Marbury v. Madison 1 Cranch 137 (1803)

Author:Leonard W. Levy

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Marbury has transcended its origins in the party battles between Federalists and Republicans, achieving mythic status as the foremost precedent for JUDICIAL REVIEW. For the first time the Court held unconstitutional an act of Congress, establishing, if only for posterity, the doctrine that the Supreme Court has the final word among the coordinate branches of the national government in determining what is law under the Constitution. By 1803 no one doubted that an unconstitutional act of government was null and void, but who was to judge? What Marbury settled, doctrinally if not in reality, was the Court's ultimate authority over Congress and the President. Actually, the historic reputation of the case is all out of proportion to the merits of Chief Justice JOHN MARSHALLS unanimous opinion for the Court. On the issue of judicial review, which made the case live, he said nothing new, and his claim for the power of the Court occasioned little contemporary comment. The significance of the case in its time derived from its political context and from the fact that the Court appeared successfully to interfere with the executive branch. Marshall's most remarkable accomplishment, in retrospect, was his massing of the Court behind a poorly reasoned opinion that section 13 of the JUDICIARY ACT OF 1789 was unconstitutional. Though the Court's legal craftsmanship was not evident, its judicial politics?egregious partisanship and calculated expediency?was exceptionally adroit, leaving no target for Republican retaliation beyond frustrated rhetoric.

Republican hostility to the United States courts, which were Federalist to the last man as well as Federalist in doctrine and interests, had mounted increasingly and passed the threshold of tolerance when the Justices on circuit enforced the Sedition Act. (See ALIEN AND SEDITION ACTS.) Then the lame-duck Federalist administration passed the JUDICIARY ACT OF 1801 and, a week before THOMAS JEFFERSON'S inauguration, passed the companion act for the appointment of forty-two justices of the peace for the DISTRICT OF COLUMBIA, prompting the new President to believe that "the Federalists have retired into the Judiciary as a stronghold ? and from that battery all the works of republicanism are to be beaten down and erased." The new Circuit Court for the District of Columbia sought in vain to obtain the conviction of the editor of the administration's organ in the capital for the common law crime of SEDITIOUS LIBEL. The temperate response of the new administration was remarkable. Instead of increasing the size of the courts, especially the Supreme Court, and packing them with Republican appointees, the administration simply repealed the Judiciary Act of 1801. (See JUDICIARY ACTS OF 1802.) On taking office Jefferson also ordered that the commissions for the forty-two justices of the peace for the district be withheld, though he reappointed twenty-five, all political enemies originally appointed by President JOHN ADAMS.

Marbury v. Madison arose from the refusal of the administration to deliver the commissions of four of these appointees, including one William Marbury. The Senate had confirmed the appointments and Adams had signed their commissions, which Marshall, the outgoing secretary of state, had affixed with the great seal of the United States. But in the rush of the "midnight appointments" on the evening of March 3, the last day of the outgoing administration, Marshall had neglected to deliver the commissions. Marbury and three others sought from the

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Supreme Court, in a case of ORIGINAL JURISDICTION, a WRIT OF MANDAMUS compelling JAMES MADISON, the new secretary of state, to issue their commissions. In December 1801 the Court issued an order commanding Madison to show cause why the writ should not be issued.

A congressman reflected the Republican viewpoint when saying that the show-cause order was "a bold stroke against...

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