Emergence of the Judiciary: The case of Marbury v. Madison Essay

Emergence of the Judiciary: The case of Marbury v. Madison

            In 1801 the case of Marbury v. Madison may have seemed to be relatively limited in it’s potential impact. The issue of whether or not a judge should be allowed to take the bench was inconsequential to most Americans. Daily life and the growing pains of a young nation were of far greater concern. In time, however, Marbury v. Madison would come to have a profound effect on the lives Americans lead today.

            The rule of law is a fundamental concept in American democratic theory. The success of the democracy is completely reliant on adherence to that law. On it’s face, this is a simple concept. In practice it is not so simple.

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            What happens when a law conflicts with the Constitution or with individual rights? How much power do the President, Congress and the judicial system have, respectively, in defining law? When and how can laws be changed? In a theoretical sense, these questions were addressed by the Constitution. The Supreme Court has a critically important function in making the bridge between theory and practice. We are used to such issues being dealt with frequently today. We benefit from having established precedent to fall back on.

            In 1801 this was not yet the case. Marbury v. Madison was vitally important to the growth of the American nation because it provided a building block for future law in the most critical areas of the U.S. Constitution. Had the case not been decided wisely, a ripple effect would have fundamentally changed the culture and rights we take for granted today. Important social change has been accomplished by using the power of the judicial system firmly established in Marbury.

            The Constitution and The Declaration of Independence are eloquent statements of the rights of the individual. At the time Marbury took place, however, Americans were still enslaved. Discrimination and other governmental abuses were rampant. Government abuses gave legitimacy to social abuses. Marbury did not cure any of these ills. It did serve as a humble start to a very long process in which individual rights were protected. Technically speaking, this was a case about the plight of a single judge. In reality, it was about much, much more. As a result of its long-term, continuing impact on government, culture and individual lives Marbury v. Madison ranks as the most important case in American jurisprudence.

Background

            The Marbury v. Madison case as the result of a Federalist against Anti-Federalist political battle. This often heated philosophical conflict had gone on since Colonial times. Federalists believed that the only way to survive as a nation was to have a centralized government with strong powers. Anti-Federalists felt the exact opposite way. The Revolution itself had been fought to shake off just such a government. Individual rights were paramount both in the moral sense and for the ultimate survival of the nation. Anti-Federalists doubted that a strong centralized government could exist without becoming corrupt and tyrannical.

            John Adams, the outgoing President, was a Federalist. The incoming President, Thomas Jefferson, was an Anti-Federalist. This would be the first time in the nation’s history that power would shift from one political party to the other.

            In his lame duck term Adams still benefitted from a Federalist-controlled Congress. Together they rewrote provisions of the 1789 Judicial Act and enacted them into law. This allowed Adams to appoint a large number of like-minded judges before leaving office. All of the judges except one were quickly confirmed and commissioned.

            During this process William Marbury was also confirmed. His application for a seal of commission, a final step, was not forwarded to the administration until the new President had taken office. To Adams, the seal was a mere formality that Jefferson’s administration was required to issue. Jefferson disagreed and declined to issue the commission. When Marbury sued the administration a constitutional crisis was underway.

            Over time, the ruling in this case would come to have a major impact on American society. It is often the first case discussed in law school. The decision and its impacts are frequently discussed in great detail and argued passionately even to this day. As scholar and author David Brannen wrote:  “The ruling is considered by many the most important decision in American legal history.” 1

The Decision

            In the decision, Chief Justice John Marshall goes to considerable effort to carve out the effective jurisdiction of the Supreme Court. He begins building his case for the court to have an expanded concept of jurisdiction even before the specific merits of the case were evaluated. He writes of the political conflicts, in general, commenting that “The court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.” 2

            Article III of  The Constitution of the United States reads. “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States

1. Daniel E. Brannen. Supreme Court Drama: cases that changed America (Vol 4). New York: UXL, 2001; p. 867.

2. Henry Steele Commager & Milton Cantor. Documents of American History Volume 1 to 1898

                (10th ed.). Englewood Cliffs, NJ: Prentice-Hall, 1988; p. 194.

 and treaties made…”. 3 This is a strong but relatively vague statement. Marshall and the court felt that it was their role to give a more detailed description of judicial powers in the context of their actual usage. This was not an entirely new concept.

