I finished my audio course on Roman history (review to come) and am now doing a course on major Supreme Court decisions. The first case the course considers is Marbury v. Madison, the 1803 decision in which the Court first exercised its power of judicial review (i.e., its ability to declare a law unconstitutional). This power is not enumerated in the Court’s powers in the Constitution, nor is it granted to the Court by statute, and so every commentary on the case focuses on its historic significance as carving out new power for the Court.
I’m not interested in that.
Actually, I am, but not at the moment. There is an argument to be made that the power of judicial review is implied in the Constitution, but what interests me presently is whether Marbury v. Madison was rightly decided. I’m thinking that it was not, but I’m not a legal scholar, and so perhaps someone reading this blog who is a legal scholar can tell me whether my reasoning is sound.
Here’s the basic issue: This guy named Marbury had been appointed justice of the peace by the president. I know, you’re saying “Big whoop. A justice of the peace. So what?” but back then being a justice of the peace was a Big Deal. The problem is, his commission document was never delivered to him, so he petitioned the Supreme Court to issue an order to the Secretary of State (James Madison) to fork over the commission. Problem was, Madison was part of a new administration that didn’t want to do that, and so he wouldn’t.
Marbury’s lawyer went to the Supreme Court and said, “Look, your honors, in the Judiciary Act of 1789, Congress gave y’all the power to issue orders of that kind if someone approaches you directly (rather than working his way up through the lower courts), so please issue one in this case.”
In Marbury v. Madison, Chief Justice John Marshall, writing for the Court, said–in effect–“You’re right that the law in question says we have the power to issue such orders if someone approaches us directly, but the problem is that this law is unconstitutional. Congress can’t give us that power because it is prohibited by Article III of the Constitution, which says:
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.
“This means,” Madison in effect continued, “that we the Court have original jurisdiction (i.e., people get to approach us directly) only in a limited number of cases and in all other cases we have only appellate jurisdiction (i.e., people will have to work their way up through the courts). When Congress said we could issue the kind of order you’re after, they were adding an item to our original jurisdiction which the Constitution says should belong to our appellate jursidiction. Therefore, what they said was wrong. The law is unconstitutional. Too bad. So sad. You’re out of luck.”
This seems like a blazingly bad argument to me because there is a big honking EXCEPTION written into the Constitution itself. What the relevant provision says is: “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction . . . with such exceptions . . . as the Congress shall make.”
It seems to me that in writing the Judiciary Act of 1789 the Congress was making one of the exceptions that the Constitution said it had the power to make by adding a new item to the list of things that belonged to the Court’s original jurisdiction.
I’ve done a little searching around on the web and found some practical arguments why this is a bad idea (e.g., the Court would be overwhelmed with people petitioning it to issue such orders to government officials), but this is not an argument addressing what the law says.
Could any legal scholars out there point me to a discussion of the exceptions clause in Article III and why it would or would not affect the Court’s ruling in Marbury v. Madison? I can think of ways to argue this issue back and forth, but I’d like to read some professionals kicking the issue around.
I’m probably not the sort of legal scholar you are looking for. My degree is in English law and my formal knowledge of US Constitutional Law is limited but, for what it’s worth, I agree with you.
Marbury v Madison is usually cited as authority for the proposition that the Supreme Court has the power of judicial review. It is certainly good authority for that purpose. Its reasoning seems to be correct on the major issues: the petitioner had a right to the commission, the right must be enforceable, the proper remedy was a writ of mandamus (or a ‘mandatory order’ as lawyers in England are now being required to call it) and a law which was incompatible with the Constitution could not stand.
But the Court’s finding that the Act is not compatible with the Constitution seems shaky. Indeed when Chief Justice Marshall quotes article III of the Constitution he omits the (arguably crucial) phrase “with such exceptions, and under such regulations as the Congress shall make.” From the online texts, he doesn’t even appear to indicate the omission with an ellipsis.
It is an interesting point and I’m sure that there must be discussion of this point in various learned journals. Perhaps an American lawyer will enlighten us further.
BTW, I presume that you are working your way through the new ‘Portable Professor’ series. I am just starting out with Peter Kreeft’s ‘History of Moral Thought’ and am very impressed so far. I can’t wait to hear your thoughts on the rest of the series.
