Foreword: a silk purse?

• Author: Noonan, Jr., John T.
• Position: Evaluation of Marbury v. Madison

On March 2, 1801, President John Adams appointed forty-two persons to be justices of the peace in the District of Columbia. (1) John Marshall, doubling as Secretary of State as well as Chief Justice, failed to deliver the commissions. Adams's term expired. James Madison, Marshall's successor as Secretary of State, withheld seventeen of the commissions. In 1802, William Marbury and three other appointees to this minor office brought mandamus against Madison in the Supreme Court. (2) Madison was ordered to show cause why the writ should not issue. Congress abolished the June sitting of the Court. Only in 1803 was the case argued.

In an opinion famous for its brilliance and its bluntness, Chief Justice Marshall wrote: "It is emphatically the province and duty of the judicial department, to say what the law is." (3) And he went on to say that if the law and the Constitution are in conflict, "the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty." (4) The conflict was resolved by the justices' oath to uphold the Constitution. (5) On that premise, Marshall held the Judiciary Act of 1789, authorizing the Supreme Court to issue writs of mandamus, violated Article III of the Constitution and was therefore void. (6) The court was without jurisdiction to hear Marbury's suit. The icing on the cake--John Marshall's special brand of icing (7)--was that the side that hated his principle, Madison's side, could not appeal his conclusion because it had won the case.

A silk purse out of a sow's ear? The case arose from a failure in Marshall's duty as Secretary of State, a failure for which he feared "some blame may be imputed to me." (8) The decision held unconstitutional a provision of the Judiciary Act passed by a Congress dominated by Federalists and containing at least thirteen Framers of the Constitution. (9) The decision invalidated a provision already used by the Court without question to decide a case. (10) The decision held the Court to be without jurisdiction to hear the suit, so what more could the Court say than that it lacked jurisdiction? (11) The general statement of the Court's duty to void unconstitutional statutes must have been dictum going far beyond the immediate issue. The dictum emerged against a political background in which the Jeffersonian Republicans, triumphant in the election of 1800, had announced plans to tame the antidemocratic rule of the Federalist judiciary; Marshall felt the need to confront the political challenge. (12) All of these aspects of Marbury are what made it a political can of worms or the proverbial sow's ear. Precedent for a court invalidating legislation existed in the practice of the highest court of Virginia. (13) Still, what nation had a court monitoring all its laws? The power of the court to interpret law was itself a great power. "Its interpretation makes the law," as an old maxim of the canonists puts it. (14) To go beyond interpretation to nullification was a quantum jump. But out of a bureaucratic bungle, a surprise attack on a statute enacted by the First Congress, and a disavowal of jurisdiction emerged an invention dazzling in its reach, supported by reasoning whose cogency seems undeniable. Marbury v. Madison, whose 200th anniversary we commemorate this weekend, does look like the proverbial silk purse.

It is my purpose tonight to put before you what Marbury has spawned and ask if it is a purse to be prized. First, some vital statistics. Since 1803, there have been 156 cases in which the Supreme Court has held acts of Congress unconstitutional. (15) This number is modest in comparison with the 1,150 cases holding state laws unconstitutional, (16) Of the 156 federal cases, ten have involved the District of Columbia, which was treated as a state might have been, (17) so that only 146 cases have involved the exercise of truly national power by Congress. The number of invalidations has been rising--only one from 1803 to 1866; only twenty-six for the entire nineteenth century; the remaining 120 from 1900 through 2002, with thirty-seven since 1986 by the Rehnquist Court. (18) If judicial activism means preferring judges' view of the constitutionality of legislation to that of legislators, this court has been the most judicially active court in our history.

I turn from statistics and trends to a different kind of question. Has John Marshall's invention been exercised for good, for bad, or for results that either did not matter or could have been reached by a different route?

By "a different route," I mean on the basis of a principle that did not make the Supreme Court supreme over the two other coordinate branches of the federal government on most questions of what the Constitution means. To illustrate what I mean, the Court in Marbury could have held that the judicial power was peculiarly within the competence of the judiciary, so that the Supreme Court alone had power to decide what jurisdiction Congress correctly conferred upon it. The assertion of the power to...