and former Attorney General of the, United States,[79] cited both Chandler and Hopkins and noted that on these occasions, as well as on several others, the Court had entertained mandamus motions without questioning its jurisdiction.[80] Lee observed:

Marshall, however, never mentioned any of these cases in his opinion.

Why did he make no attempt to distinguish them? It is not that distinctions were unavailable. Marshall could have tried to dismiss these precedents by noting that the jurisdictional issues in these cases were not argued and were decided at most sub silentio. He could have asserted that the Court failed to discuss the jurisdictional issues in the prior mandamus cases because it was able to deny the motions for other reasons. When Marshall found himself in a comparable situation in United States v. More,[83] that is, confronted by precedent in which the Court had exercised jurisdiction where Marshall believed no jurisdiction existed, he distinguished the conflicting precedent. He states in More: "No question was made, in [the prior case], as to the jurisdiction. It passed sub silentio, and the Court does not consider itself as bound by that case."[84] He did not think the distinction too obvious to warrant mention.

Another potential distinction could have been to suggest that Chandler's motion was an attempt to invoke the appellate, not the original, jurisdiction of the Supreme Court. As Marshall noted in Marbury: "It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause."[85] Thus, Marshall could have asserted that when Chandler petitioned the Supreme Court for a mandamus to the Secretary of War, he was not initiating a new judicial action but was continuing an action already begun by his earlier application to the circuit judges/commissioners.[86] Marshall, however, made no mention of this rationale at all. Perhaps Marshall and his colleagues did not believe the distinction accurate. After all, the circuit judges had carefully said they could not and would not act as judges. Perhaps Marshall believed that whatever the merits of the distinction for Chandler it would not distinguish Hopkins, and distinguishing only Chandler would make the conflict with Hopkins more apparent.

Perhaps Marshall thought that citing or distinguishing precedent was simply unnecessary in this portion .of the Marbury opinion. While this would be inconsistent with his citing of the pension case (or cases) earlier in the opinion and his treatment of conflicting precedent in More, and other cases,[87] it would not be surprising given his general disinclination to cite precedent[88] and his "celebrated absent-mindedness and disorderliness."[89] As Professor Curie noted, Marshall's "disdain for precedent in general was extraordinary even when it squarely supported him."[90] For example, the question in Marbury as to whether the Court could examine the constitutionality of a statue and, if it found it inconsistent with the Constitution, refuse enforcement, was not an issue of first impression despite Marshall's indications to the contrary Marshall could have found support for his conclusion in a number of earlier federal and state cases as well as in The Federalist.[91] Nonetheless, he cited no precedent, notwithstanding the fact that, as his biographer Albert Beveridge said: "No case ever was decided in which a judge needed so much the support of judicial precedents."[92] Similarly in other major cases such as Trustees of Dartmouth College v. Woodward,[93] McCulloch v. Maryland,[94] Hodgson v. Bowerbank,[95] Cohens v. Virginia,[96] and Wayman v. Southard,[97] Marshall wrote as if he were confronting questions of first impression when in fact helpful precedent was available.

It is, of course, impossible to be certain why Marshall failed to use precedent more often, but in most of the instances we have examined it is possible to hypothesize plausible explanations. In several cases, he was probably unaware of or had forgotten the earlier precedents.[98] In others, he may have believed the precedent was poorly presented or not very helpful and preferred to start his own analysis fresh.[99] Whatever his reasons, in most of these cases, the neglected precedent supported Marshall's position. In those instances in which we found Marshall faced with precedent that undermined his position, he found ways to distinguish the cases.[100] Marbury stands alone as the only case we have found where Marshall ignored conflicting precedent he obviously knew about.

