Further Thoughts on Marbury
v.
Winfield
H. Rose
Originally published in PS:
Political Science & Politics, XXXVII # 5, July 2004, pp.
391-395.
First,
let me say I am not arguing
that judicial review is invalid because its foundation in Marbury
v. Madison is invalid. I
thought I made that clear
when I said, “Judicial review is firmly established; it is not
going to
be
undone, and rightfully so.”(2003, 213). Judicial
review is
a
concept whose
ancestry can be traced back through Aquinas to Cicero, if not further,
and I
agree with the principle that a law which contradicts a higher law is void. Also, I am familiar with the 78thFederalist
and its arguments and concede that Marshall’s
theoretical justification of judicial review in Marbury
v. Madison is persuasive, especially on first impression.
My
problem is with the foundation or beginning premise of that
justification.
Second,
we should recall that
Marshall’s predecessor as Chief Justice, Oliver Ellsworth, had
been a
prominent member of the Constitutional Convention and was the principal
author
of the Judiciary Act of 1789 as a member of Congress (Brown 1905,
184-199). Albert J. Beveridge says
Ellsworth was “one
of the greatest lawyers of his time and an influential member of the
Constitutional Convention” and goes so far as to call the
Judiciary Act
of 1789
the Ellsworth Judiciary Act. Beveridge
continues that
12 other Framers, including James Madison, were members of the first
Congress
and voted for the act (1919, III, 128-129). Thus, if we may be so
bold
as to assume
they knew the Convention’s intentions, it is not likely that the
Judiciary Act of 1789 would have contained a provision that violated
the
Constitution. And, I find it strange
that John Marshall, who had been neither a delegate to the Convention
nor a member
of the first Congress, should know more about the Constitution and the
law in
question than 13 men who had done both.
Speaking
of the Judiciary Act of
1789, Beveridge continues:
Furthermore, from the organization of the Supreme Court to that moment, the bench and bar had accepted it, and the Justices of the Supreme Court, sitting with National district judges, had recognized its authority when called upon to take action in a particular controversy brought directly under it. The Supreme Court itself had held that it had jurisdiction, under Section 13, to issue a mandamus in a proper case, and had granted a writ of prohibition by authority of the same section. In two other cases this section had come before the Supreme Court, and no one had even intimated that it was unconstitutional (129-130).
Third, if we grant, for
the sake of
argument, that Marshall was correct in ruling section 13 of the
Judiciary Act
of 1789 unconstitutional, the constitutional breach it committed was
infinitesimal compared to that of the Judiciary Act of 1802. It
will be
recalled
that the Judiciary Act of 1802 repealed the Judiciary Act of 1801 and
thereby
returned the Judiciary Act of 1789 to full force and effect. Though its timing was bad, the Judiciary Act
of 1801 was actually a good piece of legislation in that it created 16
new
circuit judgeships so that Supreme Court Justices no longer had to ride
circuit. Out-going President John Adams
nominated and the lame-duck Senate confirmed the new judges
just days before
Recall
that Article II, Section 4 of
the Constitution reads as follows (and I am quoting it correctly): "The President, Vice President, and all civil
Officers of the
Yet,
the Judiciary Act of 1802
removed those 16 new circuit judges simply by abolishing their
positions and,
needless to say, the compensation that went with them.
Let
us suppose that, today, the Republican majority in Congress and the
Republican
president in the White House undertook to remove President Clinton’s
two nominees to the Supreme Court by abolishing their positions, i.e.,
changing
the size of the Court from nine justices to seven, effective immediately. That would be analogous to
what
President
Jefferson and his Congressional colleagues did in 1802, and they
succeeded whereas
today such an effort is unthinkable.
This
matter reached the Supreme Court
in the case Stuart v. Laird (5 U. S. 299 [1803]), the
opinion
of which
was announced six days after Marbury.