IANAL (I am not a lawyer) but I can recommend checking out the Mirror of Justice website, a Catholic legal blog.
http://www.mirrorofjustice.com
If you cannot find an appropriate article, then try contacting one of the listed law professors.
Hope this helps
Kurt,
Justice Marshall did, in fact make reference to the “with such exception” clause.
The crux of the argument is statutory (in this case Constitutional) interpretation.
Art. III, Sec. 2, Sentence 1 of the Constitution states that the Judicial Power of the Federal Court system (vested in one Supreme Court and so many inferior Courts as the Congress shall designate) extends to cases involving areas of law A, B, C, D and E.
Art. III, Sec. 2, Sentence 2 then states that the Supreme Court’s jurisdiction over areas A, C and E is original.
Art. III, Sec 2, Sentence 3, clause 1 states that in ALL OTHER CASES MENTIONED ABOVE, it is appellate.
Then follows the clause in question, “with such exceptions, and under such regulations as the Congress shall make.”
Chief Justice Marshall speaking for the Court, simply held that if Sentence 3, clause 2 could be read to authorize Congress to decide over which areas the Supreme Court has original jurisdiction and which it had appellate jurisdiction, then the preceding clause of the third sentence, and the entire second sentence of Sec. 2 were unnecessary, excess verbiage.
His exact quote is:
“If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them, or they have no operation at all. . . . It cannot be presumed, that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it. . . . That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction.”
Jimmy:
Your question goes to whether the Marshall Court got it right in interpreting Article III, Section 2 to exhaustively and exclusively define the scope of the Supreme Court’s original jurisdiction, or whether the “with such exception” clause can be read as a vehicle for Congress to expand that jurisdiction.
In Constitutional terms, this is somewhat like asking whether the Magisterium got it wrong about artificial contraception or assisted reproductive technology. Many people argue that certain reproductive techniques (to either foster or inhibit conception) are consistent with the “Word of God”. Nevertheless, we believe the Magisterium to be vested with the authority to definitively interpret that Word.
Similarly, it doesn’t make much sense to ask whether the Supreme Court got its interpretation of Article III right. We believe that it has the authority to interpret the Constitution and so, if it says Art. III, Sec. 2 does not authorize Congress to expand its original jurisdiction, then that’s what Art. III, Sec. 2 says.
As a more recent Justice stated about the Court, (and I’m paraphrasing):”We don’t have the final word because we’re always right, we’re always right because we have the final word.”
Thanks for the feedback, guys!
Esquire, it doesn’t strike me that Marshall’s argument is a good one. It seems that what he is doing by taking this tack is falling into precisely what he says he wants to avoid doing–i.e., making a clause of the Constitution of no effect. By denying that Congress has the power to make exceptions to what the Court has appellate jurisdiction over he is making the exceptions clause of no effect.
Also, I’m sensitive to the Court’s magisterium-like function in interpreting the law, and if I were a paid legal professional who had to counsel clients about how the law would be applied to their situations then I would need to internalize the kind of deference to the Court’s judgment that you describe.
However, since by the Court’s own admission it is not infallible and since lawyers can and do (sometimes) argue successfully that the Court should overturn one of its precedents then it seems that the question of whether a case was rightly decided can be one worth considering.
Also, since I’m not a paid legal professional but a dilettante in the law–a philosopher by training and an exegete by trade–the question that interests me is whether the Court rightly decided the question and what I would do if I were in their position: In other words, digging into the rationale behind how the law should be read rather than how it is read.
I’m also aware of Justice Brennan’s famous quote about the Constitution meaning what five of the nine justices say it means, but depending on how it is construed, this strikes me as the kind of attitude of naked judicial power that one would expect from one of the pillars of the Warren Court and as one of the attitudes that I would most resist were I a justice.
I would regard it as my duty to interpret the law as it was intended by the ratifiers to be interpreted, not as I wanted it to be.
But then, that’s just me.
Esquire,
On a more careful reading I see that Marshall does indeed allude to the ‘missing’ clause (although he doesn’t quote it directly, or even indicate that he has omitted some words, when he quotes the rest of article III, sec. 2). Thanks.
