Precedent as Mythology: The Case of Marbury v. Madison

Robert L. Clinton

Introduction

Long ago Plato warned that great truths may embody noble lies. One of the acknowledged great truths in the illustrious literature of American constitutional law holds that the doctrine of judicial review, presently conceived as the power of courts to invalidate laws, is firmly grounded in Chief Justice John Marshall's opinion for the United States Supreme Court in the case of Marbury v. Madison.[1] Not so long ago that case was but an obscure precedent for jurisdictional rulings and those involving the issuance of writs of mandamus.[2] The Supreme Court did not cite Marbury in support of judicial review until 1887; and in that instance the Court failed to make it plain that it knew exactly what it had cited.[3]

Yet in the second decade of the present century, Albert J. Beveridge, Marshal’s most distinguished biographer, can make the following statement:

Marbury, for perfectly calculated audacity, has few parallels in judicial history. In order to assert that in the Judiciary rested the exclusive power to declare any statute unconstitutional, and to announce that the Supreme Court was the ultimate arbiter as to what is and what is not law under the Constitution, Marshall determined to annul Section 13 of the Ellsworth Judiciary Act of 1789... Marshall resolved to go still further. He would announce from the Supreme Bench rules of procedure which the Executive branch of the Government must observe.[4]

Echoing Beveridge some four decades later, Alexander M. Bickel says that "If any social process can be said to have been 'done' at a given time and by a given act, it is Marshall's achievement. The time was 1803; the act was the decision in the case of Marbury v. Madison.[5] Clearly, if the aforequoted statements are correct, Marbury symbolizes far more than mere 'judicial review." It symbolizes what many modern commentators have come to call "judicial activism" as well.

That prevailing orthodoxy regards Marbury to be the prime exemplar of aggressive judicial behavior is quite apparent not only from perusal of texts in the field of constitutional law, but also from those in the field of American government where many would-be lawyers are first exposed to the case. One recent text declares that "When the courts make decisions so as to set policy, we have what is known as an 'activist' court. Yet, in fact, a majority of the United States Supreme Court has been nothing else since Chief Justice Marshall, in Marbury v. Madison (1803), proclaimed the Court's right to be the final interpreter of the Constitution."[6] Another claims that "Marshall went out of his way to declare Section 13 unconstitutional."[7] Yet another, alluding to the legendary Marshall-Jefferson conflict, says that "John Marshall's unwillingness to do battle with Jefferson was, in fact, the reason he contrived a way out by using judicial review in Marbury v. Madison."[8]

Several generations of political scientists and lawyers have been nurtured by such views, and another is being nourished by them now. They have been significant in the legitimation of American ideas respecting the proper extent of judicial power in the twentieth century. Both proponents and opponents of assertive federal courts have made extensive use of the decision's allegedly innovative character. Proponents have urged the "statesmanship" of the great Chief Justice in his disposition of the case. Opponents have pointed out that statesmanship is a "political" function which judges have no business performing.

Most authorities appear to concede the idea so eloquently embodied in Robert G. McCloskey's image of the case: "...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."[9] The consensus seems to be that in Marbury, the Court went out of its way to invalidate a statutory provision, in order to avoid a direct conflict with the President, and assert an authority over Congress which could hardly be challenged in the circumstances of the case, but which could nonetheless be utilized as precedent for subsequent assertions of that same authority. According to this theory, Marshall's handling of the case was motivated primarily by political, not legal, concerns; and everybody's favorite precedent is thereby afflicted with a seminal taint.

The main thesis of this essay is that the foregoing understanding of Marbury v. Madison is essentially mythological. Following the recent suggestion of Professors Dionisopoulos and Peterson that judicial review was already an accepted part of the American institutional structure well before 1803,"[10] and perceiving no reason why Marshall should have found a resort to subterfuge necessary in order to "establish" an already-established institution in the decision of Marbury's case, I shall re-examine those portions of the famous opinion which appear to have generated the current interpretation. If the allegedly political aspects of the decision may be straightforwardly accounted for by reference to legal factors alone, then the modern conception of judicial review in constitutional cases, a conception which emphasizes political aspects and ignores most of the legal ones, will have been discovered to embody a fiction, however noble, in its primary expression.

Before proceeding further, it is perhaps advisable to add a few words of clarification. First, I shall sometimes refer to the dominant view of Marbury v. Madison as an "activist critique." This should not be taken to imply that those who hold the view are thereby proponents of 'judicial policy-making." The phrase applies rather to opinions about how the Court approached the issues, and what was decided, in Marbury itself. Indeed, among the more striking features of the modern debate on judicial review is the apparent agreement of both proponents and opponents of judicial policymaking on what I am calling the "activist critique" of Marbury. Second, my criticism of the various notions which comprise the "activist critique" should not be read in support of a view that such notions are implausible. The Marbury situation was an exceedingly complex one, characterized by an abundance of both legal and non-legal factors. Reasonable persons, when attempting to explain the decision, surely may honestly differ on the relative weights to be assigned to influences in either category.

On the other hand, just as there are good reasons for emphasizing "political" factors in the effort to explain, say, presidential elections (though "legal" aspects are often significant); there are likewise compelling reasons for placing primary emphasis upon the existing constraints of constitutional, statute, and common law, when one attempts to understand a legal dispute from a historical standpoint. This is all the more true when we attempt to extract from the resolution of such a dispute principles of judicial decision-making for use in the justification of subsequent decisions. In the spirit of Professor Farber's call for a return to "pedestrian" legal scholarship,[11] I shall offer, in the pages to follow, an exegesis of Marbury v. Madison which suggests strongly the plausibility of an alternative to the activist rendition of Marbury v. Madison.

