What are the facts of Marbury v. Madison?

AuthorLevinson, Sanford
Position1

One of the most familiar features of the first year class in constitutional law, or indeed, in any first year subject, is the ritual practice of asking young law students to state the facts of cases. Not surprisingly, one of the first cases that students often encounter (4) in their study of constitutional law is Marbury v. Madison, (5) and so it is no surprise that Marbury presents one of the first opportunities for many law students to state the facts of a case. (6)

This is both deeply appropriate and deeply ironic. It is appropriate because Marbury is not just any case. It is a veritable symbol of judicial independence and of commitment to the Rule of Law, the hallmarks, most lawyers believe, of the United States Constitution. Moreover, allowing first-year students to work through the procedural history of the case and to parse Marshall's complicated reading of both the Judiciary Act of 1789 and Article III of the U.S. Constitution is a professional rite of passage that allows students to feel that they are mastering important legal concepts and difficult legal texts in the way that "real" lawyers do.

Yet asking students to recite the facts of Marbury at the beginning of their legal careers is also deeply ironic. It is ironic because there is more than one way to state what happened in Marbury, and thus what constitute its "facts." Depending on what one thinks the facts of Marbury are, the case is either, on the one hand, a symbol of judicial independence and the separation of law from politics, or, on the other, a revealing case study in the inevitable influence of politics on judicial decisionmaking that demonstrates the inability of courts fully to separate law from politics even as they repeatedly attempt to disguise this fact in their own judicial rhetoric.

The "traditional" recitation of the facts of Marbury looks something like this: John Adams appointed William Marbury to be a Justice of the Peace in the District of Columbia, and his commission had been signed by the relevant federal official (in this instance, of course, John Marshall himself, acting in his capacity as Secretary of State in the outgoing Adams Administration). Nevertheless, the new Secretary of State, James Madison, refused to deliver the signed commission to Mr. Marbury. Marbury had therefore filed suit before the Supreme Court invoking its original jurisdiction and asking for a writ of mandamus ordering that Madison convey to him what was rightfully his, the commission that would entitle him to take the office to which he had been appointed by the President of the United States.

This accounting of the facts of Marbury is fully adequate if one draws the facts from the official reports of the case itself. Alas, it tells us nothing about why Marbury was a significant case in its own time. Perhaps more to the point, it does not enable us to understand why the legal arguments that Marshall offers in the case are so strained and peculiar.

If a student in a law school class had articulated the facts set out above, we might ask her why Madison was withholding the commission, whether he was acting out of simple pettiness, personal dislike of William Marbury, or some other reason. If the student had majored in American history before entering law school, she might give a very different answer to the question of what the facts of Marbury are, an answer that might look something like this:

The case arose out of a dispute between two political parties in the United States, the Federalists, led primarily by Alexander Hamilton (though John Adams in fact succeeded to the presidency as the Federalist candidate following Washington), and the Republicans, led by Thomas Jefferson, Aaron Burr and James Madison. This dispute was particularly important in forming the conditions of democracy in the young republic. The Framers of the 1787 Constitution did not think there would or should be political parties. They identified political parties with factions, which were dangerous to the health of democratic institutions. They designed a Constitution that was supposed to work without the creation of such factions or, at worst, would prevent their growth and baleful influence. Nevertheless, within a few years of the ratification of the Constitution, political parties quickly appeared, and the contest between them quickly became quite bitter. Matters only got worse in 1796, when the Republican Thomas Jefferson became Vice President under the Federalist President, John Adams, because the electoral college awarded the Vice-Presidency to the person who came in second in the balloting for the presidency (assuming that the winner received the majority of the electoral vote). The Republicans finally won control of the Presidency in 1800, when Jefferson defeated Adams, although the election was contested because Jefferson and his running mate Aaron Burr got equal numbers of electoral votes, and the election was thrown into the House of Representatives.

