Prudential argumentation and John Marshall's opinion in Marbury v. Madison (1803).

• Author: Southard, Bjorn F. Stillion
• Position: Report

The 1800 election of Thomas Jefferson as president and of a Republican majority in Congress was a pivotal moment in American history. This election marked the first time in the fledgling republic's existence that a new party took over both elected branches of government. It was also the first (and last) time that the U.S. House of Representatives was called upon to break an electoral vote tie and decide who would serve as president and as vice-president. Part and parcel to these historic firsts, the 1800 election marked the beginning of the end for the Federalist Party and the rise of Jeffersonian Republicanism. Significant changes gripped American politics. At the time, however, political actors from the Republican and Federalist Parties failed to take pause and appreciate their place in history. Instead, the picayune business of partisanship intensified. The election results compelled the outgoing Adams administration and the Federalist Congress to preserve Federalist influence in government. To that end, President John Adams and his terminal majority in Congress turned to the courts.

In the early months of 1801, Federalists engaged in a series of maneuvers that placed the judiciary--the supposed "least dangerous" branch (Hamilton, 1788/2003a, p. 472; see also Bickel, 1962)--amidst the contestation of partisanship. Certainly, the courts were politically-charged prior to 1801. When Jefferson's presidency began on March 4, not a single Republican was seated in any of the federal courts (Malone, 1970, p. 117). However, the contentious election of 1800 isolated the courts as a final battlefield on which Federalists might claim victory. Jefferson, himself observing the war-like maneuvering concerning the courts, claimed that the Federalists had "retired into the judiciary as a stronghold" (Jefferson, 1801/1905, p. 302). The Federalists' first move, and arguably the least contested, was the nomination of then-Secretary of State John Marshall as Chief Justice of the Supreme Court (hereafter, "Court"). The Federalists' second move took the form of two congressional acts: the Judiciary Act of 1801 and the Organic Act of the District of Columbia. On February 13, the Judiciary Act was passed by the Federalist majority, calling for the appointment of sixteen new federal judgeships and reducing the Court from six justices to five. Adams would have the next few weeks to fill judge positions and Jefferson was denied the ability to place a Republican on the Court to replace the ailing Justice William Cushing. On February 27, ten days after the House broke the electoral vote tie between Aaron Burr and Jefferson, the lame duck Congress passed the Organic Act and afforded the president an indeterminate number of justices of the peace for the District of Columbia. Adams nominated forty-two justices of the peace and all were confirmed. In the span of one month, the Federalist courts were thus fortified with fifty-nine more Federalist sympathizers. The duty to deliver the justice of the peace appointments fell upon Secretary of State Marshall. On March 4, at the stroke of midnight, Jefferson's acting Secretary of State, Levi Lincoln, required Marshall to stop, leaving commissions undelivered. As might be expected from hotly-contested political battles, the new secretary of state, James Madison, refused to deliver many of the remaining commissions.

The courts remained a site of ill will among Federalists and Republicans. In 1802, Republicans passed the Judiciary Act to repeal the Federalist-created Judiciary Act of 1801. Worried that the Federalist-dominated Court would overturn the repeal of the 1801 Judiciary Act, another bill was introduced in April of 1802 to abolish the June and December terms of the 1802 Court (see Nelson, 2000, p. 69). During that year, the rancor between the Republican elected officials and Federalist judges persisted. More particularly, Federalist Justice Samuel Chase was a target for Republicans, as Chase was notorious for "[leaving] the bench without quorum in order that he might make political speeches for his party," as well as for "his contempt for the popular will" (Adams, 1889/1986, p. 401). On February 3, 1803, when the Court was able to meet for the first time in a year, Jefferson initiated the impeachment proceedings against John Picketing, a Federalist judge in the U.S. district court in New Hampshire. Jefferson and his ilk employed their own political strategies to counter those of Federalist antagonists.

