Marbury v. Madison: A Case That Shaped America
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Marbury v. Madison: A Case That Shaped America

♪♪Music♪♪ We’re gonna talk this
morning about the case of Marbury vs. Madison. Now this is a case that
everyone’s heard of in this country, presumably; most of the
people who’ve heard of it realize it’s famous for having
introduced into American law, or adopted into Supreme Court case
law the principle of judicial review, which is the legal
principle that says that the Judicial branch has the power to
interpret the Constitution, apply its interpretation of the
Constitution against acts of the legislature, and if it finds
those acts of the legislature to be inconsistent with the
requirements of the constitution, invalidate them. Judicial review power is
routinely exercised today; we all get excited when major cases
come up challenging the Constitutionality of
Congressional legislation. Most recently, the Affordable
Health Care Act, the Obamacare act; everyone gets excited, but
what’s interesting is that we all assume, ah, the reality of
the judicial review power. No one questions that so much
anymore. And I wanna take us back to a
time in our history when the judicial review power itself was
somewhat questionable, let alone its application in a particular
instance. And so I’m gonna educate you on
statutes that some of you will know and some of you will never
have wanted to know (laughs) anything about. But that’s what happens when
you’re a captive audience. The, ah… We’re gonna go back actually to
the Constitutional Convention briefly, we’re gonna talk about
the drafting of the Third Article of the Constitution,
which provided for the judicial branch of government. And if you look at that, what
you’ll realize is that the framers of the Constitution had
a hard time with the judicial branch. You’ll pull this out of the
language that they eventually chose to use. There is a discussion,
description of judicial power of the United States. It includes what are called
Federal Questions; the courts of the new federal government will
be able to decide cases involving federal questions. And it also includes something
called Diversity Jurisdiction, which is suits between citizens
of different states. The framers thought that state
courts couldn’t be trusted with those; that they would be
disposed to favor the claim of their own citizen against the
claim of the out-of-stater or there would at least be that
perceived bias. So those sorts of cases were
also to be entrusted to the federal courts. You know, okay, well that’s
good. Now, what will the federal
courts look like? And that’s where the discussions
collapse. Everyone agreed there should be
one Supreme Court of the United States and that it should
exercise two types of jurisdiction: Original and
Appellate. But they couldn’t decide what
anything else should look like. What the lower federal courts
should look like; should there be trial courts, presumably? Should there be intermediate
appellate courts, maybe? Not really sure. And eventually what the framers
decided to do, being human and very hot was to say, Look, why
don’t we let the first Congress figure that out? So they dropped a line in that
says there shall be one Supreme Court and such inferior courts
as the Congress may, from time to time, determine. They punted it. Which was fine; they do that
elsewhere in the Constitution too. But they did fix the appellate
and original jurisdiction categories, and I’ll say a word
about that because it’s gonna become important when we get to
the Marbury case. Original jurisdiction, that
means cases in which the Supreme Court sits as a trial court, so
there’s witnesses and “Objection, Your Honor,” and all
that stuff. The parties can come. Those were to be cases for the
most part involving foreign countries and states. So if the state’s a party or if
the case involves an ambassador or something like that, then the
Supreme Court can sit as a trial court. And you may know it still does
occasionally. Oklahoma and Arkansas sue each
other, the Supreme Court hears the case as a trial court. Now, the appellate jurisdiction
was, again, sort of punting, everything else. Okay, so that’s easy. So they write, Everything else
will be appellate jurisdiction, meaning that the claim has to
first be heard by a lower court and then the Supreme Court can
resolve the issues that the lower court doesn’t sort out to
the satisfaction of the parties, to see if the lower court made
any sort of a mistake. Now, Constitution’s ratified,
new President, new Congress, and one of the first things the new
Congress did was to tackle that problem of these lower federal
courts. And they put together something
called the Judiciary Act of 1789. First Congress elected in ’88,
they take their seats in 1789, and here we go. Sleeves rolled up, the Judiciary
Act. And they created a somewhat
flawed system that worked, in material part, like this: there
should be trial courts, so we’re gonna have trial courts, and
we’re gonna let the president appoint judges, Senate’ll
confirm ’em, for what we’ll call district courts. And they’ll be eight – there’ll
be a district of New Jersey with a judge. Maybe an eastern district of
Virginia and a western district of Virginia, ‘cus Virginia’s
kinda big. There’ll be a district of
