The Marbury-Go-Round

 Citation
5 U.S. 137 (1803)

Facts
In  1801, having lost the recent Congressional and Presidential elections,  the Federalists in Congress passed the Judiciary Act of 1801 which  created a number of new federal judgships. Before leaving office  President John Adams took the opportunity thus created to appoint a  number of Federalists to these newly created positions. "It appears from  the affidavits that, in compliance with this law, a commission for  William Marbury as a justice of peace for the County of Washington was  signed by John Adams, then President of the United States, after which  the seal of the United States was affixed to it, but the commission has  never reached the person for whom it was made out." When  Jefferson arrived in the White House, disturbed by all the new  Federalist judges recently appointed, he ordered his Secretary of State,  James Madison, to withhold warrants not yet given. Under a clause of  the Judiciary Act of 1789, ranting the U.S. Supreme Court original  jurisdiction over issuing writs of mandamus (i.e. orders to government  officials to act in their official capacity), Marbury sued for this  warrant in the Supreme Court to order Madison to deliver his commission.

Was Marbury appointed to his office?
John Marshall begins his  opinion looking at the process for the president to make a judicial  appointment.  Under Article 2, the president has the power  "to appoint...all other officers of the United States" and "He shall  commission all the officers of the United States." Pursuant to an act of  Congress, the Secretary of State keeps the seal of the United States  and affixes the seal "to all civil commissions to officers of the United  States."  The signature by the president on the commission is a warrant  to the Secretary of State to affix the seal.  "The commission being  signed, the subsequent duty of the Secretary of State is prescribed by  law, and not to be guided by the will of the President. He is to affix  the seal of the United States to the commission, and is to record it."   Thus, all of the Constitutional requirements for an appointment have  been met:
 

"Mr. Marbury, then, since his commission was signed by the President and  sealed by the Secretary of State, was appointed, and as the law  creating the office gave the officer a right to hold for five years  independent of the Executive, the appointment was not revocable, but  vested in the officer legal rights which are protected by the laws of  his country."
 

Does Marbury have a remedy under law?
It  is a well-established rule of law "the individual who considers himself  injured has a right to resort to the laws of his country for a remedy"  In a separation of powers discussion, Marshall reasons that the  appointment is a political power, but the "question as to whether a  right has vested" is to be determined by the "judicial authority."   Since Marbury was properly appointed, he must have a remedy under law,  and the correct venue to issue that remedy is the judicial branch of the  government.
 

Is the writ of mandamus the proper proceeding?
Mandamus  is defined in the Commentaries of William Blackstone, the English legal  scholar, as "a command issuing in the King's name from the Court of  King's Bench, and directed to any person, corporation, or inferior court  of judicature within the King's dominions requiring them to do some  particular thing therein specified which appertains to their office and  duty."  Provided the writ can be directed to this government officer and  the person seeking the writ is "without any other specific and legal  remedy" then it can be issued.  Since the Secretary of State is  currently withholding the commission, and Marbury has no other remedy,  mandamus is the proper action in this case.
 

Is the Supreme Court the proper forum in which to seek a writ of mandamus?
Article  3 of the U.S. Constitution identifies the Supreme Court original  jurisdiction: "in all cases affecting ambassadors, other public  ministers and consuls, and those in which a state shall be a party."   The original jurisdiction to grant a writ of mandamus does not originate  in the Article 3 powers but was granted to the Supreme Court in "the  act to establish the judicial courts of the United States" which is a  congressional law called the Judiciary Act of 1789.  Since there is no  provision in the Constitution for adding to the Supreme Court's original  jurisdiction (although there is such a provision to add to the Supreme  Court's appellate jurisdiction) the Judiciary Act of 1789 conflicts with  the U.S. Constitution. 

 May a congressional law grant the Supreme Court a power not granted in the Constitution?
To  answer the question "whether an act repugnant to the Constitution can  become the law of the land," Marshall identifies and explains the nature  of a Constitution.  In creating a Constitution, the people exercise  their "right to establish for their future government such principles  as, in their opinion, shall most conduce to their own happiness."   Emanating from the people,  the "principles" of that Constitution are  "fundamental,"  "supreme" and "designed to be permanent." With respect  to the laws enacted by the legislature empowered by the Constitution,  the rule is "too plain to be contested that the Constitution controls  any legislative act repugnant to it." 

