Marbury v. Madison: The Unconstitutional Power of Judicial Review


Towards the end of a recent article about the “sole organ” doctrine, I said this:

“The sad thing is, most people do not even know about this [the sole organ doctrine]. Even more tragic? The absolute power of the Supreme Court. Their power is perhaps even more frightening than that of the executive, and it is a power that they were never Constitutionally given in the first place.”

In other words, if you were alarmed by the power the executive now has as a result of the “sole organ” doctrine, then you really should know more about the branch of government that has the authority to grant such power to the executive. The branch that wields the power to determine the power of another branch is much more frightening and deadly than the branch who received the power.

This is why I feel compelled to lay out for you all the truth behind the Supreme Court’s power and what really happened in Marbury v. Madison (1803).


Why It’s Important

Have you noticed how social (or sometimes political) issues that seem to be causing national angst and strife in the U.S. citizenry seem to go quiet once the Court has had its say? It’s like the Court has the final say…on everything. And usually, after the Court has declared its verdict on some issue, that issue just slowly disappears from the front line of the political debate and silently becomes the accepted norm in society.

For instance, it seemed like gay marriage and its legality was all anyone could talk about in the years preceding the Ogerbefel v Hodges (2015) Supreme Court case—which declared state laws prohibiting homosexuals to marry unconstitutional and required all state governments to legally recognize the marriages of same-sex couples. Have you noticed how that topic has since seemed settled? In other words, even the debate about homosexuality, at least in the public eye, is finished. No one publicly argues whether or not federally accepted homosexual marriage should be challenged anymore. The Supreme Court had its say, the issue is settled, the new norm accepted and life goes on.

Look back at all other well debated issues that were eventually settled in the Supreme Court. Aside from abortion (a very unique and abnormal subject according to political science research—a subject I will address in time), what subject, now settled by the nine royals on the Supreme Court, is still hotly contested? You may be able to find a few rare examples here or there but on the whole, the answer is none.

Here’s what I want to emphasize. Supreme Court decisions are era defining. They are zeitgeist setting and they are value determining. Supreme Court decisions are the most important decisions made by any branch in the US government…ever. And I don’t know that I can truly emphasize the impact of their power to you enough.


Unfortunately, in this article, I can’t expound on all the specific game changing cases, but just realize, the decisions made by the Supreme Court over time are vast and they are game changing. Supreme Court rulings have impacted congressional power, the reach of the commerce clause, the relationship between states and the federal government, eminent domain, religion, education and schooling, healthcare, abortion, race relations, redistricting, the power of the executive and most notably their own power—vis-a-vis Marbury v. Madison. (Oh, and in case you were wondering, zeitgeist means “the defining spirit or mood of a particular period of history as shown by the ideas and beliefs of the time.”)

These era defining decisions should perhaps be more important to those of us on the right side of the political spectrum. Why? Because most of these era defining decisions tend to move the nation away from the classic/conservative understanding of the law to a more progressive understanding of the law. If you want to learn more about this I’d suggest looking into this fascinating book, Why Liberals Always Win the Culture War (Even When They Lose Elections). It’s intriguing and a bit depressing, but eye opening—-particularly if you are conservative, libertarian or even moderate/classically liberal.

Alright, so with all this as a backdrop, I’ll launch into the meat of this article, but I want you to know this first. Marbury v. Madison (1803) has always been a case whose outcome I frequently referenced and knew about. However, it wasn’t until recently that I fully grasped and understood the breadth of what happened during the case. I was riveted by the story and then bewildered by how what I knew happened, actually happened. So, I’m thrilled to share this story with all of you and as I’ve said in other posts, you NEED to know about this case—because the truth of it is perhaps even more important than anything I’ve shared thus far.

The Constitution and the Supreme Court


As I always do, I need to establish a foundation in the Constitution. What does the Constitution say about the Supreme Court? Article III of the Constitution is the shortest and most vague article because the courts were really not considered one of the most important or powerful branches. Their duties were limited and modest. Alexander Hamilton declared that the judicial branch was the “least dangerous” branch of government because it did not wield the sword of the executive or the purse strings of Congress. Nowhere in the Constitution is the Court (the Supreme Court is the only Court officially created by the Constitution. All other courts are created or eliminated by Congress) given the ability to declare Congressional laws or executive action or state law/action unconstitutional.

The Constitution says:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

OK, so here we understand that there will be one Supreme Court and that all other courts are created by Congress whenever Congress decides they are necessary to create.

The Constitution continues:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.


The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Aside from one other minuscule section about treason, this is it. This is what the Constitution says about the Supreme Court and about courts in general. Not a lot, right?