The Case

The facts in Marbury's case are well known. A lame duck Federalist Congress had, on February 13 and February 27, 1801, passed Acts, one of the effects of which was to create some new positions within the federal judiciary.[12] Four of the new appointees under the Act of February 27 failed to receive their commissions due to non-delivery, and on December 17, 1801, sued for a writ of mandamus compelling delivery an original action before the United States Supreme Court.[13] Before the case came to trial, Congress, now dominated by Republican majorities, passed, on March 3, 1802, an Act repealing the Act of February 13.[14] Shortly thereafter, on April 23, Congress passed an-other measure, the effect of which was to eliminate the June and December terms of the Supreme Court.[15] The latter measure was clearly an attempt by Congress to prevent the Court from ruling upon the constitutionality of the Repeal Act before it took effect, and one of its incidental results was to postpone the Court's hearing of Marbury's case until its February term in 1803.[16]

Prior to initiation of the suit, the four plaintiffs--William Marbury, Dennis Ramsay, Robert Townsend Hooe and William Harper--had applied to both the Secretary of State and the Secretary of the Senate for information regarding the commissions.[17] The Senate had, on January 31, 1803, refused to allow its secretary to produce copies from the journal reflecting its "advice and consent to the appointments."[18] According to the testimony of Jacob Wagner, a subpoenaed witness from the State Department, Marbury and Ramsay had appeared and were referred to him by the Secretary of State. Wagner told the applicants that "two of the commissions had been signed, but the other had not."[19] Wagner then stated that this fact had been communicated to him by others, but declined to reveal the identity of the informant(s).[20] A second employee of the State Department, Daniel Brent, testified that he was "almost certain" of the completion of Marbury's and Hooe's commissions, but not of Ramsay's; and that he (Brent) had been the person who "made out the list of names by which the clerk who filled up the commissions was guided."[21] Brent did not believe that any of the commissions had been recorded; but Wagner believed that some of them had.[22] Apparently neither Brent nor Wagner had been granted access to the relevant ledgers for confirmation of these beliefs.

The only other administration witness called was Attorney General Levi Lincoln, who had been acting Secretary of State when Marbury and Ramsay first made their application to the Department.[23] At first, Lincoln declined to answer questions because he "did not think himself bound to disclose his official transactions while acting as [S]ecretary of [S]tate"; and "ought not to be compelled to answer any thing which might tend to criminate himself."[24] Later, apparently in response to an argument of Char-Ins Lee, counsel for the plaintiffs, Lincoln agreed to answer several questions, though stating that he would not answer the crucial question as to "what had been done with the commissions."[25] Lee's argument concerned the duties of the Secretary of State under the two then-existing acts of Congress dealing with that subject.[26]

The first of these Acts had been passed on July 27, 1789, and had created the Department of Foreign Affairs, with the Secretary as its head.[27] Under this act, the Secretary was to "perform and execute such duties as shall from time to time be enjoined on, or entrusted to him by the President..."[28] The scope of the act is explicitly confined to matters "respecting foreign affairs,"[29] as the title of the newly created agency suggests. Lee conceded that, in regard to "the powers given and the duties imposed by this act, no mandamus will lie," since the Secretary is here "responsible only to the President."[30]

The second act was passed on September 15, 1789; and its purpose was to provide for the safekeeping of official documents of the United States.[31] This act changed the name of the Department of Foreign Affairs to the Department of State, and charged the Secretary with the duty to publish, print, preserve, and record all bills, orders, resolutions and notes of Congress which have been signed by the President; and to "make out," "record," and "affix the seal of the United States to all civil commissions, after they have been signed by the President."[32] With respect to judicial process, the act also provided that all copies of official documents, including commissions, "shall be as good evidence as the originals."[33] According to Lee, the duties of the Secretary embodied in this act, unlike those in the earlier act, must be performed independently of the President, and may therefore be compelled by mandamus in the case of nonperformance, "in the same manner as other persons holding offices under the authority of the United States."[34]

The last-quoted statement is a clear reference to Section 13 of the Judiciary Act of 1789, and indicates that Marbury and the other plaintiffs brought their complaint directly to the Supreme Court in reliance on the Act.[35] Later, in oral argument, Lee quoted the relevant sentence of Section 13: "The supreme court shall also have appellate jurisdiction from the circuit court, and courts of the several states, in the cases hereinafter specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."[36]

That Lee interpreted the last-quoted phrase concerning mandamus as pertaining to the Court's original jurisdiction is clear from his next remark: "Congress is not restrained from conferring original jurisdiction in other cases than those mentioned in the constitution."[37] This remark is accompanied by a citation of United States v. Ravara, a 1793 decision of the Circuit Court for Pennsylvania involving prosecution of a German Consul for extortion.[38] The Consul's lawyers had argued against the Circuit Court's jurisdiction, relying on the provision of Article III which gives to the Supreme Court original jurisdiction in cases affecting Consuls.[39] Justices Wilson and Peters (Iredell dissenting) rejected this argument, since Congress, in Section 13 of the Judiciary Act, had specified the Supreme Court's jurisdiction in cases involving Consuls to be original, but not exclusive.[40] It thus appears that Mr. Lee misinterpreted Ravara on the point in question, since the latter case involved no statutory enlargement of the Court's original jurisdiction; but only a clarification of it. Lee then moves on to citation of several cases wherein the Court earlier had entertained jurisdiction on mandamus or prohibition. In each case the requested writ was denied.[41]

Two additional witnesses submitted affidavits which supported the claims of the plaintiffs. The first was James Marshall, brother of the Chief Justice, who apparently had acted as a courier for the State Department in the delivery of several of the commissions. Marshall stated that he had been unable to deliver all the commissions, and that two of those left undelivered were those of Hooe and Harper.[42] Hazen Kimball, who had been a clerk in the Department on March 3, 1801, the day before Jefferson's inauguration, stated that on that day there were, in the office, "commissions made out and signed by the president, appointing William Marbury a justice of peace for the county of Washington; and Robert T. Hooe a justice of the peace for the county of Alexandria, in the District of Columbia.[43]

Several conclusions may be drawn from this brief survey of the preliminaries. First, the existence of the commissions of Marbury, Hooe and Harper was reliably established; though not that of Ramsay. Second, none of the evidence was challenged by any of the witnesses examined; not even those presumably hostile to the cause. Third, no significant response to the Court's original order to "show cause why a mandamus should not issue"[44] was entered either by Madison himself or by any of his subordinates. Finally, the issue of the constitutionality of Section 13 was raised, albeit obliquely, in oral argument.

