In his 2008 book The Activist: John Marshall, Marbury v Madison, and the Myth of Judicial Review, Lawrence Goldstone argues persuasively that the Chief Justice was intent on using William Marbury’s suit against the Jefferson Administration to claim for the Court the authority, nowhere specified in Article III of the Constitution, to be the ultimate arbiter on the constitutionality of legislative acts. Marshall is thus portrayed by Goldstone as an activist judge whose belief that the judicial system had the power to void legislation put him at odds with the Framers of the Constitution who assumed no such right of judicial review in Article III. But was Marshall really a judicial activist who introduced the concept of judicial review as an important principle of the courts as Goldstone and many others—both progressive and conservative—contend? In this essay, I will analyze Marshall’s opinion by examining not only the materials relevant to the decision but also common eighteenth-century views regarding judicial voiding of legislative acts.
Blackstone’s Commentaries and the 18th Century American Judiciary
The American legal system was greatly influenced in the latter half of the eighteenth century by the Commentaries on the Laws of England of William Blackstone, published incrementally from 1765 to 1769. In this monumental work, a collection of Blackstone’s Oxford lectures, the author sets forth in readable fashion the bulk of English common law. The majority of American lawyers trained at this time were well-versed in the Commentaries, which served as the fundamental authority for legal decisions in the Revolutionary and Early Republic periods. For our purpose, the key point was Blackstone’s Tenth Rule, which states that the judiciary has the authority to reject the application of a law only when it is at odds with another existing statute, thus rendering application impossible. Nowhere does Blackstone suggest that a court could review any law whatsoever to determine its constitutionality. Therefore, American lawyers, including Marshall, trained as they were in Blackstone’s Commentaries, were very cognizant of the limits of the judiciary when it came to reviewing a law’s constitutionality.
Most of the debates pertaining to the judiciary at the Convention of 1787 took place between June 19 and July 21. During those debates the concept of judicial review, or giving the courts the final authority to veto a law, was never raised. It is true that many delegates, including James Madison, argued for a Council of Revision that would include the judiciary, but, as Goldstone himself notes, participation in such a council was not the same as having the exclusive right of veto. At any rate, the concept of a special Council of Revision was, in the end, rejected. As Madison’s notes on the debates clearly show, the delegates, many of whom were lawyers, were content to follow Blackstone in limiting what the court’s authority would be in determining the constitutionality of legislation.
Article III of the Constitution
The Framers laid out the functions of the judiciary in three brief sections in Article III of the Constitution. It is in Section 2 that the specific jurisdiction of the Supreme Court is articulated. Therefore, this was the relevant section that Marshall had to consider when rendering his opinion in Marbury v Madison. It reads as follows: “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.” Note that there is nothing in any section of Article III that can be construed as giving the Court final authority to analyze and decide on the constitutionality of every piece of legislation.
In Federalist No. 78, Alexander Hamilton treats the concept of judicial review in Blackstonian terms. Asserting that “every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void,” Hamilton declares that it is the Court’s responsibility to interpret legislative acts in light of fundamental law, which is the Constitution. Where the will of the legislature, as declared in its statutes, is in direct opposition to the will of the people, as declared in the Constitution, “the judges ought to be governed by the latter, rather than the former.” Judicial discretion, therefore, must be used in determining between two contradictory laws. Again it must be noted that Hamilton does not give unlimited authority to the judiciary to void legislation. Acting as the intermediary between the legislature and the people, the Court has the obligation to ensure that no law that undermines the Constitution is enacted.
Section 13 of the Judiciary Act of 1789
On September 24, 1789, President George Washington signed into law the first Judiciary Act. Crafted primarily by two future justices of the Supreme Court, Oliver Ellsworth and William Paterson, the Act established the organization of the federal court system, which had been merely sketched in Article III of the Constitution. Most relevant to our discussion is Section 13, which authorized the Supreme Court “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.” It was with the understanding that the Supreme Court held original jurisdiction to issue writs of mandamus that William Marbury brought suit against the Jefferson Administration in the Supreme Court to demand that he and others be given the appointments approved by the Adams administration.