So, you can see from the language of the Constitution that the Supreme Court is given original jurisdiction over cases that include a state, ambassadors, public ministers and consuls. Original jurisdiction simply means that the case can originate in the Supreme Court—-it doesn’t have to start in a lower court and work its way up through the appeals process. According to the legal dictionary, it means “the authority of a court to hold a trial, as distinguished from appellate jurisdiction to hear appeals from trial judgments.”

Basically, the courts and the Court were created to settle disputes among people or states and to find and apply existing law. Right? They were never tasked with creating or making law, or interpreting law. In other words, cases were not meant to be decided or based upon discovering what the judge or justice believed but what the law required.

Because of the meager power afforded to the Supreme Court, justices, up until Andrew Jackson’s presidency, stayed on the bench an average of seven years (by the time Jackson was elected, the average had already increased to 20 years—thanks to Marbury v. Madison). Yes, you heard that right, seven years.

Why?

A Supreme Court appointment was not viewed as any overly significant or remarkable position and certainly not one to be held for the entirety of one’s life. Life-time appointments only became the norm once the Supreme Court’s power became so immense. (Compare this view of a Supreme Court appointment to how important it is now. Think about how many people will vote for a certain president because of who the president may or may not appoint to the Supreme Court—-because of how critical the Supreme Court and their decisions now are.)

I hope I’ve given you an adequate picture of just how unassuming and inconsequential the Supreme Court started out. It was not that the Court was unimportant, but its power was by no means a match for the other two branches—which was fine. It had its job of applying the law to specific cases and resolving disputes, and that’s about it.


Ah, how the times have changed. Don’t stop reading now, I’ve just served you the sides, now I’m going to give you the meat.

Writ of Mandamus

It all started with a writ of mandamus. A writ of mandamus is, in its simplest terms, an official order from a court ordering someone or some institution/lower court to do something.

Defined by the legal dictionary, it is “A writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal, corporation, Municipal Corporation, or individual to perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation.”

OK, so in 1789, Congress passed a law called the Judicial Act of 1789. In section 13 of this law, Congress said:

“The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”

The most important point you need to get from this is that the law gave the Supreme Court (some debate about this) the ability to issue a writ of mandamus. Remember what I just explained about original jurisdiction? The Constitution specifies that the Supreme Court only has original jurisdiction in cases “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party”. Good. Now, keep this law and these concepts in your mind as you read further.


Election of Thomas Jefferson

Alright, so in 1803, Thomas Jefferson defeated the incumbent president John Adams. John Adams was part of the Federalist party, the party more interested in a strong federal government and limited state power. He was defeated by his greatest opponent (and vice-president, since in those days the vice-president was simply the candidate with the second most votes) Thomas Jefferson. Jefferson represented the Democratic Republicans, those who advocated for greater states rights and a smaller federal government.

This is what happened. Here’s a step by step account of the events leading up to the Supreme Court Case, Marbury v. Madison.

  1. Adams wanted to give his party as much power as he could before leaving office. So, on his last day in office he appointed 42 new Justices of the Peace and 16 Circuit Judges, all of whom were Federalists.

  2. He signed all the commissions for these positions and his Secretary of State, John Marshall, sealed them.

  3. Marshall then had to hand deliver all these judicial commissions in one day to the individuals named to all these positions.

  4. He wasn’t able to deliver them all (naturally).

  5. The next day, the new president, Jefferson, ordered James Madison, the new Secretary of State, that he should not deliver the remaining commissions. Jefferson claimed that the commissions were void because they had not been delivered prior to his succession as president.

  6. William Marbury, an individual who had been appointed as a new Justice of the Peace, but one who had not received his commission, appealed to the Supreme Court. He asked the Court to issue a writ of mandamus (since this power was within the Court’s jurisdiction based on the Judiciary Act of 1789) compelling the new Secretary of State, Madison, to deliver the remaining commissions.

  7. Which leads us to Marbury v Madison (1803).


Marbury v Madison (1803)

So, before leaving office, John Adams stealthily appointed his then Secretary of State John Marshall to be the new Chief Justice of the Supreme Court.

(I’m going to pause here a second because I know some of you may be scratching your heads in confusion, thinking, how on earth could Adams appoint all of the judges and justices and get approval by the Senate so quickly? The answer to this is tied to what I was trying to emphasize earlier when I explained that justices stayed on the Court an average of seven years. Appointments to the Court or courts were not hotly contested or even really thought much about. Why? Because of the limited, nigh even trifling, significance of the Court and courts.)

So, Chief Justice John Marshall and the Court faced a very challenging dilemma. Side with Madison and the Court’s power would be diminished because the executive would be allowed to have the power to withhold the commissions, as Jefferson was doing.