We believe the most likely reason Marshall ignored these precedents in Marbury was not that he thought the conflicts trivial or nonexistent but, on the contrary that he believed they could not be dismissed or distinguished easily The mandamus cases the Court entertained in the 1790's were not isolated examples that could be lightly dismissed as aberrations or unusual readings of section 13 or article III. Rather, as we will ..show the Supreme Court decisions in the 1790's – the motions for extraordinary relief under section 13 of the Judiciary Act of 1789 as well as the Yale Todd case–suggest that prior to Marbury the Court not only never questioned the constitutionality of section 13, but also did not read article III as restrictively as Marshall did in Marbury Moreover, the legislative history of the Judiciary Act of 1801 indicates that even John Marshall may not have read article III as restrictively as a congressman in 1800 as he did as a judge in 1803.

Throughout the 1790's, the Court adjudicated cases brought under section 13 without ever questioning the constitutionality of that section. In addition to the previously discussed mandamus cases brought against executive officials– Chandler and Hopkins[101] –the Court also entertained several petitions seeking writs of mandamus to be directed to a judge or court and never raised a concern about jurisdiction.[102] This lack of concern may be attributed to the fact that these cases, seeking to issue a mandamus to a judge or court, were within the appellate, and not the original, jurisdiction of the Supreme Court and therefore involved no enlargement of the Court's original jurisdiction.[103] What is significant, however, is not the lack of concern here, but the absence of any attempt to compare or contrast issuing a mandamus to an executive official with issuing one to a judge. This lack of discussion suggests that the constitutionality of the mandamus motions directed to executive officials was not questioned, and there was therefore no reason to distinguish those motions from the mandamus motions directed to judges.[104] As Marshall's biographer Albert Beveridge indicated, Marshall's suggestion that section 13 was unconstitutional was a "novel" idea:

We believe that the constitutionality of section 13 was not an issue in the 1790's because, prior to Marbury the Court and Congress believed that article III permitted Congress to move cases from the Court's appellate jurisdiction to its original jurisdiction.[106] The Court's adjudication of the mandamus motions discussed above, its consideration of the Yale Todd case and the legislative history of the Judiciary Act of 1801 all provide evidence that this was the general understanding.

In Yale Todd, the Court entertained the United States' suit notwithstanding the fact that it was exercising original jurisdiction over a case that clearly did not fall within the two categories of original jurisdiction specified by article III.[107] The case fell within the judicial power of the United States because the United States was a party but it involved neither a state nor any ambassadors, public ministers, or consuls. Nonetheless, the Court, apparently without ever questioning its jurisdiction, adjudicated the case and awarded judgment for the United States. Thus, the Court appeared to be untroubled by the possibility of Congress's enlarging the Supreme Court's original jurisdiction to include cases that fell within the broad category of the judicial power of the United States. Indeed, Chief Justice Taney agreed with this reading of Yale Todd. As he said:

Moreover, Congress, and even John Marshall himself as a congressman, seemed to maintain this interpretation of article III through at least 1800. In addition to enacting section 13 in 1789 and thereby enlarging the Court's original jurisdiction, Congress in an early draft of the Judiciary Act of 1801 contemplated another enlargement of the Court's original jurisdiction. This draft would have given the Supreme Court jurisdiction over suits in tort or contract against the United States by "any state, body politic or corporate, company or person," without regard to whether such suits involved a state or ambassador, public minister, or consul.[109] This generous remedial provision ultimately was struck from the bill, but the legislative history nowhere suggests that any concern for constitutionality motivated the deletion.[110] It seems clear that whatever the reasons for the deletion, at least the House committee that drafted the bill – including John Marshall, who was a member of the committee and an apparent supporter of the bill"[111] – did not doubt Congress's power to enlarge the Supreme Court's original jurisdiction.

Thus, this relatively long-standing legislative interpretation of article III and the Court's acquiescence therein suggest why if Marshall wanted to depart from this understanding, he had to do so by ignoring the prior conflicting mandamus cases. He could not dismiss them as isolated aberrations.[112] Neither could he contend that the Court in the 1790's was generally unconcerned with questions of jurisdiction.[113] Nor could he deny the force in counsel's argument that the First Congress's construction of the Constitution, accepted by the Court, was entitled to great weight.[114] As the following discussion indicates, Marshall frequently used that argument to great effect himself.