 Who  decides whether a law is "repugnant" to the Constitution? Or, which  branch of government determines whether laws are unconstitutional?
Chief  Justice John Marshall takes the opportunity presented by the Marbury  decision to bestow upon the U.S. Supreme Court the power of judicial  review.  Towards that goal, he writes some of the most famous words in  the history of the Supreme Court:
 

"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 Constitution,  or conformably to the Constitution, disregarding the law, the Court must  determine which of these conflicting rules governs the case. This is of  the very essence of judicial duty." 

 Final Thoughts on the Power of A Constitution
Marshall concludes his opinion with a summation on the  omnipotence of a written constitution..."the greatest improvement on  political institutions."  He uses the text of the Constitution itself,  specifically the Supremacy Clause, to prove its power:
 

"It  is also not entirely unworthy of observation that, in declaring what  shall be the supreme law of the land, the Constitution itself is first  mentioned, and not the laws of the United States generally, but those  only which shall be made in pursuance of the Constitution, have that  rank.
Thus, the particular phraseology of the Constitution of the United  States confirms and strengthens the principle, supposed to be essential  to all written Constitutions, that a law repugnant to the Constitution  is void, and that courts, as well as other departments, are bound by  that instrument."
 

Marbury v. Madison...Marshall's proclamation of  the power of the Supreme Court, his love letter to the Constitution, his  first and greatest decision.  As long as the U.S. Constitution is the  Supreme Law of the Land, people will read and revere Marbury v. Madison. 

Dr. Bonham's Case (1610) This case from old English common law decided by the famous jurist Lord Coke  involved a Doctor Bonham who was imprisoned for practicing medicine  without a license.  The underlying law was held to be invalid by Lord  Coke:
 

"[I]t appears in our books that in many cases the common law will  control acts of parliament and sometimes adjudge them to be utterly  void; for when an act of parliament is against common right and reason,  or repugnant, or impossible to be performed, the common law will control  it and adjudge such act as void."
 
From J. H. Baker, An Introduction to English Legal History, 3rd ed. (1990)
 

The Federalist (also called The Federalist Papers)  is a series of 85 essays written in 1788 and 1789 by James Madison,  Alexander Hamilton and John Jay as a sort of explanation on how the  nation would be governed under the new Constitution.  Additionally, the  essays were crafted as persuasive arguments expressing the flaws of the  old system and in favor of ratification of the Constitution.  Today,  they are considered classics of political sentences.
 

From The Federalist No. 78  "The Judiciary Department" by Alexander Hamilton we see Hamilton's view of the role of the Supreme Court:
 

  "The complete independence of the courts  of justice is peculiarly  essential in a limited Constitution. By a  limited Constitution, I  understand one which contains certain specified  exceptions to the  legislative authority; such, for instance, as that it  shall pass no  bills of attainder, no ex-post-facto laws, and the like.  Limitations of  this kind can be preserved in practice no other way than  through the  medium of courts of justice, whose duty it must be to  declare all acts  contrary to the manifest tenor of the Constitution  void. Without this,  all the reservations of particular rights or  privileges would amount to  nothing.
 

  Some perplexity respecting the rights of the courts to pronounce   legislative acts void, because contrary to the Constitution, has arisen   from an imagination that the doctrine would imply a superiority of the   judiciary to the legislative power. It is urged that the authority  which  can declare the acts of another void, must necessarily be  superior to  the one whose acts may be declared void. As this doctrine  is of great  importance in all the American constitutions, a brief  discussion of the  ground on which it rests cannot be unacceptable.   
 

  There  is no position which depends on clearer principles, than that  every act  of a delegated authority, contrary to the tenor of the  commission under  which it is exercised, is void. No legislative act,  therefore, contrary  to the Constitution, can be valid. To deny this,  would be to affirm,  that the deputy is greater than his principal; that  the servant is above  his master; that the representatives of the  people are superior to the  people themselves; that men acting by virtue  of powers, may do not only  what their powers do not authorize, but  what they forbid."
 

 From the Avalone Project: http://avalon.law.yale.edu/18th_century/fed78.asp. 

 1. Who was William Marbury?
 

The  son and grandson of tobacco farmers and plantation owner from Maryland,  by the time Marbury reached adulthood, inheritance to older relatives,  the revolution, the collapse of the tobacco market and exhaustion of the  fields from the tobacco crops depleted the families entire fortune and  landholdings.  William Marbury had to make his fortune on his own...and  he did through politic connections and finance. 
 