            In Federalist No. 22 Alexander Hamilton wrote “Laws are a dead letter without courts to expound and define their true meaning and operation.” . 4  Arguably, the court went above and beyond the call of duty by staking out a broad interpretation of judicial power in the context of this case. The case did provide an opportunity, nonetheless, for the Supreme Court to do something it felt was inevitably necessary.

            The larger impacts of the case would be decided in the course of time. The court was still charged with unwinding a prickly political situation. In terms of the technical elements of the case, the court had three questions to consider:

<          Did Marbury have a right to the commission?

<          If he did have a right, did the law provide him a remedy?

<          Was Marbury’s remedy a writ of mandamus from the Supreme Court?

                                                                                              5

            Ultimately the court declared the Judiciary Act by which Adams was able to appoint Marbury and other judges unconstitutional. At the same time it rebuked the Jefferson administration for not complying with a law that was, at the time, legitimate. As for Marbury, he was denied a writ of mandamus from the court and never did assume a post as a federal district

3. Bryan A. Garner. Black’s Law Dictionary (8th ed). St. Paul, MN: West Group. 1999; p. 1773.

4. Charles Zelden (ed.). About Federal Government: The Judicial Branch of Federal Government. Santa Barbara, CA: ABC-CLIO, 2007; p. 123

5. Charles Zelden (ed.). About Federal Government: The Judicial Branch of Federal Government. Santa Barbara, CA: ABC-CLIO, 2007; p. 131.

judge.

            The most impactful and controversial news to emerge from the case was the court’s assertion of judicial review that was used to declare the Judicial Act unconstitutional. Marshall’s statement on this element is unequivocal: He wrote that “such power included the authority to strike down laws repugnant to the Constitution”. 6 As if that statement was not definitive enough, Marshall also wrote that: “It is emphatically the province of the Judicial Department to say what law is”. 7

            Many critics of the decision believe that it unnecessarily hamstrings the creation of public policy. This, in itself, could be considered unconstitutional. The court, in theory, is supposed to be free of political considerations.

            In reality this is nearly impossible. Zelden writes that “The very process of expounding and defining…has led the Federal courts into political policymaking.”. 8 In other words, it is inevitable that the court will become involved in certain aspects of policymaking. Other safeguards are included within the Constitution to prevent justices from becoming purely political animals.

            The Marbury v. Madison decision would go on to be used “in support of sweeping declarations of judicial superiority that contrast with the more modest Marbury of John Marshall’s court”. 9 Supporters and critics alike agree on this point. Whether the

6. Paul Finkelman & Melvin I. Urofsky. Landmark Decisions of the United States Supreme

                Court. Washington, D.C.: CQ Press, 2003; p. 10.

7. Paul Finkelman & Melvin I. Urofsky. Landmark Decisions of the United States Supreme

                Court. Washington, D.C.: CQ Press, 2003; p. 10.

8. Charles Zelden (ed.). About Federal Government: The Judicial Branch of Federal

                Government. Santa Barbara, CA: ABC-CLIO, 2007; p. 123.

9. Kermit L. Hall (ed.). The Oxford Companion to American Law. New York: Oxford University Press, 2002; p. 539.

effects of those decisions are positive or negative can be argued. What cannot be argued is the vast impact this decision would have in the centuries that followed.

The Impact

            The judicial powers secured by the court in Marbury would pave the way for other ground breaking decisions. In many cases these decisions had profound social impact. The Civil Rights movement, for example, was able to capitalize on the power of judicial review first enshrined by the Marbury decision. That era would change the nature of American life for many.