I do follow Marshall’s reasoning but I’m still not at all sure that I accept his construction of the Constitution. As I mentioned, my knowledge of the American system is limited but (having read it in full for the first time yesterday) a number of curious aspects of this case strike me.
For instance, a court in the UK would usually consider the question of jurisdiction before making any findings on the substantive merits of the claim (because if the court does not have jurisdiction, all other questions are moot). It seems very strange to consider what the appropriate remedy is if the court has no jurisdiction to award one.
The argument against Marbury vs. Madison, as it is being put forth in this thread, rests on reading the exceptions clause to mean that Congress can declare that the Court can have original jurisdiction in cases other than those enumerated in the Constitution; and, in fact, Mr. Akin in his last comment appears to be saying that this is the only way in which it can be read: “By denying that Congress has the power to make exceptions to what the Court has appellate jurisdiction over [Justice Marshall] is making the exceptions clause of no effect.” Now, the passage in question, again, is “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.” Can Congress make any other exception to the Court’s appellate jurisdiction? I’m no lawyer or legal scholar; but I have heard the argument advanced a number of times, usually in connection with pro-life legislation, that the exceptions clause empowers Congress to declare certain cases outside the appellate jurisdiction of the Court altogether. If so (or if there is yet a third way to read the exceptions clause), then Justice Marshall was not voiding the clause; he was simply declaring that the “exception” contained in the Judiciary Act was not a valid exception.
Jimmy:
I came across this analysis on the ocassion of the 200th anniversary of the Marbury decision.
http://64.233.167.104/search?q=cache:Ft7gv_gG-AYJ:writ.findlaw.com/commentary/20030224_grossman.html+%22marbury+v.+madison%22+%2B+%22article+3%22+%2B+exception+%2B+commentary&hl=en
(Sorry I’m not sure how to post a link here. I googled “”marbury v. madison” + “article 3″ + exception + commentary” and it was the first hit, but you need to pull up the cache’d version).
One of the things that fascinated me originally in law school was delving into the real life “story” behind the cases in the case books, and understanding how and why a case got where it did, and why it was decided how it was when arguably equally reasonable interpretations would have brought about the opposite result.
One of the most interesting aspects of this case is that the previous Secretary of State, who failed to deliver Marbury’s commission on time, was John Marshall himself. And the case itself played out amidst the epic battle between Jeffersonian republicans and the Federalists.
A finding for Marbury would have appeared to be an attempt to Marshall to rectify his own failure as Sec. of State, and would have provoked a showdown with Jefferson that could have destroyed the tripartite system of government set forth in the Constitution. Much like a subsequent president (I forget who; brain fog) said of another Chief Justice “he’s got his order, now let him come enforce it”.
As the decision stands, Marshall gave Jefferson his “win” by not ordering him to deliver the commission to Marbury, but in the process claimed for the Court the power to acts of Congress.
BTW, the much more contentious decision was the Court’s finding that it could invalidate a STATE law as violative of the Constitution. The fact that the federal system could trump the states was, at that time, no settled matter.
a subsequent president (I forget who; brain fog) said of another Chief Justice “he’s got his order, now let him come enforce it”.
I think it was Andrew Jackson.
The two competing interpretations are each reasonable, and someone has to decide between the two. This comes up a lot in contract cases where the wording is ambiguous. Rules of interpretation generally require the court to construe the contract against the position of the one who drafted it (assuming such construction is a reasonable one). How that plays out above, I don’t know. Seems to me that “jurisdiction” clause grants the Court two types of jurisdiction. Original jurisdiction over ceratin matters in the first sentence; appellate jursidiction over certain matters in the second. The “exclusion” language is in the same sentence delineating the Court’s appellate jurisdiction, not original jurisdiction. Thus it would seem reasonable that the “exceptions” to jurisdiction which Congress can fiddle with are appellate jurisdiction. And it also seems reasonable that, since the Con already grants the “universe”, if you will, of the Court’s appellate jurisdiction, “exceptions” to this universe of appellate jurisdiction are limitations, not expansions of appellate jurisdiction. Of course, this is not the only reasonable interpretation of the clause, but it is a reasonable one. And, given the proximity in time of the decision to the actual founding and drafting of the Constitution, it would be nearly impossible to overturn such a decision (1) b/c much of the debate and intention regarding this article was most likely not recorded for review now, so you would reasonably assume the court had a better grasp of it back then, and (2) it has become such a bedrock of the legal landscape in the ensuing 200 years that overturning such a fundamental way of operating the federal scheme is unthinkable short of revolution (which, now and then, may not be a bad thing). The real issue, it seems, is does the Con grant the universe of jurisdiction for the S.Ct.? It seems, for the other branches, impliedly, if not explicitly, the Con has always been a limitation on the power of government – what power is not expressly granted the government does not have. Likewise, the Court’s power comes from its jurisdiction, which, it would seem, is limited by the Con to specifically enumerated situations, thus defining its universe.