However, if the Court chose to issue the writ of mandamus and order Madison to deliver the undelivered commissions, the Court’s legitimacy could be ruined forever. By this I mean, the Court had no means of compelling or forcing Madison to do as he was told. Madison could simply refuse to do as the Court said, and who could do anything about that? Especially since Madison had the power of the executive behind him. Marshall knew that if he were to issue the writ and Madison simply refused to obey it, the Court’s power and legitimacy in the eyes of the other branches and the American people would be severely and permanently damaged.

A fascinating thought, yes? I mention this reality in my post called Eleven Facts You Need to Know About the US Government. But, here’s the practical example of what the Supreme Court must acknowledge about its power. Since the Court was not made to be a law making institution, it was not given its own executive force—as Congress was. Meaning, Court orders, as in this writ of mandamus instance, have no actual enforcement power behind them (unless of course, the other branches of government are compelled—by us—to implement the order for the Court).


So, Marshall (who didn’t recuse himself from this case, despite his personal and partisan attachment to it) came up with an ingenious way around this constitutional dilemma. He declared that Marbury was, indeed, entitled to the commission—-but that the Supreme Court did not have the Constitutional power to issue a writ of mandamus—as the Judiciary Act of 1789 had previously allowed. Get that?

Marshall said that the Supreme Court’s power was Constitutionally less than what Congress had said it was—thereby, and for the first time ever, invalidating a Congressional law. The irony of course, is that by stating that Congress does not have the right to increase the power of the Supreme Court, the Supreme Court increased their own power exceedingly. How? Because by doing so, the Court took for themselves the power to invalidate a Congressional law.

With this decision, Marshall cleverly dodged the dilemma he faced and created judicial review. Judicial review is the power of the Courts to declare a law unconstitutional.

Is this not baffling? Such a simple incident with such era-changing ramifications.

Fall-Out

Some of you may be thinking, well, isn’t that good? Hasn’t the Court done well by limiting the other branches’ powers? In some ways, yes. There are some benefits to the creation of judicial review. However, I’m inclined to believe that the bad out-weighs the good in this case. Think of the sole-organ doctrine alone and the ability that the Court had and has to define the power of the executive as they saw fit. Not to mention how they’ve chosen to expand Congressional power far beyond the scope of the Constitution.

Think about it. It was the Court, not Congress, that decided that abortion should be legal. It was the Court, not Congress, that settled the controversial election in 2000. It was the Court, not Congress, that allowed for private homes or land to be seized by the federal government for roads or hotels to be built. It was the Court, not Congress, that decided that reading the Bible in public schools was illegal. It was the Court, not Congress, that redefined what Congress meant in their Civil Rights Act to mean that classes must be taught in Spanish to Spanish students in schools. The courts make law every time they re-interpret standing law or the Constitution.


Remember, who is supposed to make law? Congress, the only branch directly connected and accountable to us.

Who now makes law? Who now defines government power? Who now defines the direction the country is going? The courts, and more specifically the Supreme Court.

Why and how? Because they gave themselves—more like took for themselves—the power to do so in that simple little move of invalidating the Judicial Act of 1789—in Marbury v. Madison. And we bow to their whim. They command the most public respect and the highest approval rating of any branch, meaning that although they possess no enforcement agent for their laws, we expect their rulings to be followed and therefore will punish our representatives if they do not follow suit.

This power of judicial review is a dangerous one, even if it is one of the most accepted powers in America today. Don’t we all expect the Courts to do what they always do? Don’t we all believe that’s how it has always been and and how it always should be?

I’m here to tell you, with this article, that it is not how it always was nor how it should be.

The Court is the closest thing we now have to royalty in the US. Which is why, as Americans, we are all so apprehensive of who is appointed to the Court. Should the wrong ones be appointed, how could this country be changed? How could the powers of the other branches be expanded? These are pivotal questions for you to ask, but they are based on the fundamental and flawed assumption that the power of the Supreme Court is justified and a given.

The truth is, the Court/courts never had this power to begin with, and in reality, still possess very little power. Why? Because, as Marshall knew in that case long ago, their power in contingent upon our willingness to buy into their power, thereby forcing the other branches to acquiesce.

What if we all knew the fraudulent nature of their power? What if we all kept our congressional and executive representatives accountable and simply refused to follow along with a Supreme Court ruling that went beyond their scope of power? What could they do? Let’s be real. The Court is made up of nine older men and women. They can’t physically make us follow along with their rulings. And yet we do. Which is why it’s so important that you all know the truth about Marbury v. Madison. Read this again, digest it and then share it with others—the very liberty of our nation may depend upon it.

The Liberty Belle

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