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.
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