James,
First off, are you taking issue with judicial review itself? Because the argument for that is pretty simple:
The Court must apply the law.
The Constitution is the highest law of the land.
In a conflict between a lesser law and the highest law of the land, the highest law of the land wins.
There was such a conflicting law in this case.
The Constitution trumped.
Note that this question, figuring out which law to apply, is distinct from what goes on today; premptively striking down statues and holding them void. The decision in Marbary can be read as limiting its “judicial review” to the case at hand; that is, not striking a law down but just refusing to apply it in this case.
Regarding the exceptions clause, you’re failing to note the important legal distinction between original jursidiction and appellate jurisdiction.
Original jurisdiction allows the Supreme Court to be the first stop in a case, to take a case right away, as opposed to reviewing the judgment of another court on appeal (appellate jurisdiction). Most cases that reach the supreme court are on appeal, people have to file suit in some federal district or state court first, and the case works its way through the system. If there’s original jurisdiction, the court can take the case right away.
The Constitution says Congress can make exceptions to the courts appellate jurisdiction. That means that Congress can limit what kind of appeals the Supreme Court receives.
So in short, the Constitution sets certain areas where the Supreme Court has original jurisdiction, and also specifies the Court’s appellate jurisdiction, and allow Congress to limit this appellate jurisdiction.
Now in Marbary, we weren’t dealing with Congress limiting the Court’s appellate jurisdiction. Rather we were dealing with Congress attempting to give the Supreme Court a power to issue a writ of mandamus to public officers.
The Supreme Court pointed out that issuing a writ of mandamus is more like satisfying a claim under original jurisdiction than it is like hearing an appeal. It’s going to the Court and saying, “hey do this” as opposed to appellate jurisidiction”, where you’re going to the Court and asking, “hey, review this lower court judgment.”
Thus Marshall wrote:
“It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction.”
So this law granting the Supreme Court a power of mandamus didn’t deal with appellate jurisdiction, but with original jurisdiction.
OK, so where does that leave us?
We have this law of Congress which purports to give the Supreme Court a broader original jurisdiction that the Constitution gives to it. Its as if Congress, in passing this law wanted to tack on to the Constitution one more item to the list of things the Supreme Court had jurisdiction over. It wanted to ignore the limitations of the Constitutional system, and create its own regime. This is obviously unconstitutional. The Constitution limits the original jurisdiction of the Supreme Court. A law which tries to “unlimit” it will not be enforced.
The point about the exegesis of the exceptions clause is just Marshall pointing out that original jurisdiction is distinct from appellate jurisdiction. They’re not the same thing; that’s why they’re differentiated in the Constitution. This doesn’t “make the exceptions clause void” at all. It’s just saying that the exceptions clause is a red herring here.
I can understand the frustration of seeing an activist judiciary toss out good laws, but we shouldn’t blame Marbary for that.
Nor should you identity Marbary with the modern doctrine of judicial view, which sees the Supreme Court as the sole supreme constitutional authority, and which allows courts to void laws as being unconstitutional. Marbary is much more modest.
It says that since its the job of courts to apply the law, they have to know what the law is. Therefore you have to look at all the law. The Constitution is the highest law, and it takes precedence of all else. Therefore a law which conflicts with the constitution will not be enforced by the court, because it has to enforce the Constitution, which trumps this lesser law.
Is that so controversial?