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
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
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.
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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