John Marshall and the ‘Province’ of the Judicial Branch

Chief Justice John Marshall, oil on canvas painting by Rembrandt Peale, 1834. Public Domain

Commentary

The Supreme Court’s ruling in Marbury v. Madison (1803) has long been recognized for its important articulation of the constitutional doctrine of judicial review. Chief Justice John Marshall’s opinion famously identified a section of the 1789 Judiciary Act to be contrary to the judicial powers prescribed by the Constitution. Accordingly, he asserted the Supreme Court’s authority to set aside federal laws deemed unconstitutional.

The historical notoriety of the case has been enhanced by the fact it arose from the volatile political context of the Election of 1800. Marshall’s opinion effectively assuaged this drama by emphasizing the rule of law as inherently distinct from political action.

For historians crafting the narrative of national history a century later, Marbury v. Madison has stood as a prominent landmark that defined the political contests of the early republic. And it is a model for the resolution of subsequent constitutional conflicts. It has been a judicial case for all seasons.

John Marshall never studied constitutional law. He thought, adjudicated, and wrote in the language of the English common law tradition in which he was educated. His opinion in Marbury reflected this tradition. It was grounded in the historical responsibility of common law judges to determine the meaning, scope, and applicability of the law.

To the likely surprise of many reading the case for the first time, Marshall never used the term “judicial review” to characterize the Supreme Court’s authority to determine the constitutionality of federal and state laws. That phrase only came into vogue in the early 20th century as modern legal scholars began viewing Marbury as part of a series of constitutional precedents that, taken as a whole, formed its own distinct body of constitutional jurisprudence.

Marshall instead described the actions of the Court, as did his contemporaries, as “the province of the judiciary.”

Contemplating Marbury as an anachronistic instance of judicial review arguably has contributed to foregrounding the political characteristics of the case, a consequence which stands in sharp contrast to what Marshall had hoped to achieve in writing the opinion.

Marshall ensured that his opinion remained focused on the legal questions of the case. His language was politically neutral and paid no heed to the partisanship motivating Marbury’s circumstance. He framed the ruling around the fundamental questions that informed the suit.

He asked if Marbury had a right to the commission. Then, he asked if Marbury’s right had been violated and if there was a remedy. Lastly, he queried whether the Supreme Court had the authority to remedy the situation through a writ of mandamus.

William Marbury was one of 42 federal justices of the peace who had been nominated, approved by the Senate, and commissioned in the final days of the Adams administration. These “midnight judges” were part of a hurried judicial expansion indicative of a desperate Federalist effort to establish a bulwark against Jefferson’s anticipated agenda against the courts.

Marbury’s commission was signed by Adams and sealed by Marshall, who still served as secretary of state, but was not delivered prior to the inauguration. James Madison, the newly incumbent secretary of state, refused to deliver it upon assuming the office.

In establishing Marbury’s right to the commission, Marshall marginalized the political circumstances by focusing exclusively on the process by which the office was created. He elucidated the common law understanding of public office as an incorporeal right to real property.

His careful, definitional distinctions between the powers of appointment, nomination, and confirmation detailed the process of establishing investiture in the office. Through this process, Marbury’s commission became a vested property right once it had been signed and sealed. Madison’s denial of it was an illegitimate dispossession.

The problem lay with the Supreme Court’s inability to remedy the dispossession. Marshall identified a disparity between the statutory power enabling the Court to issue the writ in section 13 of the Judiciary Act of 1789 and the specification of the Supreme Court’s jurisdiction in Article III, section 2 of the Constitution. Since the written Constitution represented “the supreme law of the land,” any law “repugnant” to it must necessarily be void.

Marshall reasoned that the court did not possess the constitutional authority to compel Madison to deliver the commission despite his illegal actions.

This profound conclusion has often cloaked other significant constitutional expositions in the opinion, notably Marshall’s articulation of a clear criterion to justify the Court’s intervention in the affairs of the executive branch. He acknowledged, almost effusively, the political essence of the executive, and confessed to the “irksome” and “delicate” nature of a judicial investigation into cabinet high officials. And he cautiously explained that political questions, or questions that are “by the Constitution and laws, submitted to the Executive, can never be made in this court.”

But he distinguished between the political and the ministerial functions of members of the executive branch. The secretary of state was a political office. But in Marbury’s case, an injury to an individual had been done by the failure to perform a ministerial duty. The requirement of the secretary of state to maintain the Great Seal of the United States and to apply that seal to commission letters signed by the president was an official function prescribed by Congress. The executive duty did not compromise the necessary political relationship between the secretary and the president.

For Marshall, the exercise of judicial province by the Supreme Court was circumstantial. It was always dependent on the presence of a proper legal question. He did not espouse it as a constitutional power but, in the language of the common law, as the proper function of the judiciary.

From RealClearWire

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.