As partisan wrangling continued amongst the executive and legislative branches, a small number of scorned would-be public servants sought their positions as justices of the peace in the District of Columbia. Of those who were denied commissions, only William Marbury, Dennis Ramsay, Robert Hooe, and William Harper pursued the positions they believed were lawfully theirs. The appointees' lone option to receive the commissions was a writ of mandamus (a court order to a government agency) from the Court requiring Secretary of State Madison to complete the process and deliver the commissions. The men would have to wait for their day in court, however. Having filed for a writ of mandamus weeks before the passing of the Judiciary Act of 1802, Marbury's case would not be heard until the Court's February 1803 term. Adding to the intrigue, Federalist Chief Justice Marshall would hear the case of the Federalist appointees, despite Marshall's role as the agent responsible for the commissions going undelivered.

In 1803, Marshall's opinion in the case Marbury v. Madison faced these personal, legal, and political challenges in rendering the Court's decision. In that case, Marshall's per curiam opinion ("by the court") ruled that the Marbury, Ramsay, Hooe, and Harper had the right to the commissions, but that they did not have standing in the Court. Marshall reached beyond the judiciary acts immediately implicated in the case (i.e., those from 1801 and 1802) and instead argued that section 13 of the Judiciary Act of 1789, which gave the Court original jurisdiction for hearing pleas for writs of mandamus, unconstitutionally broadened the scope of cases heard by the Court. The Court's decision marked a significant and early instance of the judicial branch overturning an act of Congress and exercising the power of judicial review.

Upon glancing at the context of the case, Marshall's opinion seemed to do everything wrong, exercising authority over the legislative branch in a case in which his own self-interest was well known. Jefferson had trained his eye on Federalist judges and needed little cause to try to remove his political foes. The lack of the Court's authority within the tripartite system of the U.S. government confounds Marshall's decision in the case even more. During the decade following constitutional ratification, the Court heard only sixty cases total and made few decisions that challenged the authority of the legislative or executive branches (see Casto, 1995, pp. 175-78; pp. 214-15; and Frankel, 2003, pp.1-13). Thus, Marshall's rationale seemed counterintuitive given the facts of the case and how it traversed uncharted territory in an unstable, highly partisan environment. So, why did Marshall do it? Why did he invoke the notion of judicial review in this case?

In this essay, Marshall's invocation of judicial review is interpreted as the logical completion of his argumentative approach, rather than as a legal principle that needed expounding. Marshall's opinion enacted prudential argumentation in order to moderate the intense partisanship pervasive in the case's context. As an enactment of prudential argumentation, Marshall was able to proclaim that the Court lacked the power to act on the case without appearing powerless. Invoking judicial review was not, by itself, prudent. In fact, such an act could easily be construed as imprudent given the relative weakness of the Court's authority during the early-nineteenth century. Interpreting judicial review as the completion of Marshall prudential argumentation provides an alternative to other explanations that claim judicial review was the goal and that "Marshall had to stretch very far to reach the result that he did" (Kramer, 2004, p. 124; see also Adrian & Press, 1974, p. 172; Berman & Loeb, 1970, 326, Burns, Peltason & Cronin, 1978, p. 29; and Dewey, 1970, pp. 117-20). One such interpretation is offered by Kramer (2004), who claims, "Marshall's goal was, in effect, to get judicial review into the record--not to establish its existence, but to deflect an incipient movement to delegitimate it" (p. 124). Kramer's answer to the "why?" question focuses on Marshall's motives and recontextualizes Marbury in terms of the concept of judicial review. Yet, by reading the case for its relationship to the concept of judicial review, other elements of the context facing Marshall and the Court are sublimated. The "incipient movement" against judicial review was not the only issue surrounding the case. Broader political issues and Marshall's own investment made the case much more than a legal exercise. Yet, as will be demonstrated in the following pages, judicial review was the final component of the overall prudential argumentation strategy that allowed Marshall to respond to numerous contextual constraints.

The present essay proceeds by first, explicating the norms of constitutional interpretation and the possibilities that prudential argumentation provided. Second, Marshall's prudential argumentation is traced through his opinion in Marbury. Thirdly, Marshall's prudential argumentation is understood in relation to its own context, as well of in terms of how Marshall's approach has traveled through time.

THE NORMS OF CONSTITUTIONAL INTERPRETATION AND THE POSSIBILITIES OF PRUDENTIAL ARGUMENTATION

The convergence of law and politics was brought into stark relief by the election results of 1800 and the subsequent appointment of "midnight judges"...