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The Confederate Lawyer
April 26, 2012

Marbury v. Madison
by Charles G. Mills
fitzgerald griffin foundation

GLEN COVE, NY — According to President Obama, it would be unprecedented if the Supreme Court were to declare an act of Congress unconstitutional.

Whether he truly believes this statement is dubious. Some observers, like Professor Lino Graglia of the University of Virginia, believe the power of the Court extends only to acts that directly contradict the plain language of the Constitution. Others believe the Constitution empowers the Court to find rights not even remotely mentioned. Still others believe that only the Supreme Court -- and not the other two branches of government -- can construe the Constitution; accordingly, for these advocates, the President has no duty to veto unconstitutional laws and Congressmen have no duty to vote against them.

Virtually everyone who has anything to say on the subject cites the 1803 case of Marbury v. Madison, which most fail to understand. William Marbury was one of many judges appointed by John Adams in the last days of his administration. Marbury was appointed as a justice of the peace for the District of Columbia. His commission was signed and sealed during the Adams administration, but the Jefferson administration refused to deliver it to him, maintaining that his appointment was not effective until it had been delivered. Marbury sought a writ of mandamus in the United States Supreme Court ordering the Secretary of State to give him his commission.

The Supreme Court ruled that Marbury was entitled to his commission, that he was entitled to a writ of mandamus, and that he was not entitled to a writ of mandamus from the Supreme Court unless he had previously been denied such a writ in a lower court — because the law authorizing the Supreme Court to take the case was unconstitutional. The Constitution specifically lists the kinds of cases that the Supreme Court may take as the first court to hear them, that is, by original jurisdiction. Marbury’s case was not one of them.

Chief Justice Marshall is usually credited with brilliance in finding a way not to rule against the Jefferson administration and in expanding the power of the Court. He was brilliant in this case, but not in the way conventionally believed. He managed to simultaneously avoid directly ordering the administration to do something and to explain why the administration was legally obligated to do it.

Jefferson hated the decision for the rest of his life. His antipathy was based not on the ruling’s affirmation of judicial review of statutes, a view Jefferson shared. Rather, Jefferson believed that Chief Justice Marshall should have considered the constitutional question first and, finding that original jurisdiction was unconstitutional, refused to comment on Marbury’s rights.

Jefferson believed that Marshall’s reasoned explanation of why Marbury was entitled to his commission was not part of the basis of Marbury v. Madison and was not binding in future cases. He complained that the lower courts were constantly relying on Marbury to order the issuance of commissions. Indeed, the District of Columbia Circuit Court’s ruling in the 1803 case of More v. United States that a statute abolishing certain District of Columbia justice of the peace fees was unconstitutional was considered so routine that it was ignored by the law books and reported only in the most partisan Republican newspapers.

The great effect of the Marbury case was to protect all the “midnight” judges appointed in the last days of the Adams’ administration without a confrontation with Jefferson. That is what Marshall wanted, and he got it.

Marbury was indeed the first case in which the Supreme Court clearly announced its right to declare acts of Congress unconstitutional, but that was hardly a major event. In Hayburn’s Case in 1792, the Supreme Court justices each wrote a separate published opinion refusing to take on duties Congress had imposed on them on the ground that Congress acted unconstitutionally. It is well known that Hamilton and the Federalists supported judicial review of acts of Congress. Less known is that in 1798 Jefferson wrote that the judges could protect citizens from any act of power unauthorized by the Constitution. Madison in a 1799 report to the Virginia legislature pointed out that judges were more effective vehicles than resolutions to stop unconstitutional power from being exercised.

Federalists and Republicans alike looked to the courts as the courts as the most effective means of overturning tyrannical laws. Indeed, no other conclusion is possible. Who but the judiciary stood between Congress and the President and tyranny? The very section of our Constitution relied upon by Marshall, however, also empowers Congress to place limits on the power of judges. This kind of balance is the genius of our Constitution. Congress should look to its own power when the Supreme Court disturbs the Constitution, just as the Supreme Court has always constrained Congress when necessary.

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The Confederate Lawyer column is copyright © 2012 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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