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| MARBURY v. MADISON (1803) The case of Marbury v. Madison arose out of the partisan political battles of a new nation struggling to survive. Thomas leffcrson and the Republicans won the elections of 1800, The old lame-duck Federalist Congress was determined to establish a partisan bulwark in the judicial branch to counter the new Jeffersonian Republican government. To that end, Congress hurried to put in place sixteen new circuit court judges and an unlimited number of local justices of the peace for the District of Columbia. Adams appointed forty-two of them, along with scores of miscellaneous marshals, clerks, and doorkeepers. On his last day as president, Adams still needed to find, appoint, and seek Senate confirmation for all these judicial functionaries. By his usual bedtime of 9:00 on March 3, the job was done, and the sleepy president sent the commissions over to the State Department, where the secretary of state would affix the official seal. That, too, was done. But the process was not complete; one more crucial step needed to be taken. The commissions had to be delivered. The chore fell to a laid-back Virginia gentleman, soldier, politician, and moderate Federalist of the Adams persuasion, a decided and life-long enemy of Thomas Jefferson. This was John Marshall, forty-five years old, Adams's secretary of state, and a Federalist from Virginia. Not only was Marshall secretary of state in the Adams administration, he was also Adams's appointee for chief justice of the U.S. Supreme Court. But Marshall still occupied the secretary of state office for a couple of weeks into Jefferson's presidency because, despite their deep mutual animosity, Jefferson asked him to carry on briefly while his secretary of state—elect, James Madison, stood vigil by the bedside of his dying father. Marshall's relaxed southern habits betrayed him because he dallied, not seeing to the chore of delivering Adams's last minute justices' commissions. Among those left in the secretary's office when Madison took over was that of William Marbury. When Jefferson realized the extent of the Federalist rearguard action, he ordered Madison—now fully functioning as secretary of state—to withhold the commissions. Marbury went to court—to the U.S. Supreme Court—where John Marshall now sat as chief justice. Acting under a provision of the Judiciary Act of 1789 giving the Court original jurisdiction in cases involving "persons holding office under the authority of the United States," Marbury asked the court to issue a writ of mandamus ordering Madison to deliver the commission. Of course Marbury had a right to his commission, Marshall declared in his opinion. It had been signed and sealed; non-delivery did not invalidate it. But leaving it at that left Marshall face to face with Madison and Jefferson in a confrontation he knew he could not win. What to do? Marshall had an agenda, one element of which was to assert the authority of the judicial branch vis-a-vis the other two 'political" branches. While leaving wide latitude tor executive discretion as to the limits of its own authority, Marshall laid down principles of what we know now as negative judicial review. By doing just that, Marshall could articulate and perhaps canonize the Court's role as the ultimate voice on what the Constitution means—and at the same time keep that authority safely in the hands of Federalist partisans tor a long time to come. The U.S. Constitution says in Article III, Section 2, that, "In all Cases affecting Ambassadors, other public Ministers and consuls, and those in which a State shall be a Party, the Supreme Court shall have original jurisdiction. In all other cases . . . the Supreme Court shall have appellate Jurisdiction." But the Judiciary Act of 1789 extended original jurisdiction to "persons holding office under the authority of the United States." Wasn't that an alteration of the Constitution? And wasn't Congress limited by the terms of that document? The answer was yes. In the American legal hierarchy, the U.S. Constitution stands at the top: "A law repugnant to the Constitution is void." Thus, though Marbury's commission was legitimate, and he had a legal right to it, the Marshall Court found that the U.S. Supreme Court could not issue the writ of mandamus ordering Madison to deliver it. The ludiciary Act of 1789 violated the Constitution by altering the terms of the oricrinal jurisdiction of the Court; that jurisdiction, under the Constitution, did not extend to "persons holding office under the United States." Marbury, ultimately, lost his case. Within a political context in which he was a major player, and with an administrative error he himself perpetuated, Marshall found the materials to assert the Courts authority to declare congressional acts void. Marlmry v. Madison thus became the foundation for all subsequent judicial review of state and national legislation, cited by name to this very day in virtually every case where judges overturn misbegotten statutes.
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