Marbury's wrongness.

AuthorPaulsen, Michael Stokes
PositionEvaluation of Marbury v. Madison's case

Is it possible that everything in Marbury v. Madison--except for the theorem of judicial review--is wrong? Surely, in the colorful, confident words of Chief Justice Marshall in Marbury, such a proposition "is too extravagant to be maintained." (1) Such an assertion about the foundational case of American constitutional law would be "an absurdity too gross to be insisted on." (2)

But I insist: Just about everything in Marbury is wrong, including the holding. (3)

First, a thumbnail sketch of what the case holds and what the case asserts (in dictum): On application of William Marbury, the Supreme Court, acting (apparently) in original jurisdiction, issued an order to Secretary of State James Madison to show cause why a writ of mandamus should not be entered against him directing him to provide Marbury with his commission as a justice of the peace for the District of Columbia. Madison ignored the show cause order, the case was argued before the Court, and a year and a haft later (following various other interesting events involving the Republican Congress's actions with respect to the federal judiciary) (4) the Court made several distinct pronouncements. First, Mr. Marbury was entitled to his commission because his appointment had been, following last-minute Senate confirmation, signed by President John Adams and sealed by the Secretary of State for the outgoing Adams administration--John Marshall. That made the appointment complete, notwithstanding Marshall's failure to deliver it before the administration of President Thomas Jefferson took over. Consequently, Madison, Jefferson's cabinet officer, had a duty to deliver it. (5)

Second, the Court held, a writ of mandamus directed to Secretary Madison was an appropriate remedy. The courts may issue mandatory orders to executive branch officers, where there exists a legal duty that such officers are (in the judgment of the Court) violating. Of course, the Court would never pretend to tell the President or his officers how to perform their political duties--the Court should not decide such political questions--but where the law imposes a nondiscretionary ministerial duty on an executive branch officer, the Courts can order that officer to do his duty. (6)

The third question gave rise to the holding for which Marbury is justifiably celebrated--the theorem of judicial review, deduced from the structural and textual premises of constitutional supremacy. (7) That question was whether section 13 of the Judiciary Act of 1789 legitimately conferred original jurisdiction on the Supreme Court to issue the writ of mandamus. The Court construed section 13 as authorizing such action by the Court, but concluded that this enlarged the original jurisdiction of the Court in violation of the Original Jurisdiction Clause of Article III of the Constitution. (8) Finally--here comes the proposition of judicial review--the Court held that it could not properly give effect to an unconstitutional statute of the legislature. (9) Thus, the Court lacked proper jurisdiction and could not grant Marbury the requested writ of mandamus.

How many things are probably wrong with this picture? At least six, by my count.

  1. For openers, why should William Marbury's appointment (or anyone else's) be considered complete when it has been signed and sealed, but not delivered? If the President, through his subordinates, has not bestowed the commission on an officer of the United States--has not given it to him--has he really been commissioned as an officer of the United States? Does he really hold the office if he doesn't hold the "deed" denoting him the officeholder? Chief Justice Marshall's opinion on this score has always struck me as dubious, and the best evidence of the "mischief" theory of the opinion. If an appointment is complete upon signing by the President (for the life of me I cannot figure out what possible constitutional significance affixing the seal of the United States might have), then delivery is utterly immaterial. If that is the case, then Marbury had no real beef with Madison in the first place. He was legally appointed the nanosecond that President Adams signed the commission. He did not need to sue for delivery of the commission. All he needed to do was ride to the tailor, order a nice robe made, and walk into the courthouse and start deciding cases.

    In fact, why didn't he do so after Chief Justice Marshall issued his (advisory) quasi-declaratory-judgment opinion in Marbury v. Madison? (10) After all, the opinion "holds" (after a fashion) that Marbury was lawfully appointed, because an appointment is complete upon signing and sealing. Surely no one would dispute his authority now!

    Ah, but who would pay his salary? There's the rub--and, probably, the real nub of the dispute. What would happen when Marbury, after deciding cases for a few weeks, demanded his pay? President Jefferson almost surely would have directed his subordinates that Marbury was not a judge and should not be paid from the treasury. (In fact, President Jefferson might even have ordered this Judge Pretender removed from the courthouse.)

    Thus, the real underlying dispute probably was whether William Marbury would be paid for the gig. Delivery of the piece of paper itself was no big deal. As Marshall wrote for the Court, delivery concerns "a paper, which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents ...". (11) But the piece of paper would have been Marbury's proof that he was entitled to pay for his work. There was no way, however, that Marshall was going to order President Jefferson to pay Marbury's salary, for the simple reason that there was no way Jefferson would feel obliged to obey such an order. (12)

  2. This points to a second obvious flaw in the case. The salary issue--the real, concrete stake of the parties--should remind every student of constitutional law of the famous "removal power" line of cases: Myers, Humphrey's Executor, Weiner, and Morrison v. Olson. (13) Most of these were suits for salaries by fired executive branch officers. The constitutionally correct answer, which the Supreme Court has seldom gotten right, is that the President, as the sole repository of the executive power of the United States, must have the power to direct and control all exercises of executive power by all subordinate officers. (14) This means the President must have the power to countermand subordinates' actions and (though this is slightly less certain) to remove subordinates who are insubordinate.

    William Marbury was to have been a justice of the peace for the District of Columbia. True, this is in form a judicial office, but within the scheme of the Constitution, it is not an Article III judgeship but an agency, judicial in form, through which the national government administers the federal district over which it has exclusive jurisdiction. To cut to the chase, Marbury would have been the early nineteenth century equivalent of an administrative law judge--a glorified bureaucrat--whose administrative decisions should be subject to the President's direction and control and who should be removable at will by the President as a subordinate executive branch peon. Thus, even if Marbury were lawfully appointed, President Jefferson should have been able to remove him. (15) At the very least, the point is fairly arguable. (16)

    I think the better answer is that Marbury's appointment was never completed, and even if it was, he was a removable-at-will subordinate executive officer. In either event, it seems plain that Marbury was not legally entitled to serve as justice of the peace for the District, against President Jefferson's wishes. The most he might have been entitled to was damages in some form--recovery of a salary, if the office was wrongfully withheld.

  3. That leads to Dubious Holding Number Three. Why is mandamus to deliver a commission an appropriate remedy in the first place? If Marbury is not an Article III judge (Justice of the Peace for the District of Columbia was a five-year statutory office), why is not the appropriate remedy one for damages for a wrongfully withheld salary--the form of relief sought in the Myers-Humphrey's Executor line of cases? (17) My day job is as a Civil Procedure teacher, but alas, I teach modern-day civil procedure and enjoy a certain blissful ignorance of things archaic and procedural. (18) My perspective therefore tends to be somewhat anachronistic--critiquing common law procedures by way of modern perspectives--but sometimes anachronism, untainted by actual knowledge, is a good thing.

    I am reliably informed by people more knowledgeable about such things that, at the time of Marbury...

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