Mr. Lee' s argument, devoted to persuading the Court that it was entitled to issue a mandamus to the Secretary of State, stressed the equitable nature of the proceeding, and its basis in English law. According to Blackstone, a writ of mandamus is

a command issuing in the king's name from the court of king's bench, and directed to any person, corporation or inferior court, requiring them to do some particular thing therein specified which appertains to their office and duty and which the court has previously determine4 or at least supposed to be consonant to right and justice. ft is a writ of a most extensively remedial nature, and issues in all cases where the party has a right to have any thing done, and has no other specific means of compelling its performance.[45]

According to Lee, since the Secretary in the Marbury situation is acting merely as recorder of laws, deeds, letters patent and commissions he is controlled only by the aforementioned laws imposing such duties, and is subject to indictment for refusal to perform them.[46] "A prosecution of this kind might be the means of punishing the officer, but a specific civil remedy to the injured party can only be obtained by a writ of mandamus."[47] The argument concludes by noting the threat posed by the arbitrary acts of the administration to an independent judiciary,[48] and presents a number of English cases designed to show that mandamus is appropriate where there is "no other adequate, specific, legal remedy"[49] thereby rendering the issuance of the writ consistent with the "principles and usages of law," as required by Section 13.[50]

Chief Justice Marshall's opinion for the Court was rendered on February 24, 1803. It may generally be subdivided into two sections. The first treats the related questions of Marbury's alleged right to receive his commission and the appropriate legal remedy to enforce that right, if such exists.[51] The Court's rulings on these points were straightforward: (1) that Marbury had been duly appointed, that delivery of the commission was merely incidental to the appointment, and that the Secretary of State had not therefore the privilege of later withholding it;[52] (2) that it is the duty of a government of laws to supply remedies for violated rights;[53] and (3) that the writ of mandamus is an appropriate legal remedy for resolution of a dilemma like Marbury's.[54] This section of the opinion thus follows closely the lines of argument laid down by Mr. Lee in his presentation of Marbury's case.

Not so with the second section of the opinion. This section deals with the power of the Court to issue the requested writ, and boils down to the question whether it may take jurisdiction of the case for such a purpose.[55] The Court's answer to the latter question is negative, upon the ground that the act on which Marbury relied is one which unwarrantably enlarges the original jurisdiction of the Supreme Court, a jurisdiction clearly spelled out in Article III of the federal Constitution.[56]

The relevant phrase extends the Court's original jurisdiction to cases affecting "Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party..." Although this provision was clearly designed to protect the dignity of American states and foreign nations when haled into court,[57] Lee had premised Marbury's original action in the Supreme Court on the idea that the Secretary of State could be compelled by mandamus "in the same manner as other persons holding offices under the authority of the United States."[58] The Court thereby rejects Lee's assertion that Congress may confer original jurisdiction in cases other than those mentioned in the Constitution.[59] In short, Marbury is entitled to his Commission, has applied for an appropriate equitable remedy in the absence of an adequate legal one, but has applied for it in the wrong court.

The dominant modern view of Marbury v. Madison appears to rest upon several contentions regarding alternative ways in which the Court might have handled the case. I shall proceed shortly to analysis of the Marbury opinion in the light of these contentions. Most of them were advanced in an article, now regarded a classic, penned some years ago by William Van Alstyne.[60] Lief Carter has claimed that Van Alstyne's dissection of the opinion reveals on Marshall's part "a lack of legal integrity bordering on fraud."[61] Many others have echoed like sentiments.

First, it has been suggested that since the Court ultimately declined to issue the requested writ of mandamus anyway it might as well have done so without opinion; or at least without having expressed an opinion regarding Marbury's "rights," or upon the theoretical power of the federal courts to enforce such rights via issuance of mandatory injunctions to executive officials.[62] After all, such an approach would have circumvented Jefferson's charge that the Court had traveled beyond its case "to prescribe what the law would be in a moot case not before the court."[63] Likewise, summary dismissal would have comported nicely with such modern maxims of judicial restraint as non-anticipation of constitutional questions, and decision of constitutional cases on other than constitutional grounds whenever possible.[64]

Closely related to the foregoing idea is the contention that the Court could have construed Section 13 narrowly, thereby avoiding the necessity of declaring the law unconstitutional. The Court might have assumed that Congress could not have meant to enlarge the original jurisdiction, and thereby resolved the matter on statutory grounds.[65] Alternatively, the Court might have ruled that the culprit mandamus provision could apply either in original or appellate jurisdiction, so long as the assumption of jurisdiction was justified on other grounds.[66] By this strategy, the Court would have avoided imputation either of bad motives or of poor draftsmanship to the national legislature, whose decisions are entitled to the utmost respect.

It has also been said that since Congress is empowered to make exception to the Court's appellate jurisdiction, the distribution of jurisdiction in Article III might have been merely provisional.[67] In connection with this proposition, it has been asserted that Marshall himself later rejected the implication of Marbury on this point, and therewith threw out the baby with the bath water.[68]

Finally, the famous argument in support of judicial review found in the closing paragraphs of Marshall's opinion has been criticized for an alleged assertion of judicial supremacy over Congress and the President in constitutional matters.[69] In the words of Judge Learned Hand: "It will not bear scrutiny."[70] Suspecting that the modern critique may bear it no better, I shall now examine relevant portions of the Marbury opinion in the light of that critique, hoping at very least to provide a more balanced view of the case.

Summary Dismissal

Under normal circumstances, where the law is considered settled, it is appropriate for the Supreme Court to dismiss a claim for want of jurisdiction without expressing opinion on the merits of the dispute. In appellate jurisdiction this result may be accomplished via denial of the writ of certiorari, a discretionary authority granted to the Court by statute in 1891.[71] This procedure was, of course, unavailable to the Court in Marbury's day, and remains inapplicable when the Court sits as a court of original jurisdiction. It follows that, at least prior to 1891, the Court's discretionary authority was greater in original than in appellate jurisdiction. In the former instance, the Court might, with greater justification than in the latter, regard itself bound to offer explanation of its refusal to employ its jurisdiction in a particular way. When the court is invited to exercise its original jurisdiction, it is essentially being asked to perform the functions of a trial court, the most important of which consists in the determination of the rights and responsibilities of parties who have not had their claims previously adjudicated.

These considerations apply with even greater force when the Court is asked to invoke its equity powers while sitting as a court of original jurisdiction. Since the issuance of a writ of mandamus is an equitable remedy, such was the situation of Marbury, and the Court undoubtedly recognized this in declaring its threefold obligation: (1) "solely, to decide on the rights of individuals;"[72] (2) to consider whether a specific duty has been "assigned by law;"[73] and (3) to determine whether "individual rights depend upon the performance of that duty."[74]

To be sure, the case had implications extending far beyond Marbury's personal dilemma. As we have seen, the federal courts were under siege throughout the entire period in which Marbury's case was before the Court.[75] The Judiciary Act of 1801 had been repealed,[76] a federal judge had been impeached[77] and the 1802 term of the Supreme Court had been suspended.[78]

With the judiciary involved in this imbroglio, it is hardly surprising that the Court would have been chagrined at the refusal of the Secretary of State to appear in order to "show cause why a mandamus should not issue." The separation doctrine of the Federal Convention surely enables the Court to defend itself against brazen attempts by coordinate branches of government to impair the capacity of the judiciary to perform its functions properly. Arguably, this was the Convention's primary rationale for judicial review in the first place, reflected in its narrowing of the power to cases of a "judiciary nature," of which Marbury is an obvious example.[80]

