Its larger historical significance aside, Marbury v. Madison was not a particularly revelatory case. Unlike later decisions such as Dredd Scott v. Sanford or Brown v. Board of Education it did not raise questions about civil rights, the nature of American citizenship, or institutionalized discrimination. Indeed, the facts of Marbury v. Madison are quite mundane. They are, nevertheless, worth recounting, for they do provide a degree of insight into how the conflict between two political factions (in this case the Federalists and the Republicans) played itself out during one of the most violently partisan periods in American history. As well, Marshall’s decision made use of legal precedents taken from both British and American jurisprudence. The former provides evidence of the legal heritage of an entire generation of American lawyers, while the latter is proof of the slow but steady establishment of a body of law distinct to the United States. As with the facts of the case itself, the way in which it was argued provide a window into contemporary American political and legal culture; for that reason they too are worth examining.
The principles in Marbury v. Madison, from whom its name is derived, were William Marbury and James Madison. At the time the case was being heard Marbury was a well-to-do Maryland financier and devotee of the Federalists, while Madison was serving as Secretary of State in the cabinet of fellow Virginia Republican Thomas Jefferson. Their conflict concerned Marbury’s appointment to the office of justice of the peace in the District of Columbia and Madison’s refusal to deliver the appropriate commission of appointment. Marbury had been awarded the post as a consequence of the Judiciary Act of 1801, what has come to be known as the “Midnight Judges Act.” As mentioned previously this statute was an attempt by the outgoing Adams administration to effectively “stack the deck” of the federal judiciary in favor of the Federalists in an effort to stymie the policies of President Jefferson and his Republican allies. Among other things it reduced the number of Supreme Court Justices from six to five, created a number of new district and circuit courts, and established the appropriate vacancies for additional judges and legal officers (included justices of the peace). Marbury was among the forty-two loyal Federalist who were appointed justice of the peace by President Adams as a result, and whose commissions were approved by the outgoing Congress and handed to the Secretary of State (at that point newly-appointed Chief Justice John Marshall was still fulfilling the last of his former duties) to be delivered. Because there was not enough time for all of these commissions to be distributed before the new administration was sworn in, it fell to Madison as newly-minted head of the State Department to oversee the proper dissemination of the remainder.
Though Adams assumed that Madison would fulfill his constitutional duty and deliver the commissions, since they’d been signed and approved in the appropriate legal manner, this was not to be. With Jefferson’s approval Madison refused to render the last of the certifications, claiming that they had expired along with the term in office of their issuer (President Adams) and needed to be replaced with fresh nominations. One of the unlucky few whose appointment had been effectively invalidated, Marbury filed a petition with the Supreme Court for a writ of mandamus. An inherited British legal remedy, a mandamus is essentially an order handed down from a superior court that compels a lower court, corporation or public authority to perform or abstain from a specific action in line with established law. A mandamus cannot force a government agency to alter a decision it has already legitimately made, but it can oblige them to make a decision that they are legally required to make but have otherwise avoided altogether. In Marbury’s case, he called for a mandamus in order to compel Secretary of States Madison to deliver the commission to which he asserted he was legally entitled.
Because the petition was filed in the Supreme Court the case came to revolve around the question, not only of whether Marbury was indeed entitled to his commission but whether the Court was even legally permitted to hear the case and grant the mandamus. This uncertainty was a result of the apparent conflict between the jurisdiction granted to the Supreme Court by the Judiciary Act of 1789 and the United States Constitution, respectively. According to Article III of the latter the Supreme Court possesses original jurisdiction only over cases affecting ambassadors, ministers, and consuls, and in those in which one state is a party (meaning these sorts of cases can only be heard by the Supreme Court). In all other cases the Constitution grants the Court appellate jurisdiction, meaning they must originate in a lower court and be appealed up the ladder of the judicial hierarchy. The Judiciary Act of 1789, Marbury claimed, granted original jurisdiction to the Supreme Court over mandamus petitions, ostensibly contradicting the the Constitution.
The facts thus established, Chief Justice Marshall and his compatriots on the Court (Justices Chase, Paterson and Washington) gave the case their due consideration, and in accordance with what would become a well-established tradition Marshall rendered the opinion (which at 4-0 was unanimous) himself. As with most Supreme Court decisions it is not brief, and contains numerous references to legal precedents as a means of laying out the framework of its reasoning (in keeping with the traditions of common law). That these references originate in both American and British jurisprudence is telling. By 1803, when the decision in Marbury v. Madison was rendered, the United States had been an independent nation for less than thirty years. Just about every man of substance or authority in government, business or society in general had been born a British subject. Many of the more well-to-do had been educated overseas in British schools, or had otherwise been taught by way of curricula founded on distinctly British ideals. While the Founders certainly made use of a number of traditions of law and government that were distinctly American in origin their collective British past was in some ways inescapable. This was particularly true in matters of law. A great many American lawyers, even in 1803, learned their trade in British schools or by studying the seminal British texts on common law (chief among them Blackstone’s Commentaries). John Marshall was among the latter, and his references in Marbury v. Madison incline heavily in that direction.
Accordingly, the legal precedents and principles that the Chief Justice chose to invoke in Marbury v. Madison are overwhelmingly of British origins. Lord Blackstone and his Commentaries are referred to no less than five times, with each quotation attempting to established some principle or right fundamental to the British/American understanding of common law. The first, in the section dealing with the proposed claim of Marbury to a legal remedy for his woes, asserts a general rule that wherever there is a guaranteed right there must also be a guaranteed remedy when said right has been violated. The second, immediately following, presses forward the same argument by stating that any case which does not fall within the exclusive jurisdiction of, “either the ecclesiastical, military, or maritime tribunals are, for that very reason, within the cognizance of the common law courts of justice.” To this Blackstone (and Marshall) added that it was an, “invariable principle of the laws of England that every right, when withheld, must have a remedy, and every principle its proper redress.” Further quotations from Blackstone within Marbury v. Madison touch on the liability of officers of the crown to answer for abuses committed in the name of the monarch and the definition of a writ of mandamus within the common law. Worth noting within these excerpts are the numerous uses of words like “King” and “Crown.” Aside from Blackstone, Marshall also quoted Lord Mansfield, Chief Justice of the Kings Bench from 1756 to 1788 and noted common law reformer, as to when a mandamus might be called for and the nature of its essential function.
For the leader of the highest court in the United States to so unabashedly make reference to “the laws of England,” “the King’s Bench,” and “the Crown” while also paying a degree of homage to some of Britain’s preeminent legal authorities in one of his opinions might now seem rather strange. And certainly among President Jefferson and his cohort of Anglophobes it no doubt raised an eyebrow or two. While certainly a patriot and someone who was sensitive of his role in helping to define American legal practice, Marshall was responding to the case in the way his education had prepared him. Like so many aspiring lawyers before and after him who’d been raised in 18th century America, Marshall’s first and primary exposure to the basics of common law were the writings of Lord Blackstone. Noting like them existed in the colonies, nor in the states that succeeded them; American jurisprudence was too young, and common law thrives on tradition and precedence. Perhaps, if he had a mind to, Marshall could have scoured the annals of the various federal and state courts that had come into existence since the 1770s for legal standards to invoke, but to what purpose? To satisfy the nationalist leanings of certain of his countrymen? No, Blackstone spoke to the case before him, and British or not there were few sources of greater quantity or quality on the topic of common law in existence. To this should be added Marshall’s longstanding allegiance to the Federalists, who were generally sympathetic (or even affectionate) towards British culture and politics. These facts taken together, the Chief Justice’s choice of precedents becomes somewhat less mysterious.
That being said, there was doubtless a desire among American legal practitioners of the era to build up a body of law that was distinct to the history, culture and legal principles of the United States. Fortunately the basis of common law, which America had inherited from Britain and which revolved around the notion of precedent, quite easily allowed for this. All that was required was a sufficient amount of time to pass so that a history of judgements could be established. While the thirteen or so years between the adoption of the Constitution and Marshall’s decision in 1803 may seem like a very narrow timeframe in which to allow a process like this to occur, the Chief Justice made sure to bring at least one American precedent to bear along with numerous British ones. Specifically he described an incident dating from 1792/93. Congress, it seemed, had passed a law which directed the Secretary of War to place on a pension list the names of various disabled soldiers and officers that were nominated by the Circuit Courts. The law was subsequently deemed to be unconstitutional, but certain Circuit Court judges continued to nominate veterans in the belief that they could do so as specifically assigned commissioners and not as officers of the federal judiciary. A different nomination system was subsequently established, but the question remained whether or not the men that had been selected by the Circuit Courts in the meantime were still entitled to be placed on the pension roll. After a second piece of legislation directed the Secretary of War to join with the Attorney General in appealing to the Supreme Court for mediation, a mandamus directed at the Secretary was requested by a person who had been selected by a Circuit Court Judge to have his name added to the pension list. Upon considering the issue the Court declared that though a mandamus was not called for in that particular instance, such a writ could be directed, “to the head of a department directing him to perform an act enjoined by law, in the performance of which an individual had a vested interest.”
I hope I can be forgiven for delving into the details of a rather arcane piece of American legal history. In fairness I barely understand it myself, but I feel the point that Marshall was trying to make is clear enough. The Court had already ruled, in principle, that it was proper for an individual desiring the performance of a legally defined duty to request a mandamus be directed at the head of the applicable government department. Just as Henry Knox had been the head of the War Department in 1792, James Madison was the head of the State Department in 1803, and so was liable to have writs directed at him in a similar manner. This choice of precedent was ideal. Not only was it a decision that had been ruled upon by the Supreme Court of the United States, but it was one that seemed to deal specifically with at least one of the issues that was before the Court in 1803. Among the various question that Marshall felt Marbury v. Madison asked, one was, did Marbury possess the legal right to a remedy, and specifically a mandamus directed at the head of a government department? Though he chose to first appeal to the expertise of British legal scholars he ultimately landed on a relatively recent American example. This use of a domestic precedent amid various foreign ones is in some ways a testament to the function of common law in post-Revolutionary America, but also to the essential way that common law functions in any context. Cases are judged, decisions are based on past precedent, and new decisions inform future cases. In selecting this particular example Marshall was performing his function as a jurist as it had been defined to him by, among other things, his education (in which Blackstone loomed large), as well as his experience working within the American legal system in the years that followed the Revolution.