The election of 1800 posed a real crisis for the fledgling democracy. It was by no means clear that the transfer of power from the old revolutionary party, the Federalists, to the upstart Republicans would work or could be achieved peacefully. The Federalists did not trust the new Republican party at all. Believing that the Republicans would be a disaster for the United States, they were willing to do almost anything to stave off a Jeffersonian takeover of the country.

Because of a quirk in the way that the Constitution structured the timetable for elections, the incoming Republican-controlled Congress would not take office until almost half a year after the elections, and most importantly, after the lame duck House of Representatives had chosen the new President. This odd feature of the constitutional system also reflected the naive notion that there would not be political parties, but rather simply one selection of "the best men" following another. Thus, the Federalists continued to control Congress through March 3rd, 1801, even though they had been repudiated in the polls. They were busy indeed; prior to breaking the Jefferson-Burr deadlock, they acted to stock the federal courts with as many of their allies as possible by passing, on February 13th, the Judiciary Act of 1801, establishing a host of new judicial offices to which Federalists could be appointed. (Historians sympathetic to the Jeffersonian cause usually label these appointees the "midnight judges.") The Federalist Secretary of State, John Marshall, was appointed Chief Justice, though he continued to act as Secretary of State up to the last minute before Jefferson's inauguration (and Madison's occupancy of the office). Thus Marshall himself signed William Marbury's commission as a Justice of the Peace in the District of Columbia.

Marbury's commission, however, was a mere sideshow to a much more crucial struggle. Far, far more important than the relatively trivial commissions for Justices of the Peace were the new federal appellate judges appointed by Adams under the authority of the Judiciary Act of 1801. The Act established a new set of courts (and judges) to complement the District and Supreme Court judges who had, prior to its passage, comprised the federal judiciary. The purported justification of the creation of circuit judges was to relieve the Supreme Court Justices of the onerous duty of riding circuit from place to place. But the Republicans felt that the real reason was to further entrench Federalist control over the judiciary.

The Republicans believed that the Midnight Judges Act was deeply unfair, not least because the Act had been passed--and the new judges it authorized were appointed and confirmed--during a lame duck session. All of this was done in open defiance of the fact that the Republicans had just succeeded in securing popular approval for their new political party and in repudiating the leadership of Adams and his Federalist associates. Acting under the orders of President Jefferson, newly installed Republican Secretary of State James Madison refused to deliver Marbury's commission to him. But the new circuit judges had already taken office. So the members of the Republican-controlled Congress employed a different strategy: They engaged in a wholesale purge of these new Federalist judges by repealing the Judiciary Act of 1801 in 1802, and, therefore, eliminating the judicial offices occupied by the circuit judges. The Repeal Act was passed on March 8, 1802; (7) seven weeks later, on April 29, Congress passed the Judiciary Act of 1802, (8) which, among other things, reassigned the Supreme Court Justices to their previous role as circuit judges.

The Jeffersonians recognized that the Federalist-controlled Supreme Court might strike back at their purge by declaring the repeal of the Judiciary Act unconstitutional. So the Judiciary Act of 1802 made a preemptive strike by eliminating the Supreme Court's 1802 Term and staving off the next session of the Court until February of 1803. That is why Marbury v. Madison was decided in 1803 rather than 1802. The clear import of this shot across the bow was that if the Federalist Justices made decisions that the Republican Congress did not like, the Justices might be removed as well, perhaps through impeachment. Indeed, the Republicans did impeach the Federalist Justice Samuel Chase. Chase was later acquitted, but not before the Marbury case was heard and decided in 1803. At the point that Marshall and his colleagues heard the case, the threat against them was real and palpable.

In fact, a challenge to the repeal of the Judiciary Act was brewing in the federal courts at the very same time as Marbury. That case, Stuart v. Laird, (9) challenged the constitutionality of the Jeffersonian purge by challenging Congress's ability to require Supreme Court Justices to resume their duties as circuit judges. (10)

The petitioners in Stuart argued that the Justices of the Supreme Court held...

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