Marbury V. Madison The Case Of The “missing” Commissions


In this controversy over principle, Marshall and the Federalists were of necessity the aggressors. The administration boycotted the hearings. After Lee’s summation, no government spokesman came forward to argue the other side, Attorney General Lincoln coldly announcing that he “had received no instructions to appear.” With his control over Congress, Jefferson was content to wait for Marshall to act. If he overreached himself, the Chief Justice could be impeached. If he backed down, the already trifling prestige of his Court would be further reduced.

Marshall had acted throughout with characteristic boldness; quite possibly it was he who had persuaded the four aggrieved justices of the peace to press their suit in the first place. But now his combative temperament seemed to have driven him too far. As he considered the Marbury case after the close of the hearings, he must have realized this himself, for he was indeed in a fearful predicament. However sound his logic and just his cause, he was on very dangerous ground. Both political partisanship and his sense of justice prompted him to issue the writ sought by Marbury and his fellows, but what effect would the mandamus produce? Madison almost certainly would ignore it, and Jefferson would back him up. No power but public opinion could make the executive department obey an order of the Court. Since Jefferson was riding the crest of a wave of popularity, to issue the writ would be a futile act of defiance; it might even trigger impeachment proceedings against Marshall that, if successful, would destroy him and reduce the Court to servility.

Yet what was the alternative? To find against the petitioners would be to abandon all principle and surrender abjectly to Jefferson. This a man of Marshall’s character could simply not consider. Either horn of the dilemma threatened utter disaster; that it was disaster essentially of his own making could only make the Chief Justice’s discomfiture the more complete.

But at some point between the close of the hearings on February 14 and the announcement of his decision on the twenty-fourth, Marshall found a way out. It was an inspired solution, surely the cleverest of his long career. It provided a perfect escape from the dilemma, which probably explains why he was able to persuade the associate justices to agree to it despite the fact that it was based on the most questionable legal logic. The issue, Marshall saw, involved a conflict between the Court and the President, the problem being how to check the President without exposing the Court to his might. Marshall’s solution was to state vigorously the justice of the plaintiffs’ cause and to condemn the action of the Chief Executive, but to deny the Court’s power to provide the plaintiffs with relief.

Marbury and his associates were legally entitled to their commissions, Marshall announced. In withholding them Madison was acting “in plain violation” of the law of the land. But the Supreme Court could not issue a writ of mandamus, because the provision of the Judiciary Act of 1789 authorizing the Court to issue such writs was unconstitutional. In other words, Congress did not have the legal right to give that power to the Court.

So far as it concerned the Judiciary Act, modern commentators agree that Marshall’s decision was based on a very weak legal argument. Section 13 of the Act of 1789 stated that the Supreme Court could issue the writ to “persons holding office under the authority of the United States.” This law had been framed by experts thoroughly familiar with the Constitution, including William Paterson, one of Marshall’s associate justices. The Court had issued the writ in earlier cases without questioning Section 13 for a moment. But Marshall now claimed that the Court could not issue a mandamus except in cases that came to it on appeal from a lower court, since the Constitution, he said, granted original jurisdiction to the Court only in certain specified cases—those “affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” The Marbury case had originated in the Supreme Court; since it did not involve a diplomat or a state, any law that gave the Court the right to decide it was unauthorized.

This was shaky reasoning because the Constitution does not necessarily limit the Supreme Court’s original jurisdiction to the cases it specifies. And even accepting Marshall’s narrow view of the constitutional provision, his decision had a major weakness. As the Court’s principal chronicler, Charles Warren, has written, “It seems plain, at the present time, that it would have been possible for Marshall, if he had been so inclined, to have construed the language of [Section 13 of the Act of 1789] which authorized writs of mandamus, in such a manner as to have enabled him to escape the necessity of declaring the section unconstitutional.”

Marshall was on more solid ground when he went on to argue cogently the theory that “the constitution controls any legislative act repugnant to it,” which he called “one of the fundamental principles of our society.” The Constitution is “the supreme law of the land,” he emphasized. Since it is the “duty of the judicial department to say what the law is,” the Supreme Court must overturn any law of Congress that violates the Constitution. “A law repugnant to the Constitution,” he concluded flatly, “is void.” By this reasoning, Section 13 of the Act of 1789 simply ceased to exist, and without it the Court could not issue the writ of mandamus. By thus denying himself authority, Marshall found the means to flay his enemies without exposing himself to their wrath.