Chief
Justice Marshall recused himself, as I
believe he
should have done in Marbury,
“having tried the
cause in the court below,” and Justice Paterson delivered the Court’s short and perfunctory opinion. No
one, however, will ever convince me that Marshall did not orchestrate
the
outcome from behind the scenes because the political environment was
much too
dangerous for him to allow the Court to proceed without his guidance on
such an
important matter.
The
removal of the 16 circuit judges
was addressed in this manner:
. . . Congress have constitutional authority
to establish
from time to time such inferior tribunals as they may think proper, and
to
transfer a cause from one such tribunal to another.
In
this last particular, there are no words in the constitution to
prohibit or
restrain the exercise of legislative power. . . .
Paterson
continued:
My
critics dismiss Jefferson and the
volatile political environment of the Marbury
decision as discussed in my original article whereas I say the decision
cannot
be understood apart from that environment1, and Stuart
v. Laird
provides further proof of the politics of the situation.
If
the Supreme Court had addressed the truly serious Constitutional breach
of
removing duly-appointed judges by abolishing their positions by
declaring the
Judiciary Act of 1802 unconstitutional, it is very probable that the Jeffersonians in Congress would have cleared the
bench by
impeachment. Beveridge makes it
clear that
this was a
distinct possibility about which Marshall was greatly concerned (ch. IV). That being entirely too risky,
Marshall
turned his
attention to a defenseless orphan, Section 13 of the Judiciary Act of
1789,
which he could attack without fear of reprisal even though, according
to Beveridge, he himself believed the
Judiciary Act of 1802 to
be unconstitutional (122).
About
this Shane and Bruff say that
there was substantial opinion that the repealer
was unconstitutional, and would be invalidated by the courts. . . .The
possible
defects in the legislation were that it deprived the new circuit judges
of
their jobs, and that it made Justices part-time inferior court judges
by
restoring circuit-riding. . . .Marbury
was
small potatoes next to Stuart. The
latter
raised broad issues about the shape of the federal judiciary, and the
challenged legislation was obviously a major part of the partisan war
over the
courts. . . .If the doctrine of judicial review had been announced - and enforced - in
Stuart . . . the Court would have invited serious retaliation by
outraged Republicans in Congress (1996, 82-83, references omitted.).
.
Fourth,
another topic not mentioned
by my critics is the other scholars I consulted and cited. It
was Edward S. Corwin who wrote, “In short there was no valid
occasion
in Marbury v. Madison for any inquiry by
the court into its
prerogative in relation to acts of Congress. . . .To speak quite
frankly, this
decision bears many of the earmarks of a deliberate partisan
coup”
(1914,
542-543). And, William W. Van Alstyne
said
that
The clause readily supports a meaningful
interpretation that the Court’s
original
jurisdiction
may not be reduced by Congress, but that it may be supplemented by
adding to it
original jurisdiction over some cases which would otherwise fall only
within
its appellate jurisdiction. Such a
reading
makes sense
and makes no part of the clause surplusage
(1969, 31-32, emphasis added).
Let us
return to the last sentence of
the quote from David P. Currie in my original article: “Marshall
himself was to
reject the implications of the Marbury
reasoning in Cohens v. Virginia
[19
U.S. 392, (1821)], where he declared that Congress could grant
appellate
jurisdiction in cases where the Constitution provided for
original”
(1985,
69). Marshall and his supporters would, no doubt, disagree with
this
contention
but it is undeniable that: (1) Article III, section 2, paragraph 2,
sentence 1
says that “In all cases . . .in which a State shall be party, the
supreme Court
shall have original Jurisdiction.” Please note the phrase
“In all
cases”; (2) the state of Virginia was a party to this case; and
(3)
pursuant to
section 25 of the Judiciary Act of 1789, the Supreme Court heard the
case under
its appellate jurisdiction. Now, it
seems
to me that
an exception has been made here somewhere.
