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♪♪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 *** 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 *** 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 freedom.ou.edu.
(music)