Friday, July 24, 2015

A Satchel of Embarrassments: John Marshall and Marbury v. Madison

John Marshall
In the Federalist No. 78, Alexander Hamilton defended the proposed Judicial Branch, particularly the Supreme Court created in Article III of the Constitution. Hamilton contended that the Judiciary would be "the least dangerous branch" to the political rights of the People. With the long view of history, we can confidently conclude that Hamilton erred in that representation. Whether he lied, or underestimated the grasping desire for power, his reasoning, that Congress, which had the power of the purse, and the Executive, which bore the sword of the Nation, has proved wrong.

The Judiciary in our Nation has assumed powers far beyond any contemplated for it in the Constitution. Decisions described above give the reader some sense of how the Court's decisions have impacted the Nation, across the spectrum of human experience and relations. That this has happened could hardly be predicted from the robust debates held in the summer of 1787, when the delegates to the Constitutional Convention met in Philadelphia.

At the Constitutional Convention, on three separate occasions, the delegate debated and rejected a proposal to include the Judiciary in a panel that would review statutes enacted by Congress to determine constitutionality of them. Three times it was proposed that a Council of Revision be constituted and that the Council include representatives of the Judicial Branch. Three times the proposal was rejected. Ultimately, the Convention voted to adopt the Constitution as their proposal to the Congress. The proposed Constitution omitted the Council of Revision. The proposed Constitution left unmentioned any role for the Judicial Branch in evaluating statutes to determine their constitutionality.

Yet, as readers of this blog know, and as observers of the Supreme Court know, the Court claims to have that power, and exercises that power it claims to have. Indeed, in the face of court decisions that can only be described as exactly what decisions by a "Council of Revision" proceed from the Supreme Court, leaders of the other branches of the government too often, too consistently, retire from the field of civic battle, claiming that the Court's decision is final.

You might wonder how this outcome came from these preconditions, when the outcome was precisely rejected in the Constitutional Convention.

I propose, with no originality to the idea, that this happened by the deliberate accretion of power within the Judiciary. Case by case, decision by decision, either by direct taking of steps, or by laying the groundwork in its written explanations of the Constitution, the Supreme Court has built its base of strength and power.

That accretional process begins with Chief Justice John Marshall.

In Marbury v. Madisona case on which I have previously blogged, William Marbury filed a suit in the Supreme Court seeking an Order that Secretary of State James Madison had violated his right to obtain a commission as a justice of the peace. Marbury had been nominated to the post by John Adams and confirmed by the Senate. Marbury's judicial commission had been drawn up. Acting as Secretary of State, John Marshall applied the Great Seal of the United States to the commissions. They were then left in the office of the Secretary of State when Jefferson succeeded Adams in the Presidency in 1800. Jefferson directed his Secretary of State, Madison, not to deliver up several commissions, including Marbury's.

Adams and Jefferson had been friends and correspondents, and would be again in the future. Adams, though, was a Federalist and Jefferson was not. Adams had supported the Alien and Sedition Acts. Jefferson had friends and acquaintances who were charged with violating the Acts. Jefferson would later say that the Revolution of 1800 (his description of the struggle that brought him to the presidency) was frustrated because the judiciary had been populated by lifetime appointed Federalist-sympathizing justices. He would not shoot his own foot by delivering even a single justice of the peace post to a Federalist.

Marbury brought his suit in the Supreme Court.

Congress had enacted a Judiciary Act. The Act authorized the Supreme Court to issue certain orders in cases before it. The order Marbury sought was a Writ of Mandamus. A Writ of Mandamus is an Order Mandating a government official to do something. That Judiciary Act did not, in fact, authorize the Supreme Court to allow Marbury to file his suit in the Supreme Court. [Article III of the Constitution creates the Judicial Branch of our federal government. It identifies certain categories of cases that may be filed as original matters there (suits between States are one example of such original actions). Article III also granted to Congress the power to create inferior federal courts, to provide for their jurisdiction, and to provide for appellate jurisdiction of the Supreme Court.] In resolving Marbury's suit, Chief Justice Marshall treated that Judiciary Act as though it authorized Marbury's suit, even though it did not do so.

As with Chief Justice Taney's decision in Dred Scott, Chief Justice Marshall's decision could have been brief. Because the Constitution did not say that Congress could, by statute, expand the categories of original jurisdiction cases, the Judiciary Act (as falsely interpreted by Marshall) had wrongly granted to Marbury the right to sue for his commission in the Supreme Court. Chief Justice Marshall could have written a brief opinion noting that the Court lacked jurisdiction over Marbury's cause and entered an Order dismissing the case.

Chief Justice Marshall did not choose the road less traveled, in which a justice simply does only that which is required to complete the task before him. Instead, he used the occasion of Marbury's suit to expound on the role and duty of the Supreme Court. On that topic, disregarding the utter silence of the Constitution on such a role for the Supreme Court, Marshall asserted that the Supreme Court had the power of "judicial review." He wrote:
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.
Marshall's deft move asserted a principle -- the pre-eminence of the Court in deciding the constitutionality of congressional acts -- in a case in which neither the Congress nor the President would be much inclined to take immediate corrective action. The Congress had passed out of the hands of the Federalists and the Presidency, too, with the election of Thomas Jefferson. So the decision -- rejecting Marbury's claim -- while it found fault with Jefferson and Madison for refusing the commission to Marbury, produced the result agreeable to Jefferson and Madison.

Still, that nugget of judicial review was laid into the law with Chief Justice Marshall's opinion in Marbury. That nugget provided a precedent on which he, and future justices of the Supreme Court, could lean in other, further expansions of the Judiciary. Those many expansions that transformed the Court from its original condition as "the least dangerous branch" to the political rights of the People, to the one it occupies today as "the most dangerous" one.