Moreover,
if appellate can be an exception to original, as in Cohens,
why can’t original be an exception
to
appellate, as
in Marbury, per Van Alstyne? The
answer is, of course, is that it can be because making an exception to
appellate
jurisdiction could mean changing it to original jurisdiction2.
About Cohens,
Currie later states that
It was further contended that, if the Supreme
Court
could exercise jurisdiction at all, that jurisdiction must be original
rather
than appellate. . . .Marshall had two answers for this argument…The
first required the embarrassment of retracting much of the reasoning he
had
used in Marbury v. Madison;…he
demonstrated in Cohens that the
Framers could hardly have meant to
prohibit Congress from giving appellate jurisdiction where the
Constitution
provided for original, and he left the Marbury
holding essentially bereft of support (100-101).
Andrew C.
McLaughlin says that “There was. . .no real need of declaring a
certain
portion
of the Judiciary Act of 1789 unconstitutional.
I
do
not believe any court would now take that position.
The
learned Justice really manufactured an opportunity to declare an act
void”
(1928, 157).
J. A. C. Grant
puts it this way:
Even after deciding that Marbury
was entitled to his commission and that mandamus was a proper writ,
there was
no necessity for holding that the statute involved was
unconstitutional. . .the
correctness of the Court’s
conclusion that
Congress
cannot add to the original jurisdiction of the Supreme Court is
anything but
certain. . .There are two very different views as to the proper
interpretation
of this [the exceptions] clause. The
first
is that the
grant was non-exclusive and could be added to by Congress.
This
was the view, according to the Court, taken by the first Congress in
1789, in
giving it jurisdiction to issue writs of mandamus in cases not
otherwise
falling within its jurisdiction. The
contrary view is that the grant was exclusive, and could not be altered
by Congress. This was the view taken
by
Marshall and the Court
[and by my critics]. However, this construction has not been
consistently
followed. . .the Court itself has rejected Marshall’s
narrow construction of this provision of the Constitution.
If
the value of the two doctrines be considered, apart from any narrow
legal
question, the view of Congress is undoubtedly the better. . .Thus we
are led to
conclude. . .that the statute, properly construed,. . .raised no issue
of
constitutionality (1929, 676-677).
. . . the Marshall Court frequently manipulated
various federal statutes and jurisdictional grants in order to avoid
handing
down blunt judicial challenges to hostile political forces (1995, 68).
. .Marshall’s manipulation of
Virginia and federal law
in Cohens supports claims that he and his
brethren
were willing to twist legal authorities to reach predetermined
results.
. . In Cohens and Marbury,
the court strained legal texts and precedents to reach judicial
rulings
that by their very nature could not be disobeyed by hostile political forces. Just as scholars believe that
Marshall manipulated
the Judiciary Act of 1789 to avoid ordering Jefferson to hand over
William Marbury’s judicial
commission, so
Marshall seems to have deliberately
misread federal law in order to avoid overturning Virginia’s
ban on the sale of out-of-state lottery tickets. . . .As used by the
Marshall
court in Cohens and Marbury,
the passive-aggressive virtues were the means by which judicial power
could be
asserted without actually being exercised.
Thus,
when
scholars look at what the Marshall Court did in Cohens
and other cases instead of what the Justices said, the evidence
indicates that
judicial review was not well established by 1821. In what sense,
after
all, can
a court be thought to possess the power to declare laws
unconstitutional when
the Justices consistently distort legal texts to get results
that will
not have to be enforced? (70-71, emphases added)
The Marshall Court unanimously ruled that
“a
case
arising under the constitution or laws of the United States, is
cognizable in
the Courts of the Union whoever may be parties to the
case.”
Contrary
to a
literal reading of Article III, Section2 and explicit statements in Marbury, the Justices found that Congress
could
constitutionally vest the Supreme Court with the power to hear appeals
from
cases in which a state was a party (78-79, footnotes omitted).
He
also says,
Finally,
I will address the issue of
the intentionality of the misquote.
