February 24, 1803 – The Supreme Court Decided Marbury v. Madison

No incoming president has ever been too pleased with the frenetic lame duck activities of the previous outgoing administration, and Republican President-Elect Jefferson in 1800 was no exception.

On President John Adams’s last day of office, he sat at his desk until 9 p.m. signing commissions for what would become known as “midnight judges.” As the Federalist Adams churned out the appointments, they were rushed over to the office of Secretary of State John Marshall (who had been appointed to the Supreme Court but was still serving as the SOS), and Marshall affixed the Great Seal of the U.S. on the documents.

Somehow in the rush, four commissions never got processed, among them that of William Marbury. Marshall didn’t consider this a barrier to the legitimacy of the appointments, but Jefferson’s attorney general, Levi Lincoln, who was also Acting Secretary of State (soon replaced by James Madison), decided the commissions could be withheld. Moreover, Jefferson also purged the appointments of some others who had been selected as midnight judges.

President John Adams

President John Adams

Marbury and the other potential judges whose commissions had not been delivered brought an action for a writ of mandamus in the U.S. Supreme Court pursuant to the Judiciary Act of 1789. Charles Lee, a close friend of Marshall, represented the plaintiffs. The new Jefferson administration saw the suit as a political attack rather than strictly a legal matter, and pulled out all stops to prevent the midnight judges from taking office.

A number of interesting legal issues were presented, not the least of which was whether or not Marshall should have recused himself from the case. Marshall did not.

A writ of mandamus is a court order that requires an official to perform or refrain from performing a certain duty. In this case, the writ would have ordered the current Secretary of State, James Madison, to deliver the commissions. Marbury argued that the Judiciary Act of 1789 gave the Supreme Court of the United States original jurisdiction to issue such a writ.

Marshall neatly sidestepped the awkward political issues presented in the opinion of Marbury v. Madison (5 U.S. 137). Despite being a Federalist, he did not find in favor of Marbury. While indicating in dictum that Marbury’s case was just, he ruled that the Supreme Court did not in fact have original jurisdiction of the case according to his reading of the Constitution. Moreover, he found that the Judiciary Act of 1789, which purported to grant the Supreme Court original jurisdiction to issue writs of mandamus, was unconstitutional to the extent it attempted to expand the original jurisdiction of the Supreme Court beyond what was expressly granted in the Constitution.

Chief Justice John Marshall

Chief Justice John Marshall

The significance of the case arises more from Marshall’s reasoning than from his holding:

The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall be pleased to alter it.”

He ruled that the legislature could not pass a statute inconsistent with the Constitution. He then insisted that the federal judiciary was the appropriate institution to interpret the Constitution, and that its interpretation would take precedence over any interpretation by the legislature or the executive. (In fact, in the Federalist Number 78 dealing with the role of the courts, Alexander Hamilton had written, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”)

James Simon, in the book, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States, explains that this decision had enormous consequences for the future of our nation. He writes:

…although Marshall had satisfied the Republicans’ short-term interests by rejecting Marbury’s claim, he had purchased an enormous piece of constitutional real estate for the Court. Marbury v. Madison established the Court’s authority to declare an act of Congress unconstitutional, a power that would prove to be of historic significance in securing the institution’s parity with Congress. Marshall’s opinion also served notice that the Court, not the president, would be the ultimate judge of claims of executive privilege, an authority of seismic proportions.”


To read about this and other points of conflict between Jefferson and Marshall that were so momentous in structuring the future development of the United States, Simon’s book is highly recommended.


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