January 5, 1998



  Mike's Comment
of the Week
  Cool Site of the Week
  Comment Archives
  Industry Links
  Send us e-mail
    Mail Us

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?


Last Update:
Copyright ©1996 - 2000 Interscan Corporation. All rights reserved.
All other trademarks are the property of their respective owners.