Obviously,
Graber’s argument above supports my
contention that Marshall’s misquote
of
Article III was intentional. This
issue will always be a matter of opinion, but I believe the evidence is
persuasive.
First
is the matter of certain
ethical ambiguities in Marshall’s
early
career on the
bench. I am disturbed by the fact
that he
served as
both secretary of state and chief justice at the same time, continuing
in the
former after he had been sworn in as the latter until the end of
Adams’
term. The Marbury
case
would never have arisen had he, as secretary of state, not failed to
deliver Marbury’s commission, and
that
tells me Marshall should
have recused himself from the case. He
had absolutely no business participating in a case that his own
negligence had caused. Yet, he did so. Of this
James Bradley Thayer says, “It may reasonably be wondered that
the
Chief
Justice should have been willing to give the opinion in such a case,
and
especially that he should have handled the case as he did. But
he was sometimes curiously regardless of conventions”
(1967, 62,
emphasis added).3
There
is also the issue of his
biography of Washington, which he undertook as a money-making venture
shortly
after becoming chief justice. Speaking
of
the first
volume, Beveridge says that, “The
volume
is poorly
done; parts are inaccurate. . . .Marshall admits that every event of
the
Revolutionary War has been told by others . . .and
that he had copied these authors, sometimes using their very
language”
(242-243, emphasis added). Beveridge
also
observes
that “It would seem that for a long time Marshall tried to
conceal the
fact
that he was to be the author; and, when the first volume was about to
be
issued, strenuously objected to the use of his name on the
title-page”
(228).
Thus, parts of the book were inaccurate; in some instances he had
copied the
words of other authors verbatim, and wanted the money from the
venture
but not his name on the title page.4 That
is understandable.
It goes
without saying that the Aaron
Burr treason trial in 1807 was another controversial episode. Of
its many parts, the most relevant here is what is called the Wickham dinner party in Richmond, Virginia. Marshall
was presiding over the case while riding circuit and had released Burr
on bail. Wickham was an old friend
and Burr’s
chief counsel; he had a dinner party at his home to which he invited
both Burr
and Marshall, and they both attended. There
is
disagreement about whether Marshall knew beforehand that Burr had been
invited;
Beveridge says that it was “most
improbable
that he
knew that Burr was to be at the Wickham
dinner” (396)
but Thayer says that Marshall “accepted the invitation before he
knew
that Burr
was to be of the company” but then learned that Burr was going to
be
there and
attended anyway (1967, 64). Thayer continues that “He
[Marshall]
sat . .
. at
the opposite end of the table from Burr, had no communication with him,
and
went away early” (65). Regarding Burr, I cannot determine
what
Marshall
knew and
when he knew it but I can state that he knew, when he accepted his
invitation,
that Wickham was Burr’s
chief counsel. They may have been
old
friends who had
known one another for years but it was highly improper for Marshall to
attend
such a function in Wickham’s home at
that time. And, if Marshall did know
that Burr
would
be present,
his breach of ethics was even more severe.
Thayer
ends
his discussion of the subject with these words: “But we must
still
wonder at an
act which he himself afterwards much regretted” (65).
Second
are references such as that of
Samuel Eliot Morison: “By a legal twist, which the Jeffersonians
considered mere chicanery, the Chief Justice managed to deliver an
opinion
which has become classic” (1965, 363, emphasis added).
Another is
that
of Henry
J. Abraham: “John Adam’s great
achievement
was his
appointment of John Marshall. No one
has
had a more
profound impact on Court and Constitution than the crafty,
hedonistic,
and brilliant Virginian” (1999, 61, emphasis added). And,
another
is
from Beveridge: “It was not, then, Marshall’s
declaring an act of Congress to be unconstitutional that was innovating
or revolutionary. The extraordinary
thing
was the pretext
he devised for rendering that opinion – a pretext which,
it
cannot be
too often recalled, had been unheard of and unsuspected hitherto”
(133,
emphasis added). Beveridge continues
on the
same page,
“Nothing but the emergency compelling the insistence, at
this
particular
time, that the Supreme Court has such a power, can fully and
satisfactorily
explain the action of Marshall in holding this section [13] void”
(emphasis
added).