Maryland, and so all that’s taken care of. Now, should there be
intermediate appeal courts? Yeah, everybody thought. Um, but what should they look
like? Now, nowadays, you know, we call
them the circuit courts and they got circuit judges and you know,
there’s this whole separate layer. But back in 1789, Congress
thought, Why don’t we do it like this: why don’t we let the
circuit court consist of the district judge, whose decision’s
being appealed, and seated next to him will be one of the
Supreme Court justices. So we’ll send them riding around
the country on circuit. And so, let’s say you had a case
in the eastern district of Virginia and you think the judge
is an idiot and you lose, you say, “I’m gonna appeal this!” The judge says okay. And they wait until the time
comes; “Hey look, there’s the Supreme Court justice, my
favorite justice, Justice Bushrod Washington,” for
instance, of whom you’ve now heard. You may not have; he was
George’s nephew and heir. “Here he comes!” And he rides in, and so the
district judge takes a district judge hat they didn’t wear
hats, but assuming that he did takes his district judge hat
off, puts on a circuit judge hat; it’s the same guy, but now
Washington, Bushrod Washington is sitting next to him. Okay, so what’s your complaint? Now, you can imagine as a party
this isn’t the optimal situation if you’re the party complaining
“He was wrong!” You gotta persuade the Justice
that he was wrong, and if they disagree then you file something
called a writ of error and the Justice will take the file,
carry it back to Washington with him, and then he and his
colleagues on the Court will hear it. Now there are certain advantages
to this; one Justice will have already heard the case, but
mind, one Justice will have already ruled on the case also. So these are gonna kind of, you
know, with an edge. I’ve never done a study to see
how many of these were successful, but it would be an
interesting- how many times the Justice that carried the file up
was reversed by his colleagues. That’d be interesting to see. But the worst part of this
system wasn’t that; it was that the Justices hated it. And you can imagine why; let’s
say you’re the new person on the Court and the Chief Justice
assigns the districts, and John Marshall, when he becomes Chief
Justice he always gets the 4th circuit, which is in Richmond,
right? He just goes and he says, “Bye!” and he goes home! And he hangs out and he does
cases and goes to Raleigh, North Carolina, which was pleasant,
and plays bule in the street with the members of the bar, and
we know a lot about it. Meanwhile, the new guy gets,
wait for it, Georgia, which is malaria-infested swamps, and
they complained constantly about how awful this was, this circuit
riding responsibility, those who got the really bad circuits to
ride in. Well, that’s the set-up until
1801. George Washington serves two
terms, John Adams elected President, he’s a one-term
President; things didn’t go so well for John Adams. Uh, but as he’s leaving, he’s
not just leaving by himself. Some of you know that we had
two, after Washington’s term, two political parties develop:
the Federalists, which was sort of New England-based, Adams was
the nominal head, Alexander Hamilton was the brains; and
what we call the Democratic Republicans, which was Thomas
Jefferson’s gang. And Jefferson’s party hated the
Federalists. The Federalists hated Jefferson;
some of them thought he was the Antichrist. They broke out over issues of,
you know, wine, no wine; France vs. England; agriculture vs. industrial development, and this
sort of thing. But… So when Jefferson wins in 1800,
Adams is a one-term President, Adams is in a bit of a panic as
is his party. They’re not only gonna lose the
White House, they’re gonna lose the House of Representatives,
and a couple years later the Federalist party is gonna lose
the Senate, and they’ll no longer really a viable force in
American politics. So. So what’s a good Federalist to
do? Well, what Adams did was to take
two things and combine them. One was this perennial Supreme
Court antipathy towards the circuit riding system. And the other was this panic
that the Jeffersonian Republicans/Antichrists were
going to destroy the republic. And he got his Congress, the
Federalist Congress, just as they’re about to leave office –
Jefferson’s won but there’s a long time lag before
Jefferson’ll be sworn in – to pass a new Judiciary Act, the
Judiciary Act of 1801. And the Judiciary Act of 1801
says the circuit riding thing didn’t work, so we’re gonna
create a whole bunch of new independent circuit courts, and
they’ll be staffed by circuit court judges, and we’re gonna
kind of create a bunch of sort of lower order judges, Justices
of the Peace, to handle a lot of smaller matters and primarily,
not just in urban areas, but including in urban areas. There’ll- gonna be 42 of those,
there’s gonna be a whole lot of new circuit judges, and I’m to
save Jefferson the trouble I’m gonna appoint them now. And so he sat down and started
naming, the Federalist Congress running these things through
(inaudible). Jefferson was furious about
this. His line in correspondence was,
“The Federalists have retreated into the judiciary as a
stronghold, and from there they intend to batter down all the
works of Republicanism.” Which is kind of what Marbury