            In the 1950s state and local governments were still using the law in an overt attempt to discriminate against certain groups of people. One important case submitted for judicial review came to the Supreme Court in the mid-1950s. Brown v. Board of Education (1954) established that “segregation in public schools is unconstitutional”. 10 Until that time, segregation was fully enforced by the power of the local government.

            This is a prime example of how a judicial decision can have unforseen effects decades down the line. When evaluating the case of an aggrieved judge in 1801 the court could not have known how their decision would be used one hundred and fifty years later to protect the rights of African-American school children. In terms of the technical elements the cases are not alike at all. In the broader sense, though, the court’s statement of power over law would eventually provide an avenue for many seeking relief government-sponsored oppression. The principle would be used in other cases.

            In the 1950s, the State of Alabama used various legal means to control the Civil Rights

10. Daniel E. Brannen. Supreme Court Drama: cases that changed America (Vol 1). New York:

                UXL, 2001; p. 12.

movement. The National Association for the Advancement of Colored People (NAACP) was a prime target. Among other efforts, the state tried to force the NAACP to reveal its list of members. Those members, the NAACP feared, would then be subject to even more intense state harassment.

            In the case of NAACP v. Alabama (1958), the decision stated that “privacy was an important part of the freedom of association”. 11 It was another case that show important the principle of judicial review stated in Marbury is in protecting the fundamental civil rights laid down in the Constitution.

            There were critics of the Marbury decision. Some complained that the settlement itself was just a clear attempt to offend no one. In that sense the critics may be correct. The court appeared to be attempting to toe a fine political line by not entirely rejecting the claim of either side.

            At the same time, the bold statements of judicial authority would have effects we still feel today. Some feel that these statements went too far in limiting the law making authority of Congress.

            In 1801, these were uncharted waters. Even the justices themselves had doubts about the future potential of the new democratic nation. Those doubts extended to the Chief Justice as well.

Chief Justice John Marshall feared the direction the American democratic experiment was moving toward. He did live to see the fruits of his labor. Marshall “died fearing that body [Supreme Court] and the Constitution were gone”. 12 The true impact of Marbury v. Madison would

11. Daniel E. Brannen. Supreme Court Drama: cases that changed America (Vol 1). New York: UXL, 2001; p. 11.

12. Kermit L. Hall (ed.). The Oxford Companion to American Law. New York: Oxford

University Press, 2002; p. 526.

not be felt for years.

            In the end, the Marbury decision, among others, helped secure Marshall’s place as one of the most important figures in the early period of The United States. In the minds of the general public, he is not on the level of George Washington, Thomas Jefferson or Alexander Hamilton. In the legal community, however, his impact is fully realized. According to author Kermit L. Hall, “He [Marshall] would become the symbol of our living Constitution”. 13 Today we have the expectation that courts will reject laws with constitutional questionability. Therefore, laws and policies are crafted with that reality in mind. In 1801 that issue was not nearly as settled.

Conclusion

            The decision in Marbury v. Madison might be viewed as the judicial equivalent of the Declaration of Independence. Regardless of the backlash, the court took an opinion that surely ruffled many feathers. Until that time, the Court was not usually thought of as being a co-equal branch of the American government.

            Specifically, the provision of judicial review stated so strongly by the court has become a symbol of American democracy. That symbol has had a power that extended around the world. The judicial role outlined in Marbury has become a model for emerging democracies around the world. That influence has been apparent in two distinct phases. The reorganization of Europe after the Second World War required a strong model of a judiciary that could resist tyranny. Many European and Asian nations used Marbury as a tangible source of inspiration for the development

13. Kermit L. Hall (ed.). The Oxford Companion to American Law. New York: Oxford

                University Press, 2002; p. 526.

of their own democracies. A second somewhat similar phase began in the late 1980s after the fall of the Soviet Union left a power vacuum in Europe.

            Was Marbury the greatest decision in the history of the United States Supreme Court? Most legal scholars would argue, on technical grounds, that it was not. Was it the most significant decision in the history of the court? A strong case can be made that it was.

