A dramatization of the events surrounding the case of Marbury v. Madison. Part of the Equal Justice Under Law series that ran in 1977 on PBS.
William Marbury was one of the “Midnight Judges” appointed by President Adams in the waning hours of his administration, 16 Federal district judges and 42 justices of the peace, all members of Adams’ Federalist party. The Senate, still controlled by the Federalists, approved his appointments en masse the next day on March 4, 1801, the same day Thomas Jefferson was sworn in. Acting Secretary of State John Marshall, who was also the newly appointed Chief Justice of the Supreme Court, sent out the commissions to be delivered to the newly appointed judges and justices of the peace. Not all could be delivered prior to Jefferson assuming office, and he ordered Levi Lincoln, Attorney General and Acting Secretary of State pending the arrival of James Madison in Washington, not to deliver the remaining commissions.
Marbury was among the justices of the peace who did not receive their commissions. He petitioned the Supreme Court for a writ of mandamus requiring Secretary of State James Madison to give him his commission.
In a 4-0 decision John Marshall, who should have recused himself from this case due to his involvement with the commissions, gave his enemy Jefferson a short term tactical victory and a long term strategic defeat. He ruled that Marbury had a right to the commission, but that the Supreme Court lacked the legal authority to order Madison to give him the commission. The Judiciary Act of 1789 had given to the Supreme Court the power to order writs of mandamus. Marshall found that Congress could not enlarge the original jurisdiction that the Constitution gave to the Supreme Court and that thus this provision in the Judiciary Act was unconstitutional and that the Court lacked the power to grant such a writ as a matter of original jurisdiction.
Thus did the Court grant itself the key power of judicial review, a power nowhere granted in the Constitution, although some members of the Constitutional Convention assumed that the federal judges would have the power to declare null and void an unconstitutional act. Hamilton argued in Federalist 78 that the Federal courts would have the power of judicial review.
It would be over a half century before the Supreme Court would strike down another act of Congress, in the infamous case of Dred Scott v. Sanford. However, the Court was not reluctant during that period to use judicial review to strike down state statutes that they ruled ran afoul of the Constitution.
Jefferson, long after he was out of office, in a letter dated September 28, 1820 to William Charles Jarvis raised some objections to judicial review that I think have much merit:
I feel an urgency to note what I deem an error in it, the more requiring notice as your opinion is strengthened by that of many others. You seem in pages 84. & 148. to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. Our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. Their maxim is ‘boni judicis est ampliare jurisdictionim,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges & other officers of government, for establishing a militia, for naturalization, as prescribed by the constitution, or if they fail to meet in Congress, the judges cannot issue their Mandamus to them. If the President fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the judges cannot force him. They can issue their Mandamus or distringas to no Executive or Legislative officer to enforce the fulfillment of their official duties, any more than the President or legislature may issue orders to the judges or their officers. Betrayed by English example, & unaware, as it should seem, of the control of our constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties. But the constitution, in keeping the three departments distinct & independant, restrains the authority of the judges to judiciary organs, as it does the executive & legislative, to executive and legislative organs. The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum & teum, and of criminal action, forming the great mass of the system of law, constitute their particular department. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is, not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.
It’s clear that things are upside down when the Legislative branch is the least important –even if the beak wetters and nest featherers like it that way.
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A couple of ideas:
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Term limits for Justices –say 25 years.
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A mandatory retirement age of 75 –that ought to hold for Congress critters and Presidents/Veeps too; nobody has the right to die in office (I’m looking at you, Sen. McCain).
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A Constitutional Amendment enabling Congress to overturn a Supreme Court decision modelled after the amendment process -an application by 2/3ds majority with a vote of 3/4ths required to overturn the decision.
And while we’re on the subject of reform, I wouldn’t mind if we figured our a way to work in the Athenian practice of osctracism and/or the Roman office of Censor.
I would have a filled list for ostracism candidates for next 25 years at least! The Founders considered the legislative branch to be the most important branch. The craven way in which Congress has ceded authority to the Judiciary and the Executive would have appalled them.
In the next eight years, Hillary will appoint three or four far-left justices. The 1st, 2nd, 4th, 5th, . . .Amendments effectively will be repealed. Americans will live in a police state characterized by destitution and misery (easier to control desperate people) where offending someone will be a felony and the least of their problems.
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I think (cringe) that The Founders never dreamt that the government would have seized such vast powers over we the people. Anyhow (cringe harder), maybe that is why they included the Second Amendment in the Bill of Rights.
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You sound like one of those “2nd Amendment People.” You know:
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murdery
You sound like one of those “2nd Amendment People.” You know:
murdery
The double post reflects my deep and profound concern about your anxiety inducing micro-aggerssive assault on polite discourse in this country.
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Now shut up and bow down before the Kali Ma of Chappaquidick!
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Before I start to cry
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You dirty Trumper you
5 people in black robes making decisions for 300 million plus Americans is pure tyranny. Period.
The fact that the Supreme Court has all too often legislated its own policy preferences in the guise of constitutional jurisprudence does not render Marbury wrongly decided. On balance I think Marbury’s implicit acceptance of the judicial review was almost certainly correct, even inevitable given the constitutional framework. That the consequence, however, was not fully anticipated by the Framers — i.e., the temptation of the judiciary to misbehave — is evidenced by the clumsy and inadequate checks granted to the other two branches. Moreover, judicial review does not in and of itself necessarily require deference from the other branches beyond the case at issue.
Judicial review at one time Mike may have seemed harmless enough, although I think the Dred Scott decision would have given one pause. Now I think it is an experiment that has failed. Under the guise of protecting our constitutional rights, we lose our most precious civil right, the right to rule ourselves, and leave an ever expanding role in public life to the whims of a judicial oligarchy.
Don, my post was not intended to be a comment on the wisdom of judicial review, but its conceptual legal correctness. I do think that the architecture of the constitution demands ultimately demands it.
As for whether it is a good thing or bad thing, on balance I favor it. The very idea of a constitution is inimical to the notion that popular elections are the only redress for a legislative denial of constitutional rights. Of course, I acknowledge that Court’s propensity to act as a super-legislature is outrageous. But even the most imperfect execution of judicial review never led Justice Scalia to question its correctness in principle, and I join with the late Justice.
The Supreme Court and various federal court (the Ninth Circuit Court of Appeals) have become Caesar.
I see the only solution is a revolt, be it peaceful or otherwise. We will soon arrive at a tipping point. Washington, DC is beholden to no one but itself. The Government is the supreme special interest and seeks payoffs from all when writing legislation that ultimately benefits nobody outside of the Beltway.
“The very idea of a constitution”
That is all we are left with Mike under the current dispensation. The Court amends it each year and renders it unrecognizable from the text. Judge Posner gave voice to the contempt for the Constitution that I think many federal judges now possess:
“And on another note about academia and practical law, I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today. David Strauss is right: The Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18th-century guys were worrying about.
In short, let’s not let the dead bury the living.”
http://www.washingtontimes.com/news/2016/jun/27/richard-posner-no-value-in-studying-us-constitutio/
Our robed masters have forgotten the actual Constitution, and have also forgotten that it is only the Constitution that gives the power they wield any sort of legitimacy.
Don,
I agree that Posner’s remarks are disgraceful and fundamentally inimical to the concept of judicial review.