Nevertheless the most significant aspect in the repeal of the Act of the 13th of February was the fact itself. The Republicans had not shown a more flagrant partisanism in effecting this repeal than had the Federalists in originally enacting the measure which was now at an end. Though the Federalists had sinned first, the fact nevertheless remained that in realizing their purpose the Republican majority had established a precedent which threatened to make of the lower Federal Judiciary the merest cat’s-paw of party convenience. The attitude of the Republican leaders was even more menacing, for it touched the security of the Supreme Court itself in the enjoyment of its highest prerogative and so imperiled the unity of the nation. Beyond any doubt the moment was now at hand when the Court must prove to its supporters that it was still worth defending and to all that the Constitution had an authorized final interpreter.
Marshall’s first constitutional case was that of Marbury vs. Madison. ¹ The facts of this famous litigation are simple. On March 2, 1801, William Marbury had been nominated by President Adams to the office of Justice of the Peace in the District of Columbia for five years; his nomination had been ratified by the Senate; his commission had been signed and sealed; but it had not yet been delivered when Jefferson took office. The new President ordered Madison, his Secretary of State, not to deliver the commission. Marbury then applied to the Supreme Court for a writ of mandamus to the Secretary of State under the supposed authorization of the thirteenth section of the Act of 1789, which empowered the Court to issue the writ “in cases warranted by the principles and usages of law to … persons holding office under the authority of the United States.” The Court at first took jurisdiction of the case and issued a rule to the Secretary of State ordering him to show cause, but it ultimately dismissed the suit for want of jurisdiction on the ground that the thirteenth section was unconstitutional.
¹ 1 Cranch, 137. The following account of the case is drawn largely upon my Doctrine of Judicial Review (Princeton, 1914).
Such are the lawyer’s facts of the case; it is the historian’s facts about it which are today the interesting and instructive ones. Marshall, reversing the usual order of procedure, left the question of jurisdiction till the very last, and so created for himself an opportunity to lecture the President on his duty to obey the law and to deliver the commission. Marshall based his homily on the questionable assumption that the President had not the power to remove Marbury from office, for if he had this power the nondelivery of the document was of course immaterial. Marshall’s position was equally questionable when he contended that the thirteenth section violated that clause of Article III of the Constitution which gives the Supreme Court original jurisdiction “in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be party.” These words, urged the Chief Justice, must be given an exclusive sense “or they have no operation at all.” This position is quite untenable, for even when given only their affirmative value these words still place the cases enumerated beyond the reach of Congress, and this may have been their only purpose. However, granting the Chief Justice his view of Article III, still we are not forced to challenge the validity of what Congress had done. For the view taken a little later by the Court was that it was not the intention of Congress by this language to confer any jurisdiction at all, but only to give the right to issue the writ where the jurisdiction already existed. What the Court should have done, allowing its view of Article III to have been correct, was to dismiss the case as not falling within the contemplation of section thirteen, and not on the ground of the unconstitutionality of that section.
Marshall’s opinion in Marbury vs. Madison was a political coup of the first magnitude, and by it he achieved half a dozen objects, some of the greatest importance. In the first place, while avoiding a direct collision with the executive power, he stigmatized his enemy Jefferson as a violator of the laws which as President he was sworn to support. Again, he evaded the perilous responsibility of passing upon the validity of the recent Repeal Act in quo warranto proceedings, such as were then being broached. ¹ For if the Supreme Court could not issue the writ of mandamus in suits begun in it by individuals, neither could it issue the writ of quo warranto in such suits. Yet again Marshall scored in exhibiting the Court in the edifying and reassuring light of declining, even from the hands of Congress, jurisdiction to which it was not entitled by the Constitution, an attitude of self-restraint which emphasized tremendously the Court’s claim to the function of judicial review, now first definitely registered in deliberate judicial decision.
¹ See Benton’s Abridgment of the Debates of Congress, vol. II, pp. 665-68. Marshall expressed the opinion in private that the repealing act was “operative in depriving the judges of all power derived from the act repealed” but not their office, “which is a mere capacity, without new appointment, to receive and exercise any new judicial power which the legislature may confer.” Quoted by W. S. Carpenter in American Political Science Review, vol. IX, p. 528.
At this point in Marshall’s handling of the case the consummate debater came to the assistance of the political strategist. Every one of his arguments in this opinion in support of judicial review will be found anticipated in the debate on the Repeal Act. What Marshall did was to gather these arguments together, winnow them of their trivialities, inconsistencies, and irrelevancies, and compress the residuum into a compact presentation of the case which marches to its conclusion with all the precision of a demonstration from Euclid.
The salient passages of this part of his opinion are the following:
[In the United States] the powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed in writing if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on which they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested: that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act.
[If, then,] an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
[However, there are those who maintain] that courts must close their eyes on the Constitution, and see only the law.… This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual.
[Moreover,] the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection. The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power, to say that in using it the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.
In some cases, then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the Constitution which serve to illustrate this subject.… “No person,” says the Constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? …
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments are bound by that instrument.
There is not a false step in Marshall’s argument. It is, for instance, not contended that the language of the Constitution establishes judicial review but only that it “confirms and strengthens the principle.” Granting the finality of judicial decisions and that they may not be validly disturbed by legislative enactment, the argument is logically conclusive, whatever practical difficulties it may ignore.