There has been a lot of news about outgoing GOP administrations doing all they can to undermine incoming Democratic administrations. In Wisconsin, Michigan, North Carolina and elsewhere, Republican Houses and State Senates are curtailing the executive’s power as an outgoing GOP governor turns over to a new Democratic one. It’s shady, it’s against the will of the electorate, and believe it or not, it’s nothing new. It actually goes back to the very first transition of power, from the Federalist John Adams to the Democrat Thomas Jefferson. It also gives us a great opportunity to discuss one of our favorite events in U.S. History, the Marbury v. Madison case (which our acting Attorney General said was a horrible decision, a thought that makes him utterly unqualified to be the acting Attorney General).
Background on the matter
The presidential election of 1800, was one of the most vicious and ugly elections ever, even by today’s standards. The three major candidates were Thomas Jefferson, Aaron Burr, and John Adams, who was the incumbent U.S. president. Adams was aligned with the pro-business and pro-national-government politics of Alexander Hamilton and the Federalist Party, while Jefferson and Burr were part of the opposing Democratic-Republican Party, which favored agriculture and decentralization to the states. American public opinion had gradually turned against the Federalists in the months prior to the election, mainly due to their use of the Alien and Sedition Acts as well as growing tensions with Great Britain, with whom the Federalists favored close ties. The animosity between the Federalists and Jefferson reached a fever pitch with some particularly nasty slanders back and forth; Adams and Jefferson, two of the original signers of the Declaration of Independence, would not reconcile their differences until years later. Jefferson easily won the popular vote, but barely beat Adams in the Electoral College.
Adams and the Federalists became determined to exercise their influence in the lame duck period before Jefferson took office, and did all they could to fill federal offices with “anti-Jeffersonians” who were loyal to the Federalists, particularly to the Judicial Branch. On March 2, 1801, just two days before his presidential term ended, Adams nominated nearly 60 Federalist supporters to circuit judge and justice of the peace positions the Federalist-controlled Congress had newly created. These last-minute nominees—whom Jefferson’s supporters derisively referred to as “the Midnight Judges”—included William Marbury, a prosperous businessman from Maryland.
The following day, March 3, the Senate approved Adams’s nominations en masse. Sound familiar? It’s similar to what GOP governor’s did recently, but instead of packing the appointments of judges, they gutted the powers the incoming governor would be able to wield.
The appointees’ commissions were immediately written out, signed by Adams and sealed by his Secretary of State, John Marshall (remember that name, he’ll come up again in this case). Marshall then dispatched his younger brother James Markham Marshall to deliver the commissions to the appointees. With only one day left before Jefferson’s inauguration, James Marshall was able to deliver most of the commissions, but a few—including Marbury’s—were not delivered. It was widely rumored he gave up early to go to an inn to drink.
The day after, March 4, 1801, Thomas Jefferson was sworn in and became the 3rd President of the United States. As soon as he was able, Jefferson instructed his new Secretary of State, James Madison, to withhold the undelivered appointments. In Jefferson’s opinion, the commissions were void because they had not been delivered in time. Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. Over the next several months, Madison continually refused to deliver Marbury’s commission to him. Finally, in December 1801, Marbury filed suit against Madison in the U.S. Supreme Court, asking the Court to issue a writ of mandamus forcing Madison to deliver Marbury’s commission.
So the case goes to the U.S. Supreme Court, which was now headed by Chief Justice John Marshall, the same man in charge of delivering the commissions to whom he delegated to his brother. For all practical purposes, he should have recused himself as he was clearly conflicted in this matter. Of course he didn’t.
Marshall framed the decision with three questions at issue:
- Did Marbury have a right to the commission?
- If he did have the right to the commission, was there a remedy available the Court could provide?
- If there was a remedy, could the Court issue it?
On the first issue, Marshall said “yes” he did have a right to the commission. It had been signed and sealed and the delivery was just a formality. In a way, he was slapping the hands of Jefferson and Madison for not honoring the appointment. An appointment, of course, that he himself had failed to deliver.
On the second issue, he stated simply that of course the Court could provide a remedy. Some of Marshall’s best writing appears here, and is cited often. Marshall wrote: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.” The specific issue, however, was whether the courts—part of the judicial branch of the government—could give Marbury a remedy against Madison—who as Secretary of State was part of the executive branch of the government. The Court held that so long as the remedy involved a mandatory duty to a specific person, and not a political matter left to discretion, the courts could provide the legal remedy. In a now well-known line of the opinion, Marshall wrote: “The government of the United States has been emphatically termed a government of laws, and not of men.” Again, poking Jefferson and Madison. After concluding that Marbury had a right to his commission and that a legal remedy existed to provide it to him, Marshall then confirmed that a writ of mandamus—a type of court order that commands a government official to perform an act they are legally required to perform—was the proper remedy for Marbury’s situation.
This brought Marshall to the most important issue of the opinion: the propriety of the Supreme Court’s jurisdiction over the matter, which would determine whether or not the Court had the power to issue the writ requested. This issue depended entirely on how the Court interpreted the section of the Judiciary Act of 1789 that regulated the Supreme Court’s writs of mandamus.
“The Supreme Court shall have exclusive [original] jurisdiction over all cases of a civil nature where [States are a party, between ambassadors, etc.] … 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 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.”
— Judiciary Act of 1789, Section 13
Marbury argued that the Judiciary Act gave the Supreme Court the authority to issue writs of mandamus when hearing cases under original jurisdiction. However, Marshall then noted that this authorization clashed with Article III of the U.S. Constitution, which establishes the judicial branch of the U.S. government.
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.
— U.S. Constitution, Article III, Section 2.
This section of Article III of the Constitution establishes that the Supreme Court only has original jurisdiction over cases where a U.S. State is a party to the lawsuit, or where the lawsuit involves foreign dignitaries. Neither of these categories covered Marbury’s justice of the peace commission, and so, according to the Constitution, the Court could only have heard Marbury’s case while exercising appellate jurisdiction, meaning it would have had to go to a different circuit court first. However, Marshall had interpreted the Judicial Act to have given the Court original jurisdiction over the matter: this meant that the Judicial Act apparently took the initial scope of the Supreme Court’s original jurisdiction—which was limited to cases either directly involving States or involving foreign dignitaries—and expanded it to include issuing writs of mandamus. Marshall ruled that Congress cannot increase the Supreme Court’s original jurisdiction as it was set down in the Constitution, and therefore that the relevant portion of Section 13 of the Judiciary Act violated Article III of the Constitution.
Therefore, that part of the Judiciary Act was determined to be unconstitutional– a first for the new republic. So Madison wins the case on a technicality, but Marshall takes that technicality and uses it to expand the power of the Judicial Branch to include Constitutional Judicial Review. Judges were no longer lackeys tasked with enforcing the laws, they were a co-equal branch of government tasked with interpreting the law and ensuring they comported with the Constitution. Marshall rules that the Courts have the power to refuse to enforce legislation inconsistent with the Constitution, and establishes the true Article III power of the Supreme Court in American law.
Now, what is occurring with the GOP legislatures and the incoming Democratic governors is being done at a state level, and would largely depend on state constitutions. Nonetheless, do not be surprised if this gets litigated in much the same way.
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