Marbury V. Madison -The Case of the “Missing” Commissions


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.

Although this was the first time the Court had declared an act of Congress unconstitutional, its right to do so had not been seriously challenged by most authorities. Even Jefferson accepted the principle, claiming only that the executive as well as the judiciary could decide questions of constitutionality. Jefferson was furious over what he called the “twistifications” of Marshall’s gratuitous opinion in Marbury v. Madison , but his anger was directed at the Chief Justice’s stinging criticisms of his behavior, not at the constitutional doctrine Marshall had enunciated.

Even in 1803, the idea of judicial review, which Professor E. S. Corwin has called “the most distinctive feature of the American constitutional system,” had had a long history in America. The concept of natural law (the belief that certain principles of right and justice transcend the laws of mere men) was thoroughly established in American thinking. It is seen, for example, in Jefferson’s statement in the immortal Declaration that men “are endowed by their Creator” with “unalienable” rights. Although not a direct precedent for Marshall’s decision, the colonial practice of “disallowance,” whereby various laws had been ruled void on the ground that local legislatures had exceeded their powers in passing them, illustrates the American belief that there is a limit to legislative power and that courts may say when it has been overstepped.

More specifically, Lord Coke, England’s chief justice under James I, had declared early in the seventeenth century that “the common law will controul acts of Parliament.” One of the American Revolution’s chief statesmen and legal apologists, James Otis, had drawn upon this argument a century and a half later in his famous denunciation of the Writs of Assistance (see AMERICAN HERITAGE for February, 1962). And in the 1780*5, courts in New Jersey, New York, Rhode Island, and North Carolina had exercised judicial review over the acts of local legislatures. The debates at the Constitutional Convention and some of the Federalist Papers (especially No. 78) indicated that most of the Founding Fathers accepted the idea of judicial review as already established. The Supreme Court, in fact, had considered the constitutionality of a law of Congress before—when it upheld a federal tax law in 1796 —and it had encountered little questioning of its right to do so. All these precedents—when taken together with the fact that the section of the Act of 1789 nullified by Marshall’s decision was of minor importanceexplain why no one paid much attention to this part of the decision.

Thus the “Case of the Missing Commissions” passed into history, seemingly a fracas of but slight significance. When it was over, Marbury and his colleagues returned to the obscurity whence they had arisen.∗ In the partisan struggle for power between Marshall and Jefferson, the incident was of secondary importance. The real showdown came later—in the impeachment proceedings against Justice Chase and the treason trial of Aaron Burr. In the long run, Marshall won his fight to preserve the independence and integrity of the federal judiciary, but generally speaking, the courts have not been able to exert as much influence over the appointive and dismissal powers of the President as Marshall had hoped to win for them in Marbury v. Madison . Even the enunciation of the Supreme Court’s power to void acts of Congress wrought no immediate change in American life. Indeed, it was more than half a century before another was overturned.

∗ What happened to Marbury? According to his descendants, he became president of a Georgetown bank in 1814, reared a family, and died, uncommissioned, in 1835.