Conservatives
and libertarians often talk about our "imperial" court
system, with its lifetime appointees answerable to no one. They
will tell you that the activist court goes all the way back to
Marbury v. Madison.
Do you know
that the verdict in this case actually limited the Court's
power?
Following
the loss of the presidency and Congress in the election of 1800,
the lame-duck Federalist Congress enacted the Judiciary Act of
February 3, 1801, creating 58 new federal judgeships and new circuit
courts. Two weeks later, Congress created 42 justices of the peace
in the District of Columbia. Chief Justice Oliver Ellsworth resigned,
and President John Adams named Secretary of State John Marshall
to replace him.
The judicial
commissions were signed by President Adams, and the Seal of the
United States affixed by the Secretary of State the same day.
But Adams' term expired the next day, March 4, 1801, before the
commissions could be delivered. The new Secretary of State, James
Madison, acting under orders from Republican President Thomas
Jefferson, refused to deliver the commissions.
One of these
appointments was given to William Marbury, who was appointed to
be a justice of the peace of the District of Columbia. Marbury,
joined by three other similarly situated appointees (Dennis Ramsay,
Robert Townsend Hooe, and William Harper), petitioned the Supreme
Court, on January 31, 1803, for a writ of mandamus (we command)
compelling delivery of the commissions. Section 13 of the Judiciary
Act of 1789 provided that such writs might be issued.
On February
24, 1803, the Supreme Court dismissed Marbury's suit on the grounds
that the Court lacked jurisdiction. Chief Justice Marshall declared
that section 13 of the Judiciary Act of 1789 had empowered the
Court to issue writs of mandamus in such cases, but that this
was in violation of the Constitution and, therefore, the Court
held the law null and void.
Chief Justice
Marshall, a staunch Federalist, did not want to condone Jefferson's
actions, but he also did not want to risk ordering the administration
to deliver the commissions. What if Jefferson and Madison simply
ignored him?
He solved
this dilemma by writing a strong opinion condemning Jefferson's
acts as illegal, but refusing to issue a compliance order. To
do so, Marshall concluded, would be unconstitutional.
This was an
incredibly shrewd maneuver on Marshall's part, since he had given
the immediate victory to President Jefferson against Marbury and,
yet, had also established the principle of judicial review - a
power which the Constitution did not specifically provide for,
and one which has significantly affected relations between Congress
and the Court ever since.
So, the immediate
effect of the decision was to deny power to the Court, but its
long-term effect has been to increase the Court's power by establishing
the rule that "it is emphatically the province and duty of
the judicial department to say what the law is."
In one stroke,
Marshall embarrassed Jefferson, protected his own position, and
claimed for the first time the power to review acts of Congress
as unconstitutional.
The hallowed
principle of judicial review: Founded on a purely political act
and introduced as a clever gambit, with sacrificial lambs along
the way. How much worse are things today?