The Marbury situation is, in fact, somewhat analogous to that which led to the Court's unanimous holding in United States v. Nixon, that documents in the custody of executive officials, including the President, are subject to judicial process whenever such is essential to appropriate adjudication of the rights and duties of parties to a case pending in federal court, absent a clear showing of the necessity of exemption from such process.[81] Notwithstanding the obvious factual and legal differences between the two cases--for example, that in the latter case the President was directly involved as an unindicted co-conspirator in a criminal prosecution--it remains to be noted that in Mar-bury, as in Nixon, important documents sorely needed by the courts had been withheld without even the barest showing of necessity for such withholding. Furthermore, in Marbury, the executive refusal had occurred in the face of an act of Congress which required the production of the requested information. At any rate, it is against this threatening background that the Court's declaration of the law respecting the question whether, and in what circumstances, a right to a commission stemming from a judicial appointment "has vested or not" must be understood.[82]

The answer to this question, according to the Court, depends upon the separability (or lack thereof) of the acts of appointment and commission. Since "the power to perform them is given in two separate and distinct sections of the constitution,"[83] and since one of those sections imposes without qualification a duty upon the President to "commission all the officers of the United States,"[84] some of whose appointments may be vested by Congress "in the President alone, in the courts of law, or in the heads of departments"[85] it follows that the acts must be deemed separable, and that the commission is merely evidence of an appointment, not "itself the actual appointment."[86]

Furthermore, since "the verity of the Presidential signature" demands that "the great seal is only to be affixed to an instrument which is complete,"[87] and since Congress has imposed upon the Secretary of State, independent of presidential authority, the duty to "make out," "record," and "affix the said seal to all civil commissions to officers of the United States;"[88] it follows that delivery of the commission is merely incidental to the acts of appointment and commission, and that the failure of the Secretary either to produce evidence of an appointment (a commission), or to "show cause why a mandamus should not issue,"[89] constitutes a serious incursion upon the Court's power to perform adequately one of its most important functions: the determination as to when the Legislature has imposed upon a government official a particular duty to perform certain ministerial acts upon which the rights of individuals are dependent.[90] Under such conditions, "he is so far an officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others."[91]

In view of the attention that has been focused upon the Marshall-Jefferson conflict,[92]and the usual reading of the foregoing portions of the Marbury opinion as a veiled attack upon the President, it should be noted that all the a forequoted remarks are prefatory to the Court's invocation of Blackstone, to the effect that

injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents, by whom the king has been deceived and induced to do a temporary injustice.[93]

It is in this context also that the Court enunciates the distinction which is at the heart of the doctrine of political questions:

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use. his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights....[94]

In other words, the first portion of the Marbury opinion is hardly a "lecture" to the Chief Executive by way of dicta.[95] Even less does it exhibit a Court's "traveling beyond the confines of the case," or reaching out to decide "issues that did not have to be decided."[96] The Secretary had exhibited behavior clearly unbecoming the dignity of his office, had failed to perform duties which had been assigned to his office by statute independently of his responsibility to the Chief Executive, and had thereby implicated the Presidency itself in an illegal effort to suppress information clearly relevant to the determination of the rights and duties of parties to a lawsuit, a determination which is the duty (not merely a right) of the courts to make. Summary disposition of Marbury's complaint would therefore have been disingenuous on the part of the Court. Marbury had relied upon a presumably valid statute, which had not been previously construed by the Court with respect to the point in question.[97] Had the Court chosen to deny Marbury his remedy without apprising him of his right (his ability to pursue the cause in another court), Marbury's fate would have, in effect, been determined by the retrospective non-application of a doubtful statute. Such a result is manifestly inconsistent with the fairness rightly expected of courts when engaged in the task of rendering judgment regarding the rights of individuals vis-a-vis the powers of government.

On the other hand, had the Court reached the constitutional issue without ruling upon these questions--without carefully distinguishing the acts of a subordinate official which are assumed to be the acts of the Executive itself, from the acts of such an official acting on his own--it would have rightly exposed itself to the charge of disrespect toward a coordinate agency of government. In the case that Section 13 was void and the writ could not issue, the Court would have acquiesced in an executive usurpation of judicial functions, since the outcome would- have been made to appear dependent upon the mere arbitrary will of a subordinate executive official. In the alternative case, the Court would have intruded upon the prerogatives of the President, by issuing the writ in circumstances in which it was not perfectly clear whether the "failure to show cause" was properly within the executive discretion or not.

Statutory Construction

The relevant sentence of the provision to which the Court refused application in Marbury's case reads as follows:

The Supreme Court shall also have appellate jurisdiction from the circuit courts and the Courts of the several states, in the cases hereinafter specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States.[98]

One possible basis for a "narrow interpretation of the aforequoted provision would be to hold that, since the mandamus provision is part of a sentence which commences with a statement about the appellate jurisdiction, the intent of Congress plausibly may be construed as applicable only in that jurisdiction.[99] In response, it may be said that the phrase "in the cases hereinafter specially provided for" seems not to refer to the mandamus provision at all, but suggests application to subsequent sections of the act, wherein appellate procedures are "specially" delineated. The most likely referent is, of course, Section 25, which authorizes Supreme Court review of decisions of state courts of last resort.[100] Additionally, the first three sentences (the remainder of Section 13) are devoted entirely to the original jurisdiction, suggesting again that the first phrase of the fourth sentence is merely a forethought, and not determinative of the second phrase.

The first three sentences of Section 13 read as follows:

And be it further enacted, that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury.[101]

The purpose of the first two sentences is clearly to distinguish those instances wherein the Court's original jurisdiction is exclusive from those wherein it is not. The third sentence merely says that when the Court sits as a trier of fact (exercises its original jurisdiction in actions at law against United States citizens), the determination of fact must be made by a jury.

Another basis for a narrow view would be to hold that the mandamus provision is intended to apply in either original or appellate jurisdiction, so long as the assumption of jurisdiction is justified on other grounds.[102] In reply, one should be reminded of Marshall's tendency to read legal provisions literally, at least whenever language is relatively unambiguous. For example, Marshall read the term "contracts" in Article I, Section 10 so as to include "public" as well as "private" ones.[103] Many scholars have taken Marshall to task for this, claiming that the clause was intended to apply to "private" contracts only.[104] The trouble with this is that the Founders had explicitly rejected an invitation to qualify the term "contracts" with the adjective "private," leading one to the conclusion that they may have intended to make the scope of the contract clause as wide as possible.[105] But even were we ignorant of this history, it remains that the Founders left the word "contracts" without a qualifier, suggesting that they meant contracts generally to fall within the scope of the provision.[106]

Since the mandamus provision in Section 13 contains no specification whatever as to jurisdiction, a similarly literal reading demands the following conclusions: (1) that the provision applies generally to any "persons holding office, under the authority of the United States;"[107] and (2) that the writ may therefore be issued in both appellate and original jurisdiction. So read, the provision is unconstitutional, and the Court is at liberty to refuse its application.

In justification of its refusal to apply Section 13, the Court (per Marshall) essayed the most famous portion of its Marbury opinion. Having established Marbury's right to his commission,[108] the propriety of the writ of mandamus as a remedial device in situations wherein no other remedy is available,[109] and the appropriateness of its issuance against an executive who "commits any illegal act, under color of his office, by which an individual sustains an injury,"[110] and who cannot therefore pretend "that his office alone exempts him from being sued in the ordinary mode of proceeding,"[111] the Court turned to an examination of relevant constitutional doctrine bearing upon the question of its denial of the requested writ.

The Court first states that the instant case is one to which the judicial power of the United States applies, since this power "is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States."[112]This law, as we have seen, imposes upon the Secretary of State the ministerial duty to "make out," "record," and "affix" the seal of the United States to all civil commissions.[113] It does not impose upon the Secretary the obligation to deliver a commission, "but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by any other person."[114] Marbury's claim "respects a paper, which according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents...."[115]

This point has been overlooked in contemporary discusions of Marbury. The latter's notorious "right" is not that of delivery of the commission, but is rather the right to a mere copy from the record on demand. The right in question is therefore a statutory (not a constitutional) one arising from the duty imposed by Congress upon the Secretary "to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which, the President cannot lawfully forbid, and therefore is never presumed to have forbidden...."[116] In other words, the Secretary's duty is to perform a purely "ministerial" act not within executive discretion. It is within the power of a court to supply a remedy for an individual who has been harmed by the minister's failure to do his duty. It is worthwhile to note that this is the main reason why delivery of a commission cannot be considered essential to completion of an appointment. "The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment which must precede it, and which is the mere act of the President."[117]

In sum, the case falls squarely within the scope of Article III's "arising under" provision,[118] in that: (1) the plaintiff is potentially a judicial officer of the United States; and (2) the defendant's response (or lack thereof) amounts at best to executive interference with the Court's effort to perform its own proper function, or at worst to executive usurpation of judicial authority. It is therefore a case of a "judiciary nature" in the strongest sense, as has already been suggested in an earlier section of this essay.[119]

The problem for Marbury, however, is that Section 13, the provision which supposedly authorizes the mandamus remedy in his case, when construed literally, runs afoul of Article III's distribution of federal judicial power. The second clause of the Article's second section reads as follows:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and to fact, with such exceptions, and under such regulations as the Congress shall make.[120]

The "other cases before mentioned obviously refers back to the first clause of the same section, which spells out the various kinds of cases over which the Court has jurisdiction, including those in which the Court is granted original jurisdiction in the second clause.[121] A straightforward reading of the text therefore demands the conclusion that the Founders specified the appellate jurisdiction quite as dearly as they had the original, subject only to the qualification that empowers Congress to make "exceptions" to the former.

The Exceptions Clause

The Marbury opinion has been subjected to a variety of criticisms which revolve about the "exception" provision. Professor Van Alstyne has suggested that the Founders may have intended nothing more by the "original-appellate" division than to provide a guideline for the Court in the case that Congress failed to act.[122] David P. Currie has claimed that such a "provisional distribution" is precisely what they [the framers] did with respect to the appellate jurisdiction by empowering Congress to make 'exceptions.'"[123] The upshot of such arguments appears to be the position succinctly expressed by William Winslow Crosskey: "... the only legitimate question in Marbury v. Madison was whether Congress had made such an exception, by Section 13, in a constitutional manner. And that the answer to this question should have been in the affirmative is clear."[124] In other words, by drafting Section 13, Congress had merely "made an 'exception' to the appellate jurisdiction by providing original jurisdiction instead."[125]

It requires little erudition to perceive that these notions, if taken seriously, reduce the entirety of the second clause in Article III, Section 2 to superfluity. The Court certainly realized as much in Marbury, and said so unequivocally: "That they [the Supreme Court] should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction."[126]

Professor Currie seems to add confusion to contradiction when he says that Marshall "... was to reject the implications of his Marbury reasoning in Cohens v. Virginia, where he declared that Congress could grant appellate jurisdiction in cases where the Constitution provided for original."[127] Yet, as Currie himself points out, Alexander Hamilton had outlined reasons for the provision of original jurisdiction in those cases involving the dignity of a State, whether domestic or foreign.[128] However, Currie fails to notice that Hamilton also spelled out reasons for attaching the exceptions clause to the appellate jurisdiction, and that those reasons involved an effort on the part of the Founders to counter widespread public fear that the appellate jurisdiction "both as to law and to fact" would empower the Supreme Court to overrule determinations of fact rendered by juries below.[129]

The relevant language in the Federalist is the following:

To avoid all inconveniences, it will be safest to declare generally that the Supreme Court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security. This view of the matter, at any rate, puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in original causes by juries. This would certainly be an authorized exception; but if for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial.[130]

If Hamilton's suggestion is correct, there is no incompatibility between Marbury and Co-hens; since under his interpretation, the appellate jurisdiction would be subject either to enlargement or restriction, whichever the "ends of public justice and security" require in the particular instance. To "grant appellate jurisdiction in cases where the Constitution provided for original," is therefore not equivalent to doing the reverse.

Marshall and his Court must surely have known this at the time of the Marbury decision; for, as was pointed out above, the first two sentences af Section 13 differentiate those instances wherein the Court's original jurisdiction is exclusive from those wherein it is not.[131] Such, in effect, is to "enlarge" the appellate jurisdiction of the Court. The inescapable logic of the Section 13 division is pointed out by the Court later in Cohens, via reductio ad absurdum:

Can it be affirmed, that a State might not sue the citizen of another State in a Circuit Court. Should the Circuit Court decide for or against its jurisdiction, should it dismiss the suit, or give judgement against the State, might not its decision be revised in the Supreme Court. The argument [of counsel] is, that it could not; and the very clause which is urged to prove, that the Circuit Court could give no judgement in the case, is also urged to prove, that its judgement is irreversible. A supervising Court, whose peculiar province it is to correct the errors of an inferior Court, has no power to correct a judgement given without jurisdiction, because, in the same case, that supervising Court has original jurisdiction....it is, we think, apparent, that to give this distributive clause the interpretation contended for, to give to its affirmative words a negative operation, in every possible case, would, in some instances, defeat the obvious intention of the article... ft must, therefore, be discarded... The Court may imply a negative from affirmative words, where the implication promotes, not where it defeats the intention.[132]

In other words, the Marshall Court refuses to "imply a negative from affirmative words," where, as in Cohens, the implication "defeats the intention." On the other hand, where, as in Marbury, the implication promotes the intention, a negative may be inferred. The Court addresses the issue squarely in Marbury:

If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning if such is to be the construction.[133]

These remarks are unimpeachable. But in what immediately follows, it must be conceded that Marshall made a mistake: "If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance."[134] The mistake, however, is one of inappropriate expression, not of logic. Taken at face value the statement is entirely true. It is merely a hypothetical with two premises, both of which must be true if the conclusion is to follow. Since the first premise ("congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original") is true, as we have seen, and as the Court later held in Cohens, it follows that the second premise ("Congress remains at liberty to give this court original jurisdiction where the constitution has declared it shall be appellate") must be false; else the conclusion ("the distribution of jurisdiction, made in the constitution, is form without substance") will follow. And the Court so held in Marbury. Later, in Cohens, Marshall says that the general "expressions in the case of Marbury v. Madison must be understood with the limitations which are given to them in this opinion; limitations which in no degree affect the decision in that case, or the tenor of its reasoning."[135]

Judicial Review

After having shown the incompatibility of Section 13 with the constitutional distribution of judicial power, the Court entertains the question whether a jurisdiction inappropriately conferred may nevertheless be exercised. For its answer, recourse is clearly to the underlying logic of Article V:

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, or ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.... it is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.[136]

At this point the Court reaches the issue which eventually generated the great controversy over judicial review which has yet to subside. Granted that "The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts,"[137] does it nonetheless follow that an act, "repugnant to the constitution...notwithstanding its invalidity, bind the courts, and oblige them to give it effect?"[138]In its answer to this crucial question, the Court articulates the famous theory of judicial function for which Marbury is celebrated:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the [C]onstitution; or conformably to the [C]onstitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.[139]

In light of the manner in which these lines have been frequently cited as precedential for a view of the judicial power which renders the Supreme Court ultimate arbiter of constitutional questions generally, much should be made of what is not said in them. No exclusive power to interpret the fundamental law is claimed for the Court here, or anywhere else in Marbury. To be sure, it is the "province and duty of the judicial department to say what the law is."[140] But the Court says that this is so only "of necessity," whenever those "who apply the rule to particular cases" must determine which of two "conflicting rules governs the case."[141] This portion of the Marbury opinion seems directed primarily toward provision of a justification for the idea that, in some cases, "the constitution must be looked into by the judges."[142] There is no denial of the legislature's power to do likewise. Such is made clear a few paragraphs later in the opinion:"...it is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature."[143]

Even less does the language of Marbury suggest that the Court's determinations may legitimately transcend the confines of the particular case before it. After all, the Court has already said that its province is "solely, to decide on the rights of individuals," as we have seen.[144] And in the presence of a "repugnancy," it must only "disregard" either statute or Constitution (as a matter of logic) in its determination of "which of these conflicting rules governs the case."[145] In other words, the power of review claimed by the Court in Marbury is merely a power of discretion to disregard existing laws in the decision of particular controversies, provided that the constitutional and statutory provisions involved are, like those in Article III and the Judiciary Act, addressed to the Court itself. If the provisions in question are not addressed to the Court itself, then the Court is not compelled, as a matter of logic, to choose between them in order to decide the case. Since "precedents" are created by holdings on points of law necessarily decided in particular cases, it follows that the Court's choice between constitutional and statutory provisions, one or both of which are not addressed to the Court, should not be regarded as controlling in the decisions of subsequent cases. Nor should such unconstrained "choices" be read speculatively into the Court's opinion after the fact by historians, when the words of the Court itself are expressly to the contrary.

Marbury thus affords no basis for inferring the proposition that the Court is bound to disregard a statutory provision-in conflict with the Constitution, except perhaps in that small number of instances where the Constitution directly furnishes a rule for the courts. Indeed, the Marbury Court suggests precisely this view in its reference to the idea of political questions.[146] It is therefore plausible to draw the conclusion that, when the Court declares the superiority of the Constitution over ordinary legislation in Marbury, it does so not in derogation of legislative power, but only in justification of its judgment in that case: its determination of the respective rights and duties of Marbury and Madison.

Conclusions

The foregoing observations suggest that the twentieth century Marbury is largely a myth. Far from constituting an innovative decision, each important aspect of the opinion is grounded upon familiar principles of legal interpretation. First, the Court's rendering an opinion apprising Marbury and Madison of their respective rights and duties was appropriate, notwithstanding its "advisory" character. The relief requested by Marbury is equitable in nature (a mandatory injunction directing specific performance being an equitable remedy), and the function of a court of equity is to do as much justice as can be done under the circumstances of the case, when no adequate legal remedy is available.

Since the Court was powerless to issue the writ while sitting as a court of original jurisdiction, the maxim which holds that wrongs are not to be without remedies demands, at very least, a statement of the law of the case. Jefferson's retort notwithstanding, this is no advisory opinion in the sense in which the doctrine proscribing ex cathedra pronouncements on constitutional questions has since been developed. The purpose of that doctrine is fully accomplished when a court refuses to interpret constitutional provisions in the absence of a bona fide case or controversy. There is no question concerning Marbury's standing to litigate. The only question concerns the appropriate forum in which to do it.

Second, the Court's handling of the law issues in Marbury are fully accounted for by reference to three familiar principles of construction :(1) Interpret unambiguous language in a literal manner, unless such an interpretation would (2) render some other provision in the same document meaningless, or (3) defeat the intention of the drafters in some obvious way. Since literal interpretation of the fourth sentence in Section 13 does no violence to the remainder of the Section in the sense of the second or third principles, the Court is fully justified in adopting the first principle as its rule of construction. The familiar charge that the Marbury Court went out of its way to invalidate Section 13 is therefore questionable. To be sure, one might criticize the Court for failure to adopt a strained construction of the provision in order to avoid declaring it unconstitutional. But saying that the Court failed to follow modern maxims of judicial restraint to the limit in a particular decision is not the same as saying the decision amounted to gross abuse of judicial authority. In Marbury's case, the latter charge has been frequently made.

With respect to the Court's interpretation of the distributive jurisdictional provisions in Article III, a similar analysis may be applied. Even though these provisions appear to spell out the respective original and appellate jurisdictions in such a way as to leave no overlap in the categories, the Court showed convincingly in Cohens that a literal reading of the clause pertaining to appellate jurisdiction would defeat the obvious intention of the drafters, thus violating the third of the principles stated above. Since the Court had already demonstrated in Marbury that non-literal application of both clauses (original and appellate) simultaneously would reduce the entire Section to superfluity, thereby violating the second principle of construction; it follows that if non-literal application is required in Cohens then literal interpretation is required in Marbury. And that is precisely the holding of the Court.

Finally, the Court's argument on judicial review in Marbury is defensive in character, and appropriately restricted to the circumstances of the case at hand. Assuming that an act in violation of the Constitution is a nullity, as a matter of law (an assumption which few have questioned), the Court proceeds to argue that some cases it may say so. The cases in which it may say so are those (like Marbury) in which the performance of essential judicial functions would be impaired if it said otherwise. Anything less would, of course, destroy the separation of powers so carefully established in the Constitution, thereby reducing much of that document's language to meaninglessness, and defeating the purposes of its drafters in a most obvious way.

It appears that the Supreme Court must have agreed, throughout most of the previous century, with the view of Marbury v. Madison advanced in this essay. Between 1804 and 1894, Marbury was cited in 49 separate opinions in the United States Supreme Court. Of this total, 24 citations extend or reiterate Marbury's jurisdictional holding.[147] Fifteen extend or reiterate the mandamus holding.[148] Six support rulings on the distinction between ministerial and discretionary acts of executive officers.[149]

Two refer to the Cohens clarification of the Marbury dicta previously discussed.[150] One refers to the right-remedy maxim.[151] The remaining citation mentions Marbury as precedent for judicial power to invalidate laws, and did not appear until late in the nineteenth century, as we have seen.[152] This is somewhat startling in view of the fact that, by 1894, the Court had already invalidated at least 21 national laws.[153] Yet in not a single one of those cases did the Court bother to cite Marbury v. Madison.[154] If Marbury had, in fact, asserted judicial supremacy over Congress and President in constitutional matters, as so many modern critics seem to think, surely the Court itself would have noticed before 1887!

Moreover, no one else seems to have noticed, either. Examination of major legal and political tracts penned during the pre-Civil War period reveal no indication that Marbury represented any such broad notion of judicial authority. Not even the most vocal opponents of the Court ventured to question any of Marbury's holdings. Their guns were pointed elsewhere.[155] Only Jefferson, chagrined over what he evidently assumed to have been a personal attack, complained bitterly, yet never denied the propriety of the limited type of review sanctioned by the Court in Marbury.[156] The only disparaging contemporaneous reference to Marbury's judicial review holding appears to have been that of Judge John Gibson of the Pennsylvania Supreme Court in a famous dissenting opinion in the case of Eakin v. Raub.[157] A close reading of that opinion will reveal, however, that Judge Gibson explicitly confined its scope to the question whether the Supreme Court of Pennsylvania might refuse to enforce an act of Pennsylvania's legislature on the grounds of conflict between the act and the state constitution.[158] He then goes on to distinguish between acts in violation of the state constitution, and those in violation of the federal Constitution, his opinion being that the courts are obliged "to execute the former, but not the latter."[159] In short, Eakin v. Raub, strictly speaking, has very little to do with Marbury v. Madison.[160]

Perhaps it is time to substitute history for mythology, and to reclaim the tradition for which Marbury

once stood. The period of gross judicial aggression which first spawned the Marbury straw man supposedly has been repudiated. Yet one may reasonably doubt whether the repudiation has been fully accomplished so long as its primordial symbol remains. That suspicion is confirmed when one observes, as recently as 1958, the entire membership of the Supreme Court of the United States joining in the following pronouncement. Referring to Marbury, the Court says:

This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.[161]

No disrespect to the Court intended, I would submit that It, the Country and the Constitution once got along without "that principle" for exactly a hundred years. It is arguable whether we have gotten along as well with it during our second hundred years. As we approach our third hundred, it might be appropriate finally to consider what may well be the authentic original precedent for modern judicial review: Dred Scott v. Sandford, where the Court, for the first time, invalidated a national law on policy, rather than legal, grounds.[162] That decision stands as a poignant reminder that to ignore our origins is to ignore our destiny as well.

