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


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.

Nevertheless, this trivial squabble over a few petty political plums was of vital importance for later American history. For with the expansion of the federal government into new areas of activity in more recent times, the power of the Supreme Court to nullify acts of Congress has been repeatedly employed, with profound effects. At various times legislation concerning the income tax, child labor, wages and hours, and many other aspects of our social, economic, and political life have been thrown out by the Court, and always, in the last analysis, its right to do so has depended upon the decision John Marshall handed down to escape from a dilemma of his own making.