will be about, as you’ll see. So for the Jeffersonians. So all these people are
appointed. Now, the process of appointment
is kinda interesting: they get nominated, they get confirmed by
the Senate, and then they get these certificates saying
“You’re a Justice of the Peace,” or “You’re a circuit court
judge.” And they’re all supposed to be
signed by the Secretary of State and then delivered to the
recipient, who can then go into action, right, for these
five-year terms for Justices of the Peace and life terms for the
circuit court judges. Well, who’s the Secretary of
State at this time? Interestingly, it’s a fellow
named John Marshall, who was probably the leading Federalist
in Virginia. This isn’t all Marshall was
doing; the Supreme Court Chief Justice had resigned, Adams had
to fill that spot. The first few people that he
invited to become Chief Justice turned him down ‘cus they had
better jobs. John Jay for instance was
happier being governor of New York, ‘cus there was more going
on then on the Supreme Court. So eventually, Adams said to
Marshall, who was helping him vet these- it’s a bit like
Bush/Cheney, “Well, I guess I’ll have to pick you!” Right? And Marshall said, “Cool,” or
the late 19th century equivalent, and so he got… He was actually simultaneously
Chief Justice of the United States and Secretary of State. It’s the only time that’s ever
happened, or probably ever will happen. Well, Marshall all this stuff
gets approved the last day the Adams administration’s in office
Marshall… They all get signed, but he
doesn’t have time, evidently, to deliver them. So what happens to these things
is that they’re left in his office when he leaves. Jefferson gets sworn in the next
day, a bunch of these certificates, and Jefferson’s
Secretary of State is James Madison, his friend. Madison goes into his office as
you do, I’m romanticizing a little bit, you look in the
drawers, see what the guy left, the last guy… And there’s all this big stack
of certificates. And so he says to Jefferson,
What do we do with these? And he looks and they’re all
sort of famous, known Federalist party members. And Jefferson says, essentially,
Trash ’em. They weren’t legally operative
until they were delivered, so they weren’t delivered, so
they’re void! So we can ignore them. And then he gets his Congress to
set about repealing the 1801 Judiciary Act, and they’ll do
that by passing in 1802 a judiciary act that goes back to
the old 1789 act and for good measure, changes the dates of
meeting of the Supreme Court to eliminate what had been the June
term in favor of just a February term. Which essentially says the
Supreme Court’s not going to meet at all during the year
1802, which he figures’ll give people breathe so they won’t
have an opportunity to get together and decide that what
he’s just done is unconstitutional. (laughter) If they choose to
create or recognize the judicial review power. Time passes, and we don’t know
what went on behind the scenes; this case is so complex and
there’re so many unanswered questions. We do know that in 1803, William
Marbury shows up. Marbury was one of the Justices
of the Peace who didn’t get his certificate, along with three
other guys who get forgotten. So there are actually four
plaintiffs in Marbury vs. Madison. And they’ve gotta figure out-
they’re gonna file a lawsuit to get their certificates. So where do they do it? Where do they do it? The answer they come up with is:
let’s file this in the Supreme Court. Now, can they do that? Remember, I told you that
Article 3 says that the Supreme Court does have original
jurisdiction in some cases, but it’s cases involving ambassadors
or, you know, countries and states and stuff, and this isn’t
that. But Marbury says, Ah, yeah, but
look: 1789 Judiciary Act says that, this is the statute
creating the lower federal courts, that the federal courts
can have the jurisdiction to issue what are called writs of
mandamus, which is “we command you to…” which is orders, to public
officials, and that’s what I want! I want to file suit and get the
Supreme Court to issue a writ of mandamus ordering James Madison,
the Secretary of State, to give me my stupid certificate so I
can start drawing a federal salary as a Justice of the
Peace. And the same with the other
three guys. So that’s the lawsuit. Now, it gets to the Supreme
Court immediately. And the Court gets it and
considers it and eventually issues one of the most creative
and ingenious opinions ever in the history of the Supreme Court
structurally. Because here’s what the Court
says in the Marbury vs. Madison opinion; some of you
know this. There’re really three issues
involved: Do we have jurisdiction? Right? Over this case. That’s the first question in any
lawsuit. Assuming we do have
jurisdiction, is this relief, the requested relief available
to this party? So, can Marbury get a writ of
mandamus here? And third: if so, should he get
it here? Is a writ of mandamus warranted? Should we issue, are we going to
issue, an order to James Madison to give up this certificate? And the Court decides to answer
questions two and three first, and that’s what’s unusual about
this, and get to the jurisdictional question later. So first is: yes, mandamus is
warranted. Judiciary Act of 1783, Section
13 says we can issue writs of mandamus to public officials, so