Marbury was decided at a time when there was much less faith in the security of our democratic experiment. There also was not a great deal of relevant judicial precedent to rely upon. The justices probably knew that they were planting the seeds of a tree that would grow many branches. They could not have known, however, just how high the tree would grow and how far the branches would reach. In terms of specific near-term impacts there have been more important cases. In terms of the long-term impact on many phases of American life the case is unrivaled.

Notes

1. Daniel E. Brannen. Supreme Court Drama: cases that changed America (Vol 4). New York: UXL, 2001; p. 867.

2. Henry Steele Commager & Milton Cantor. Documents of American History Volume 1 to 1898

            (10th ed.). Englewood Cliffs, NJ: Prentice-Hall, 1988; p. 194.

3. Bryan A. Garner. Black’s Law Dictionary (8th ed). St. Paul, MN: West Group. 1999; p. 1773.

4. Charles Zelden (ed.). About Federal Government: The Judicial Branch of Federal Government. Santa Barbara, CA: ABC-CLIO, 2007; p. 123

5. Charles Zelden (ed.). About Federal Government: The Judicial Branch of Federal Government. Santa Barbara, CA: ABC-CLIO, 2007; p. 131.

6. Paul Finkelman & Melvin I. Urofsky. Landmark Decisions of the United States Supreme

            Court. Washington, D.C.: CQ Press, 2003; p. 10.

7. Paul Finkelman & Melvin I. Urofsky. Landmark Decisions of the United States Supreme

            Court. Washington, D.C.: CQ Press, 2003; p. 10.

8. Charles Zelden (ed.). About Federal Government: The Judicial Branch of Federal

            Government. Santa Barbara, CA: ABC-CLIO, 2007; p. 123.

9. Kermit L. Hall (ed.). The Oxford Companion to American Law. New York: Oxford University Press, 2002; p. 539.

10. Daniel E. Brannen. Supreme Court Drama: cases that changed America (Vol 1). New York:

            UXL, 2001; p. 12.

11. Daniel E. Brannen. Supreme Court Drama: cases that changed America (Vol 1). New York:

            UXL, 2001; p. 11.

12. Kermit L. Hall (ed.). The Oxford Companion to American Law. New York: Oxford

            University Press, 2002; p. 526.

13. Kermit L. Hall (ed.). The Oxford Companion to American Law. New York: Oxford

            University Press, 2002; p. 526.

Resources

Brannen, Daniel E. Supreme Court Drama: cases that changed America (Vol 1). New York:

            UXL, 2001.

Brannen, Daniel E. Supreme Court Drama: cases that changed America (Vol 4). New York:

            UXL, 2001.

Chemerinsky, Erwin. Constitutional Law: principles and policies (3rd ed.). New York: Aspen

            Publishers, 2006.

Commager, Henry Steele & Cantor, Milton. Documents of American History Volume 1 to 1898

            (10th ed.). Englewood Cliffs, NJ: Prentice-Hall, 1988.

Finkelman, Paul & Urofsky, Melvin I. Landmark Decisions of the United States Supreme Court.

            Washington, D.C.: CQ Press, 2003.

Garner, Bryan A. Black’s Law Dictionary (8th ed). St. Paul, MN: West Group. 1999.

Hall, Kermit L. (ed.). The Oxford Companion to American Law. New York: Oxford University

                                    Press, 2002.

Hall, Kermit L. (ed.). The Oxford Companion to the Supreme Court. New York: Oxford

                                                            University Press, 1992.

Stone, Geoffrey R. Constitutional Law (5th ed). New York: Aspen Publishers, 2005.

Sullivan, Kathleen R. & Gunther, Gerald. Constitutional Law. New York: Foundation Press,

            2007.

Zelden, Charles (ed.). About Federal Government: The Judicial Branch of Federal Government.

            Santa Barbara, CA: ABC-CLIO, 2007.

 

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