When Marshall confronted the question of the constitutionality of another provision of the Judiciary Act of 1789 in Co hens v. Virginia, he said:

Marshall's brethren also frequently used this technique of constitutional interpretation.[116] In Stuart v. Laird,[117] decided only six days after Marbury the Court upheld the constitutionality of the practice of having Supreme Court Justices sit on the circuit courts. The Court relied on the fact that the First Congress had imposed the duty in the Judiciary Act of 1789 and that the justices had complied continuously with the assignments. The Court observed:

Given that this history provided "an irresistible answer" and "fixed the construction" of the Constitution, one understands how it might have been hard for Marshall in Marbury to explain why the exact same history of legislative construction of article III and judicial acceptance of the constitutionality of section 13 did not provide an equally "irresistible answer." Ignoring the history was easier.

We have suggested why Marshall disregarded precedent in Marbury–he could not easily distinguish or dismiss the conflicting cases – but the question remains, why did Marshall knowingly depart from past cases and past Court practice? Perhaps the political situation in which the Court found itself led it to such a decision. We believe that Marshall wanted to make clear the Court's authority to review certain acts of the executive as well as of the legislature, but feared that ordering the executive to do something would risk a confrontation. He could achieve the dual assertion of power over the executive and the legislature without providing the executive an opportunity to defy the Court only by doing precisely what he did in Marbury: 1) assert the power to issue the writ of mandamus; 2) find that section 13 gave the Supreme Court that authority; 3) conclude that article III did not permit Congress to give the Court such authority; 4) hold that the Court therefore had to declare section 13 unenforceable; and 5) refuse the writ. The way to accomplish this persuasively was to ignore the conflicting precedent.

But the Chief Justice had the difficult task of convincing his colleagues on the bench to go along with such a result.[119] All his brethren had served on the Court in the 1790's, and two of them, William Cushing and William Paterson, had actually participated in the invalid pensions case decisions. Further, two colleagues, Paterson and Bushrod Washington, had advised the congressional committee that drafted the judiciary bill that would have enlarged the Supreme Court's original jurisdiction.[120] Moreover, Marshall himself had been a member of that committee and had supported the bill.[121] Thus, the Chief Justice had to persuade his associates to reject what appears to have been a settled understanding and practice for more than a decade.

We have no evidence that proves how Marshall persuaded his colleagues, but it seems beyond dispute that politics played a significant part in the final outcome of Marbury As soon as Marbury brought his case to court, the legal issues and their repercussions became the subject of much discussion, and interest remained high throughout the thirteen months that the suit was pending. The Justices had this long period to mull over the possible political consequences of their decision because shortly after Marbury's motion was initiated in December, 1801, Congress changed the Supreme Court terms so that the Court did not meet again until February 1803 when Marbury was finally decided.[122]

The connection between the Supreme Court's response to Marbury's motion and the general political situation was lost on no one. When, on December 19, 1801, the Federalist Supreme Court ordered the Secretary of State to show cause why a mandamus should not issue to compel him to deliver Marbury's commission, comments in the nation's capital focused on the political nature of that action. For the first time since the Constitution had been adopted, the three branches of government were not controlled by the same political party and it was an open question whether a Federalist judiciary could survive with a Republican president and a Republican-dominated legislature. Since taking office, Republicans had been talking about a repeal of the Federalist-enacted Judiciary Act of 1801,[123] as well as the possible impeachment of the most extreme Federalist judges. Some observers saw the show-cause order as a political threat issued by the Court. A Washington correspondent of the Salem Register observed:

But Republicans viewed the Court's action in a different light. A letter from an unidentified member of Congress printed in the Philadelphia Aurora, as well as other newspapers, noted that:

Senator John Breckenridge characterized the Supreme Court's issuance of the rule as "the most daring attack, which the annals of federalism have yet exhibited."[126] Senator Stevens Thomson Mason declared that "the conduct of the Judges on this occasion has excited a very general indignation and will secure the repeal of the judiciary law of the last session, about the propriety of which some of our republican friends were hesitating."[127] The fact that the Court put the case over to the next term suggests that it was well aware of the delicate legal and political situation in which it found itself.