we could issue this relief. Question two: should we? Yeah! Marshall… And, now, understand the irony
here: Madison should have given up those certificates that I
signed and didn’t have time to deliver. You may be sort of thinking, is
there a conflict of interest here? Yeah! But this is the early 19th
century and we… Uh, there’re different rules in
play. That may be the subject of a
later talk. So those are- so we’ve slammed
the Jeffersonians, right? Madison did wrong, we should
order you to give up your certificate, we’re seeing great
Constitutional crisis looming, right? ‘Cus what’s Madison gonna do
when John Marshall orders him to give up the certificates? Are the Jeffersonians gonna cave
to the Federalists on the court? Right? This is where the chapter would
end if this were a thriller. Okay, but we’re gonna go ahead
quick to next chapter. And the answer is: that question
doesn’t have to be answered, because in part three, Marshall,
for the Court, says, Yeah, but we don’t really have
jurisdiction. We don’t? Why don’t we have jurisdiction? Well, this Section 13 of the
Judiciary Act does say that we can issue writs of mandamus to
public officials, but it’s unconstitutional. Because Article 3 says we have
original jurisdiction in only these few instances, and
Congress doesn’t have the power, through legislating, to amend
the Constitution by adding additional original jurisdiction
to the Court. If Congress wants to give us
additional cases in which we can sit as a trial court, Congress
has to go through the amendment process provided for in the
Constitution. So, (whooshing sound) wow! And can we do this, the Court? Absolutely, and this is the most
famous line from Marbury vs. Madison: “It is emphatically the
province and duty,” the Court says, “of the judicial
department to say what the law is. And the law includes the
Constitution. That’s the claiming of the power
of judicial review. Now, it’s a brilliant decision
because it slams the political opponents of the Federalists AND
claims judicial review power. It may well be that the intent
was then to embark upon a series of invalidation decisions as the
Jeffersonians put out legislation with which the
Federalist court disagreed. We don’t know. And we can’t know the answer to
that question, because Jefferson reacted. What Jefferson did was, and this
is maybe a Post hoc ergo propter hoc, so this is after, therefor
because of, argument. We don’t have a lot of evidence
because, again, these are backroom conversations, but we
do know the sequence of events. That, about a year later, before
the court could really amp up on the exercising of its judicial
review power, Jefferson instigated the impeachment of a
Supreme Court Justice, Marshall’s colleague Samuel
Chase. And the Chase impeachment was
chilling to the Court. Samuel Chase would take more
time to describe then we have, but he was found not guilty. He was a bit of a, uh,
provocateur. He made political speeches in
grand jury charges, etc. He’s let off, but evidently the Court
was upset. There’s some evidence that
Marshall was actually, who was in the room, was seen to cry. The perversity of the Chase
impeachment, incidentally, was it was presided over by the
President of the Senate, the Vice President of the United
States, Aaron Burr, a name you’ll remember, who at the time
was indicted for murder in New Jersey for killing Alexander
Hamilton, the only time in history, some wag noted, that an
indicted murderer presided over the trial of a Supreme Court
Justice. A little bit of perversity. But it is true that after the
Chase impeachment, after Marbury, John Marshall never
exercised the judicial review power again to invalidate an act
of the federal Congress. He went after a number of state
statutes, but he never again said to Congress, “You can’t do
that, it’s unconstitutional.” Indeed, the Court itself as an
institution didn’t exercise the judicial review power for 50
years. And the next time we see it
again against the federal government is in the Dred Scott
decision, when Roger Tawny uses the judicial review power to
invalidate the Missouri Compromise. That’s a topic for another day. The last thing I wanna say is,
and some of you know this, Marbury and Madison- Marbury
doesn’t get his commission but his portrait hangs in the Court
today, as does Madison’s. They’re side by side in a little
dining room off the main dining room in the Supreme Court
building in Washington, where they serve as a reminder to the
Court, and to us I suppose, of this powerful doctrine of
judicial review that our court claimed in the Marbury vs. Madison decision. I’d like to suggest that it
might be useful if they also served as a reminder to the
Court and maybe the rest of us of the difficulties of working
out the operational mechanics of our constitution, the strong
likelihood of interbranch struggle, and the difficulties
as a people, we the people, of sustaining the form of
self-governance that our, that our framers put together. Thank you. (applause) (music) Freedom 101
is made possible by generous support from Woody Young and the
University of Oklahoma Alumni Association Freedom 101 is a
program of the Institute for the American Constitutional Heritage
at the University of Oklahoma. For more videos and podcasts
visit (music)

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