Endnotes

1. 1 Cranch 127 (1803).
2. See references in notes 147, 148, infra.
3. Mugler v. Kansas, 123 U.s. 623, 661 (1887). The Mugler reference is an obvious misreading of Marbury. The Court there uses Marbury in support of the developing idea of substantive due process, in a passage which is obiter dicta.
4. Albert J. Beveridge, The Life of John Marshall, 4 vols. (Boston: Houghton-Mifflin, 1916), III:132.
5. Alexander M. Bickel, The Lease Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962), p. 1.
6. Charles R. Adrian and Charles Press, American Politics Reappraised: The Enchantment of Camelot Dispelled (New York McGraw-Hill, 1974), p. 172.
7. James McGregor Burns, J. W. Peltason, and Thomas E. Cronin, government by the People, 10^th ed. (Englewood Cliffs: Prentice-Hall, 1978), p. 29.
8. Daniel M. Berman and Louis S. Loeb, Laws and Men: The Challenge of American Politics (London: MacMillan, 1970), p. 326.
9. Robert G. McCloskey, The American Supreme Court;(Chicago: University of Chicago Press, 1960), p. 40.
10. P. Allan Dionispoulos and Paul Peterson, "Rediscovering the American Origins of Judicial Review: A Rebuttal to the Views Stated by Currie and Other Scholars," 18 The John Marshall Law Rev. 49-76 (1984). See also Christopher Wolfe, "A Theory of U.S. Constitutional History," Journal of Politics, 43 (May 1981): 292, pp. 293-94; "John Marshall and Constitutional Law," Polity, 15 (Fall 1982): 5. Professor Wolfe argues convincingly that Marshall's jurisprudence was generally faithful to constitutional principle.
11. Daniel Farber, "The Case Against Brilliance," 70 Minn. L. Rev. 917-30 (April, 1986), pp. l917, 929-30.
12. For an excellent general survey of the background of this situation, including such aspects as attitudes toward the legal profession during the 1790s, movements for judicial reform in the states, and many others as well, see Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Norton & Co., 1974), pp. 3-16. See also George Haskin and Herbert Johnson, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Vol. 2, Foundation of Power: Johnson Marshall, 1801-15 (New York: MacMillan Publishing Co., Inc., 1981, pp. 647-51. On the Judiciary Acts of 1801, see Ellis, Jeffersonian Crisis, p. 15. See also, Kathryn Turner, "Federalist Policy and the Judiciary Act of 1801," William & Mary Quarterly 22 (January 1965) 15-22; Erwin C. Surrency, "the Judiciary Act of 1801," American Journal of Legal History, 2 (1958): 53-65; Max Farrand, "the Judiciary Act of 1801," American Historical Review 5 (1899-1900) 682-686; Haskins and Johnson, Foundations of Power, pp. 183-86.
13. Ellis, Jefferson Crisis, p. 43.
14. Ibid., pp. 183-86.
15. Ibid., pp. 59-60.
16. Haskins and Johnson, Foundations of Power, p. 184.
17. Marbury v. Madison, 1 Cranch 137, 138 (18803).
18. Ibid., p. 139.
19. Ibid., p. 142.
20. Ibid.
21. Ibid., p. 143
22. Ibid., pp. 142-3.
23. Ibid., p. 143.
24. Ibid., p. 144.
25. Ibid., p. 145.
26. Ibid., pp. 139-42, 144.
27. Ibid., p. 139.
28. Ibid.
29. Ibid., p. 140.
30. Ibid.
31. Ibid.
32. Ibid., pp. 140-41.
33. Ibid., p. 141.
34. Ibid.
35. Judiciary Act of 1789, 1 Stat. 73, 80-81 (1789).
36. Ibid., p. 81, Quoted in 1 Cranch 137, at 148.
37. 1 Cranch 137, at 148.
38. 2 Callas 297.
39. Ibid., pp. 297-98.
40. Ibid., p. 298.
41. 1 Cranch 137, at 148.
42. Ibid., p. 146.
43. Ibid., p. 153.
44. Ibid., pp. 153-54.
45. 3 Blackstone's Commentaries 110. Quoted in 1 Cranch 137, at 147.
46. 1 Cranch 137, at 149-50.
47. Ibid., p. 150.
48. Ibid., pp. 151-2.
49. Ibid., pp. 152-53.
50. Ibid., p. 152.
51. Ibid., pp. 154-73.
52. Ibid., pp. 159-62, 167-68.
53. Ibid., pp. 162-68.
54. Ibid., pp. 168-73.
55. Ibid., pp. 173-80.
56. United States Constitution, Article III, Section 2, Clause 2.
57. See note 128, and accompanying text, infra.
58. 1 Cranch 137, at 141.
59. Ibid., p. 148.
60. William Van Alstyne, "A Critical Guide to Marbury v. Madison," 1969 Duke L. J. 1, 15 (1969).
61. Lief Carter, "Think, Things, Not Words," Journal of Politics 43 (May 1981): 317-18.
62. Van Alstyne, "Critical Guide," p. 15.
63. Thomas Jefferson, Letter to Justice Johnson, June 12, 1823. Quoted in Donald O. Dewey, Marshall versus Jefferson: The Political Background of Marbury v. Madison (New York: Alfred A. Knopf, 1970, p. 145.
64. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring).
65. Van Alstyne, "Critical Guide," p. 15.
66. Ibid.
67. Ibid., p. 31. See also David P. Currie, "The constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835," 49 University of Chicago Law Rev. 646, 654; William Winslow Crosskey, Politics and the Constitution in the History of the United States (Chicago: University of Chicago Press, 1953), Vol. 2 (1), p. 1041.
68. Currie, "The Constitution in the Supreme Court," pp. 654-55.
69. E.g., Abraham Holtzman, American Government Ideals and Reality (Englewood Cliffs Prentice-Hall, 1980), pp. 32-330; Judicial review elevates the judicial branch to a position of supremacy over the action of the other two branches of the national government with regard to the Constitution. This power was asserted by the Supreme Court in deciding the case of Marbury v. Madison in 1803. The controversy that came to the Court in that case was a political one. The Court's assumption of this power of judicial review in resolving the controversy was equally political. . . . Thus, by a decision of the Supreme Court, the doctrine of judicial review was built into the constitutional doctrine of judicial system. Also, Kenneth S. Sherrill and David J. Vogler, Power, Policy, and Participation: An Introduction to American Government, 2^nd Ed. (New York: Harper & Row, 1982), p. 103: "The decision in Marbury says that the final judgment as to what the Constitution means rests not with the legislative or executive branches but with the Supreme Court." Such statements could be multiplied almost endlessly.
70. Quoted in Bickel, Least Dangerous Branch, p. 2.
71. Use of the writ of certiorari was first introduced in the Evarts Act of March 3, 1891 (26 stat. 826), and was greatly expanded in the Judge's Bill of February 13, 1925, (43 stat. 936, See Charles Alan Wright, Handbook of the Law of Federal Courts (St. Paul: West, 1963), pp. 5-6.
72. Marbury v. Madison,1 Cranch 137, 170 (1803).
73. Ibid., p. 166.
74. Ibid.
75. Ellis, Jeffersonian Crisis, pp. 19-52. Haskins and Johnson, Foundation of Power, pp. 136-182.
76. Ellis, Jeffersonian Crisis, pp. 36-52, esp. p. 71.
77. Johnson Pickering, Judge of the Federal District Court of New Hampshire, on Feb. 4, 1803. See Ellis, Jeffersonian Crisis, pp. 69-82, esp. p. 71.
78. Ellis, Jeffersonian Crisis, pp. 53-68, esp. 57-60.
79. Marbury v. Madison, 1 Cranch 137, 153-54 (1803).
80. See Max Farrand, Records of the Federal Convention (New Haven: Yale University Press, 1911), II:43. According to Farrand, the Founders accepted the extension of the federal judicial power to cases "arising under the Constitution, Laws, and Treaties of the United States" only after it had been "generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature." Farrand, II, 430. According to B. F. Wright, "There is room to differ as to Madison's meaning of 'judiciary nature' here, but at least it would appear to represent a theory of judicial review which did not recognize the courts as the exclusive or final interpreters of all parts of the Constitution." Benjamin F. Wright, The Growth of American Constitutional Law (Chicago: University of Chicago Press, Phoenix Book, 1967), p. 18, note 24. See also Jessee H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Chicago: U of Chicago Press, 1980), p. 395.
81. 418 U.S. 683 (1974).
82. Marbury v. Madison, 1 Cranch 137, 167 (1803).
83. Ibid., p. 156.