Marbury v Madison: The Case
In February 1801, soon before the end of John Adams’s term in office, the Senate passed a revised Judiciary Act that created additional offices within the judiciary. It was signed by Adams on February 13. In one of his last acts as president, Adams made appointments to these offices, the majority of which were filled by Federalists. For the appointments to take effect, the commissions had to be delivered to the appointees by the secretary of state or those delegated by him. Due to the lateness of the appointments, several commissions were not able to be delivered before the new administration took office on March 4, 1801. When an incensed Thomas Jefferson ordered James Madison, his secretary of state, not to deliver the commissions, William Marbury, a Federalist stalwart appointed as one of the 42 justices of the peace for the newly-created District of Columbia, went to the Supreme Court to seek a writ of mandamus demanding that Madison provide the appropriate commission. The basis for this plea was Section 13 of the original Judiciary Act, which gave the Supreme Court jurisdiction to provide such writs.
Charles Lee, attorney general in both the Washington and Adams administrations, served as the plaintiff’s lawyer in the case. A friend of Marshall, Lee was confident that the Court would side with his client since the Judiciary Act was clear in giving it original jurisdiction in the issuing of writs of mandamus. Indeed, one of the justices who would hear the case was William Paterson, one of the principal authors of the Act. Although Lee brought suit against the Secretary of State on December 16, 1801, the case was delayed until February 9, 1803. When the trial finally began, it took on a bizarre tone as, in a direct assault on the integrity of the Court, neither the defendant nor any representative of Jefferson’s Administration appeared. Thus, all evidence and witnesses were provided by Lee, who ended his arguments by asking three pertinent questions: Can the Supreme Court award a writ of mandamus in any case? Can it present a writ to a secretary of state in any case? Can it present a writ to Madison in the current case? To the attorney for the plaintiff, the answer to each question had to be an absolute “Yes.”
On February 24, Marshall issued his opinion, which was unanimously approved by his fellow justices, including Paterson. In the opinion of the court, Marshall himself asked three questions: Has the applicant a right to the commission he demands? If he has a right and the right has been violated, do the laws of his country afford him a remedy? If they do afford him a remedy, is it a writ of mandamus issued by the Supreme Court?
Marshall answered the first two questions in the affirmative, in essence reprimanding Madison and Jefferson for their failure to perform the simple duty of providing a duly signed and sealed commission to the plaintiff. It was, of course, Marshall’s response to the third question that made the case so memorable. After providing Blackstone’s definition of a writ of mandamus, Marshall insisted that the Marbury case was the perfect instance of the use of such a writ. However, the Chief Justice continued, the Supreme Court was not the proper court to issue a writ of mandamus since Section 13 of the Judiciary Act of 1789, which gave the Court original jurisdiction to issue writs, was unconstitutional. Quoting from Article III, Section 2, Marshall insisted that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” In other words, following Blackstone and Hamilton, Marshall found it necessary to void a legislative act since, by giving the Supreme Court jurisdiction not provided for in the Constitution, it was in direct opposition to fundamental law: “A Law repugnant to the Constitution is void.”
Was Marshall an Activist Judge?
A case may be made that Marshall’s opinion, which was supported by all the justices present at the trial, was ill-informed. In quoting from Section 2 of Article III, the Chief Justice left out a key phrase that followed: “with such Exceptions, and under such Regulations as the Congress shall make.” One can certainly construe the meaning of this statement to suggest that legislation can be enacted which would either increase or diminish the original jurisdiction of the Supreme Court. Under such an interpretation, Section 13 of the Judiciary Act would be constitutional and the Court could have issued the mandamus as requested by Lee. It is surprising that Paterson, at least publicly, did not raise this point.
Nevertheless, there is nothing in the Court’s opinion that suggests that Marshall was using the Marbury case to inflate the power of the judiciary. Given his interpretation of Article III, he was simply following his English mentor Blackstone, Hamilton, and other contemporaries in rendering a logical decision that struck down a statute that was in conflict with fundamental law. Instead of actively establishing judicial review as a core principle of the judiciary, Marshall was following what eighteenth-century jurists had always assumed: the impossibility of upholding an inferior law when it is in opposition to a superior law. The Chief Justice in the matter of Marbury v Madison should be therefore more accurately viewed as a conservative jurist, and not as an activist.
Gregory Spindler is a retired educator currently interested in the ideological history of the early American Republic.