In the 1780s he was a deputy tax collector in and around Annapolis.  He  also attended the Maryland ratifying convention which ratified the US  Constitution.  In the 1790s Marbury became the State Agent of Maryland,  an unelected official who acted as a financier organizing the economy  and finances of the state of Maryland.  He also developed a number of  very powerful friends in the new government, mostly contacts within the  Adams wing of the Federalist party. 
 

In the late 1790s, Marbury moved with his family to Georgetown and  became a part of the social elite.  He was considered a nationally  renowned expert on finance and became a board of director f the Bank of  Columbia.  His support of Adams in the election of 1800, along with  other political connections, got his name included with the 23 other  individuals for a position as a justice of the peace in Washington  County...at the age of 38, he was about to enter constitutional  immortality.
 

(The above information is just a summary of a thorough article. David F. Forte, Marbury's Travail: Federalist Politics and William Marbury's Appointment as Justice of the Peace,  45 Catholic University Law Review 349 (1996).  Excellent reading for  legal history fans...the authors research of primary sources is  impressive.)
 

2. Who forgot to deliver Marbury's appointment?
You are not going to believe it!   President John Adams'  Secretary of State was responsible for preparing  and delivering official presidential commissions.  In the last two  months of President Adams's term, that Secretary of State, who was also  the Chief Justice of the United States, was JOHN MARSHALL.  Marshall had  asked his brother James Marshall to deliver the appointments,  physically.  Some of these commissions, including Mr. Marbury's, were  never delivered.  The commissions were sitting on the desk of the new  Secretary of State, James Madison.  Marbury's commission was signed by  John Marshall personally.
 

From Robert J. Reinstein, Marbury's Myths: John Marshall, Judicial Review and the Rule of Law, (2004)

 

3. Did Secretary of State John Marshall drop the ball?
John Marshall believed the delivery of the commissions was a mere administrative formality that  would be carried out by the incoming administration in the ordinary  course of business...in Marshall's opinion, the new administration had a  legal duty to deliver the signed and sealed commissions. So, although  his brother did not deliver the commissions, since they were signed and  sealed, the appointment was complete in all but the physical sense.

From Charles H. Hobson, Symposium: Marbury v. Madison and the Revolution of 1800: John Marshall, the Mandamus Case, and the Judiciary Crisis, 1801-1803, 72 George Washington Law Review 289 (2003)

 

4. Who refused to deliver Marbury's commission?
Although  the defendant in the case is James Madison, he did not arrive in  Washington until May, 1801.  Jefferson took full responsibility for  withholding the commissions: "I found them on the table of the  department of State on my entrance into office, and I forbade their  delivery. [T]here was as yet no Secretary of State."  Jefferson saw the  appointment of the "midnight judges" as a Federalist power grab  for control of the least democratic branch of government.  In his mind,  it was an illegitimate act which allowed him to act as he saw fit.
 

From Charles H. Hobson, Symposium: Marbury v. Madison and the Revolution of 1800: John Marshall, the Mandamus Case, and the Judiciary Crisis, 1801-1803,  72 George Washington Law Review 289 (2003) citing Letters from Thomas  Jefferson to William Johnson (June 12, 1823), in Memoir, Correspondence,  and Miscellanies, from the Papers Thomas Jefferson 373 (Thomas  Jefferson Randolph ed. , 1829).
 

5. What happened to William Marbury?  Marbury  continued to work in finance and founded two banks, Bank of the Potomac  and Farmers' and Mechanic Bank.  He died in 1835, the same year as John  Marshall.   

(Need footnote.)  

6. What did Thomas Jefferson think about the decision in Marbury v. Madison?  President Jefferson , in a letter to Abigail Adams after the  decision was handed down, articulated his vision of who has the power to  interpret the Constitution:  

"The Constitution...meant that its coordinate branches should be checks  on each other.  But the opinion which gives to the judges the right to  decide what laws are constitutional and what not, not only for  themselves in their own sphere of action but for the Legislature and  Executive also in their spheres, would make the Judiciary a despotic  branch."  

From Thomas Jefferson to Abigail Adams, 1804 (Cited in http://www.landmarkcases.org/marbury/jefferson.html)