In working out a solution to the problem, Marshall appears to have wanted to accomplish a number of goals, foremost among them establishing a sphere in which the Supreme Court could remain supreme. During the year between the issuance of the show-cause order and the Court's decision in Marbury the Federalists and the Court had suffered a tremendous defeat: Congress had voted, in February 1802, to repeal the Judiciary Act of 1801 and return the judiciary with minor changes, to the system created under the 1789 Act. The repeal annulled the broad grant to the federal courts of jurisdiction of all cases "arising under" the Constitution and laws of the United States and left the courts with the much more circumscribed jurisdiction specified in the 1789 Act. The repeal also eliminated the system of circuit courts set up by the 1801 Act, meaning Supreme Court Justices once again had to act as circuit judges.[128]

After Congress repealed the 1801 Act, Federalists placed their hopes in the judiciary.[129] They expected that the circuit judges appointed under the 1801 Act would legally oppose their removal from office – this never happened – and that the Supreme Court would declare the repeal unconstitutional. Before the Justices could determine officially as a court what their response to the repeal should be, they had to decide individually whether they would conduct the circuit courts assigned to them.[130] After much correspondence among the Justices, Marshall and Chase acquiesced in the views of the other Justices and agreed to hold the fall circuit courts.[131] Republicans interpreted this decision as a great victory. Thus one can understand why the Chief Justice may have seen Marbury as an ideal opportunity for the Court to recover not only lost prestige but its proper place in the federal polity.

By purporting to separate law and politics in Marbury and clearly enunciating the doctrine of judicial review, Marshall sought to capture for the Court a special role in interpreting the Constitution. While appearing to remove the Court from participation in the realm of partisan politics, the Chief Justice defined an area, the "law" in which it was the duty of the Court to provide the guidelines under which the federal government would function. Although Marshall claimed to be eliminating political questions from review by the Court, in reality he assumed for the Court the critical power to determine which issues were political and which were law.[132] This was indeed a bold proposition, but, given the political context, he was able to proclaim it in Marbury only by denying to the Court jurisdiction in the case.

As we have shown, Marshall could not have achieved his goals in any other way Thus, in Marbury the Court turned its back on a decade of jurisprudence.[133] By prohibiting Congress from enlarging the original jurisdiction of the Supreme Court, the Court said, in effect, that it could no longer entertain suits like those it had considered in the 1790's.[134] Yet, in the part of the opinion on this point, the Court ignored these suits. We can never know whether Marshall and his colleagues made a conscious decision to avoid mentioning conflicting precedent, but we can surmise that the persuasive Chief Justice convinced his associates that the new political situation demanded a new posture by the Court. A unified Federalist government no longer existed. The judicial branch remained the only hope of the Federalists to contain the perceived dangers of majoritarian democracy The repeal of the Judiciary Act of 1801 had just returned the jurisdiction of the federal courts to the more restricted version contained in the 1789 Act. It may have seemed like a small price to pay for the Court to give up a congressionally-enlarged original jurisdiction in order to maintain its supremacy by exercising judicial review in the context of appellate jurisdiction. If Marshall could persuasively maintain the Court's supremacy only by disregarding the precedents of the 1790's, his brethren probably gave him their blessing. Thus, the Chief Justice and the Court were willing to take liberties with the historical record to reach a decision they thought was essential to the survival of constitutional government.

Endnotes

* Copyright © 1985 by Susan Low Bloch and Maieva Marcus. All rights reserved.

** Susan Low Bloch, Associate Professor, Georgetown University law Center; Maeva Marcus, Director, Documentary History Project, Supreme Court of the United States. The authors wish to thank Frank Flegal, Steven Goldberg, John Kramer, Tom Krattenmaker, Jim Oldham, Roy Schotland, Warren Schwartz, Louis M. Seidman, Girardeau Spann, Mark Tushnet and Emily Van Tassel for their valuable comments on earlier drafts and Chris Celentino, David Eisenberg, Kate Harrison, Samia Rodriguez, Robert Tier, and Stephen Tull for their helpful research assistance.

1. 5 U.S. (1 Cranch) 137 (1803).
2. The case of Marbury v. Madison is studied in virtually every constitutional law and federal courts course, as well as many administrative law classes. It is reprinted in most casebooks on constitutional law, federal jurisdiction, and administrative law and is discussed in numerous books and articles. See e.g., R. Berger, Congress v. The Supreme Court (1969); 3 A. Beveridge, The Life of John Marshall 101-56 (1919); A Bickel, The Lease Dangerous Branch (1962); W. Crosskey, 1 & 2 Politics and the Constitution in the History of the United States (1953); R. Faulkner, The Jurisprudence of John Marshall 200-12 (1968); C. Haines, The American Doctrine of Judicial Supremacy (2d ed. 1959); G. Haskins & H. Johnson, 2 History of the Supreme Court of the United States (1981); Judicial Review and the Supreme Court Selected Essays (L. Levy ed. 1967); C. Warren, The Supreme Court in United States History (1922); Bice, An Essay Review of Congress v. The Supreme Court, 44 S. Cal. L. Rev 499 (1971); Corwin, Marbury v. Madison and the Doctrine of Judicial Review, 12 Mich. L. Rev. 538 (1914); Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835, 49 U. Chi, L. Rev. 646 (1982) [hereinafter cited as Currie II); Frankfurter, John Marshall and the Judicial Function, 69 Harv. L. Rev. 217 (1955); Kelly, Harbison & Belz, The American Constitution 179-81 (6^th ed. 1983); Mendelson, Was Chief Justice Marshall an Activist? In Supreme Court Activism and Restraint (Halperin & Lamb eds. 1982); Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1 (1983); Nelson, The Eighteenth Century Background of John Marshall’s Constitutional Jurisprudence, 76 Mich. L. Rev. 893 (1978); Strong, Judicial Review: A Tri-Dimensional Concept of Administrative-Constitutional Law, 69 W. Va. L. Rev. 111 (1967); Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L. J. 1; Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).
3. The lack of a recorded dissent, especially in the early years of the Marshall Court, did not necessarily mean a unanimous court. See e.g. Haskins & Johnson, supra note 2, at 385-388; D. Morgan, Justice William Johnson: The First Dissenter 168-69 (1954); Currie II, supra note 2, at 670 n. 158; Roper, Judicial Unanimity and the Marshall Court–A Road to Reappraisal, 9 Am. J. L. Hist. 118 (1965); White, The Working Life of the Marshall Court, 1815-1835, 70 Va. L. Rev. 1, 34-38 (1984). According to the testimony of one of Marshall’s colleagues, Justice Johnson, "in some instances" the Chief Justice delivered the opinions of the Court "even when contrary to his own Judgment and Vote." Quoted by W. Crosskey, 2 Politics and the Constitution in the History of the United States 1080 (1953).
4. 5 U.S. (1 Cranch) at 165-167, 169-71. See discussions in C. Haines, The Role of the Supreme Court in American Government and Politics 1789-1835, at 256 (1946); Kelly, Harbison & Belz, supra note 2, at 179-81; C. Wright, the Law of Federal Courts 74-81; C. Wright, The Law of Federal Courts 74-81 (4^th ed. 1983); Currie II, supra note 2, at 652; Van Alstyne, supra note 2, at 11-13.
5. See 3 A. Beveridge, supra note 2, at 126-27; Corwin, supra note 2, at 543; Currie II, supra note 2, at 543; Currie II, supra note 2, at 661 ("We . . . see in Marbury the work of a masterful tactician."); Frankfurter, supra note 2, at 221; Nelson, supra note 2, at 894-95; Kelly, Harbison, & Belz, supra note 2, at 181.
6. R. McCloskey, The American Supreme Court 40 (1960).
7. For a discussion of the political background of Marbury v. Maison, see 3 A. Beveridge, supra note 2, at 105-11; R. Ellis, The Jeffersonian Crisis; Courts and Politics in the Young Republic 43-45, 58, 64-68 (1971). Countless scholars have debated whether politics, economic convictions, or neutral judicial principles motivated Marshall. See, e.g., R. Berger, supra note 2, at 321-22; A. Bickel, supra note 2, at 1-14, 23-28; T. Cooley, A Treatise on the Constitutional Limitations 237-38 (7^th ed. 1903); E. Corwin, Court Over Constitution 98 (1938); 2 W. Crosskey, supra note 2, at 50-192; R. Faulkner, supra note 2, at 200-12; Haskins & Johnson, supra note 2, at 182-86; T. Powell, Vagaries and Varieties in Constitutional Interpretation 12-23 (1956); J. Thayer, John Marshall, reprinted in Thayer, Holmes and Frankfurter on John Marshall, 58-59, 77-78, 84 (P. Kurland ed. 1967); C. Tiedeman, The Unwritten Constitution of the United States 163 (1890); 1 D. Warren, The Supreme Court in United States History, 504-04 (1922); Frankfurter, supra note 2, at 219-21; Nelson, supra note 2, at 894-95.
8. Marshall referred to only two cases in Marbury. One is the celebrated English opinion of Rex v. Barker, 3 Burr. 1265 (1762), in which Lord Mansfield established a very broad role for the mandamus remedy. The other is the pension case to be discussed in this Article.
9. 1 Stat. 243 (1792) [hereinafter referred to as the "1792 Act" or the "Invalid Pensions Act of 1792" (pronounced "INvalid," not "inVALid")].
10. In 1792, the circuit courts of the United States were composed of two Justices of the Supreme Court and the district judge of the state in which the circuit court met. Any two of these judges constituted a quorum. See section 4 of "An Act to establish the Judicial Courts of the United States" [hereinafter cited as the "Judiciary Act of 1789"], I Stat. 74-75 (1789).
11. Act of March 23, 1792, §2, Stat. 244 (1792).
12. Id. §4.
13. The judges made their sentiments known in letters addressed to the President of the United States who, pursuant to the judges’ request, then communicated them to Congress. See letter from James Wilson, John Blair, and Richard Peters to George Washington (Apr. 10, 1792); letter from James Wilson, John Blair, and Richard Peters to George Washington (Apr. 18, 1792; and letter from James Iredell and John Sitgreaves to George Washington (June 8, 1792), 1 American State Papers, Miscellaneous 49-54 (Washington 1834). The only suit directly challenging the judges’ determination arose in the Supreme Court of the United States after the Circuit Court for the district of Pennsylvania refused to consider the petition of William Hayburn to be placed on the pension list of the United States. See Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). Edmund Randolph, the Attorney General of the United States, acting as Hayburn’s counsel, moved the Supreme Court for a writ of mandamus to the Circuit Court of Pennsylvania ordering it to hear Hayburn’s petition. After argument, the Supreme Court postponed a decision until the case was made moot by the passage of a new law by Congress stipulating a different procedure for examining the Claims of Revolutionary War veterans. See "An Act to regulate Claims to Invalid Pensions." 1 Stat. 324 (1793) Hayburn’s Case played no part in Chief Justice Marshall’s opinion in Marbury.
14. Extract of the minutes of the Circuit Court oft the district of New York, 1 American State Papers, Miscellaneous, at 50 (Washington 1834) (emphasis in original). The letters from the other judges expressed similar views as to the unconstitutionality of the act. See letters cited supra note 13.
15. Letters cited supra note 13 (Emphasis in original).
16. Some of them performed these duties notwithstanding grave doubts as to their authority to do so. See letter from James Iredell and John Sitgreaves to George Washington (June 8, 1792), 1 American State Papers, Miscellaneous, at 53 (Washington 1834). Before Iredell heard invalid pension claims he wrote a memorandum, possibly to assuage his own doubts, justifying his authority to act as a commissioner. See Reasons for acting as a Commissioner on the Invalid Acts," (undated), Charles E. Johnson Collection, North Carolina State Department of Archives and History.
17. "An act to regulate the Claims to Invalid Pensions," 1 Stat. 324 (1793).
18. See 3 Annals of Cong. 556-57 (Apr. 13, 1792); General Advertiser (Philadelphia), Nov. 10, 1792 (report of Nov. 9, 1792 debate in House of Representatives); Independent Gazetteer (Philadelphia), Dec. 22, 1792 (report of Dec. 14, 1792 debate in House of Representatives). There were other causes for changes in the 1792 Act as well. See 3 Annals of Cong. 733-34 (Dec. 3, 1792).
19. "An Act to regulate the Claims to Invalid Pensions," §3, which provided:

That no person not on the pension list, before the twenty-third day of March, one thousand seven hundred and ninety-two, shall be entitled to a pension, who shall not have complied with the rules and regulations herein prescribed; saving however to all persons, all and singular their rights founded upon legal adjudications under the act, initialed [sic] "An act to provide for the settlement of the claims of widows and orphans, barred by the limitations heretofore established, and to regulate the claims to invalid pensions:" [sic] But it shall be the duty of the Secretary of War, in conjunction with the Attorney General, to take such measures as may be necessary to obtain an adjudication of the Supreme Court of the United States, on the validity of any such rights claimed under the act aforesaid, by the determination of certain persons styling themselves commissioners.

20. See Infra notes 43-68 and accompanying text.
21. This bill was reported on the floor of Congress one day before the February, 1793 term of court ended and passed several days later. 1 Sen. Leg. J. 476 (1793).
22. Letter from Edmund Randolph to Henry Knox (Aug. 9, 1793, 1 American State Papers, Miscellaneous, at 78 (Washington 1834). No report of Randolph’s motion for this mandamus appears in the minutes of the Supreme Court or in any other official records of the Court. See The Documentary History of the Supreme Court of the United States, 1789-1800, at 169-474 (M. Marcus & J. Perry, eds. 1985) [hereinafter cited as Marcus & Perry].
23. See letter from Edmund Randolph to Henry Knox (Aug. 9, 1793) supra note 22. Randolph apparently believed that a decision on his mandamus motion would have settled the question of the validity of rights granted to invalids under the 1792 Act. In his letter to Knox, Randolph stated: "The decision of one case would have involved every other." Id. However, a denial of the writ would have been much less informative than a grant. It is unlikely that a denial of the writ would have resolved the question of the validity of the rights of all claimants under the Act. See discussion at notes 54-44.
24. These cases are not reported by Dallas in the U.S. Reports, but are recorded in the minutes and docket of the United States Supreme Court. See Marcus & Perry, supra note 22, at 222,228. The earliest U.S. Reports (Volumes 1, 2, 3, and 4) were compiled by Alexander James Dallas, a private entrepreneur not officially appointed by the Court, and are denominated by his name. For a discussion of the deficiencies of the early Supreme Court reporting system, see Joyce. The Rise of the Supreme Court Reporter, 83 Mich. L. Rev. 1291 (1985).
25. See Depositions of Jonathan Prindle. Samuel Ferris, RG21, Federal Records Center (Waltham, MA).
26. Minutes of the Supreme Court of the United States, in Marcus & Perry, supra note 22, at 222.
27. Id. at 223.
28. Id. at 226. On this occasion it is not clear who counsel was, not whom he represented.
29. Id.