Other
references come from Max
Lerner, who put it this way:
By a maneuver he
managed to administer a public
spanking to the administration, assert judicial supremacy, yet leave
Jefferson
helpless to strike back. . . It mattered little to Marshall
that if his
conclusion was valid and the Court had no jurisdiction, everything
before it
was superfluous–a vast obiter
dictum
that was
sheer political maneuver. It
mattered little to
him that none of the opposing counsel had argued that the section of
the
Judiciary Act was unconstitutional, and that in order to declare it so
he had
to wrench it beyond all principles of statutory interpretation
(1939,
407, emphases added).
I do not believe the
choice of these
words is accidental. Neither do I
believe
that Marshall’s misquote of Article
III,
Section 2, paragraph 2
is accidental. It is not that the
source
was obscure. It is not that the
relevant
passage was long or convoluted. It
is not
that he had little time to prepare the
opinion. To the contrary, the source
was
readily
available, it is short in length, and he had plenty of time (a year or
so,
since Congress had given the Court a 14-month vacation) to prepare the opinion. Moreover, if he can quote the
Constitution
correctly in several other places, he could have quoted the
Constitution
correctly in this instance had he wanted to.
My critics cannot deny the
misquote
but they deny its relevance. They
are
mistaken when
they do so. It is relevant because
it
changes the
meaning of the sentence to the way Marshall needed it to read to
accomplish his
objective of finding an option in addition to the unacceptable options
of
denying Marbury’s petition for want
of
jurisdiction
or issuing the writ of mandamus to Madison.
The
most
effective way, if not the only way, to find Section 13 unconstitutional
was to
remove the exceptions clause. If
this is
not true, why
did Marshall not quote it correctly?
How
hard
would it have been to get it right? Does
it
not matter? Was he simply careless
and sloppy? I
think not. Beveridge says that,
“Marshall
determined
to annul Section 13 of the Ellsworth Judiciary Act of 1789”
(132). To do
so, he
rewrote the relevant part of the Constitution to establish the pretext
that Section
13 violated the Constitution, and history has not called his hand for
200 years. It is really quite
simple, his
defenders to the
contrary notwithstanding.
Marshall revealed his
intentions two
paragraphs prior to the misquote:
The act to establish the
judicial courts of the United
States authorizes the supreme court,
“to
issue writs
of mandamus, in cases warranted by the principles and usages of
law, to
any courts appointed or persons holding office, under the authority of
the
United States.” [This is another correct quote.] The
secretary of
state,
being a
person holding an office under the authority of the United States, is
precisely
within the letter of this description; and if this court is not
authorized to
issue a writ of mandamus to such an officer, it must be because
the law
is unconstitutional.
Res ipsa
loquitur: the thing speaks for itself.Thus, in derivation but not influence one
may
conclude that Marbury v. Madison
is a
gigantic hoax. No, it was not lofty
jurisprudence; it
was utterly saturated with politics.Max
Lerner put it
this way:
1. For a
theoretical discussion of the politics of
judicial decision making, see Jack W. Peltason,
“A Political
Science of Public Law,”The
Southwestern
Social Science Quarterly 34 (September 1953): 51-56.
2. Exception
defined as “a case to which a rule does not
apply.”
3. Both
McLaughlin (1928, 157) and Grant (1929, 678) also
call attention to this issue.
4. From the way
Beveridge put
it, his meaning was that Marshall used the words without permission or
attribution.
Abraham, Henry J. 1999. Justices,
Presidents, and
Senators: A History of the U.S. Supreme Court Appointments from
Washington to Clinton. Lanham,
MD: Rowman & Littlefield
Publishers.
ADDENDUM: