It is to this that Jefferson objects, the issue not being laid before The Court, therefore not qualifying for their judicial notice.
It is to this that Jefferson objects, the issue not being laid before The Court, therefore not qualifying for their judicial notice.
I find it difficult to understand Jefferson’s rationale here. But then, maybe I’m just slow on the uptake. Can you explain to me what motive he might have had for making such a claim?
Apparently, Jefferson was objecting to the entire concept of judicial review. But without it, how can the Supreme Court discharge its Article III duties?
The situation in Marbury boils down to a petition to the Supreme Court to issue a writ of mandamus, compelling the Executive Branch to deliver Marbury’s commission on the grounds that it had original jurisdiction to do so, on the basis of section 13 of the Federal Judiciary Act of 1789, a legislative statute. The situation entailed a reading of the Constitution to ascertain whether the Court did, in fact, have such a power under the Constitution. And a unanimous Court found that it did not.
Might I suggest in passing here that “judicial review” is not the same thing as “judicial activism?” Indeed, it seems clear to me that Chief Justice Marshall was not a “judicial activist.” He fully disclosed his judicial philosophy at the Virginia Ratifying Convention of 1788 (Marshall was pro-ratification):
If Congress were to make a law not warranted by any of the powers enumerated [in the federal Constitution], it would be considered by the judges as an infringement of the Constitution which they are to guard…. [The Court] would declare it void.Evidently Marshall relied on Hamilton’s analysis of the Article III powers as set forth in The Federalist No. 78. It is clear from Hamilton that Article III was designed from the outset to be the only non-political branch of constitutional government. The other two branches — the legislative and the executive — were clearly envisioned as political branches, which is why their members are subject to periodic election. As Hamilton put it, the Article III Supreme Court had no “WILL” of its own, but only “JUDGMENT.” Thus Hamilton argued that limited government required that courts be empowered to “declare all acts contrary to the manifest tenor of the Constitution void”: Such laws are not “law,” but nullities from the get-go.
But the only way to get to that end is by the route of judicial review of any legislative statute as to its conformity with the relevant constitutional texts.
In Marbury, Chief Justice Marshall found that the grant of mandamus to the Supreme Court effected by the Judiciary Act was unconstitutional. Congress can, by statute, detract from Article III powers; but it cannot add to them. Article III already fully specifies Supreme Court jurisdictional issues, whether they be original or appellate. Article I gives no constitutional warrant to Congress to expand the powers of Article III judges. So the Marbury Court struck down section 13, on which Marbury’s petition to the Court was premised.
It seems nearly certain that Chief Justice Marshall was aware, on practical and prudential grounds, that to empower Article I — a political body — to expand the powers of Article III — a non-political body — could not fail to result in the politicization of Article III.
Article III envisions the (non-political) Supreme Court as the good-faith mediator between the (political) branches detailed in Articles I and II — which deal with the making and execution of federal law respectively — using the federal Constitution as its touchstone and guide. The Court DOES NOT MAKE LAW itself.
This is all “judicial review” amounts to.
I gather Jefferson might have objected to it on the grounds of his political philosophy — which is way to the LEFT of my own (FWIW). Seemingly he cognized the basic plan of the Constitution as involving three equal, separate, co-ordinate branches. But the operative word for him, here, is “separate”: One branch doesn’t have the right to interfere with the workings of the other branches, let alone one branch being able to tell another what to do within the sphere of its own competence. If a branch told another branch what to do, and the other branch acceded to the command, then obviously, the two branches are no longer “equal.” (Or even “separate.”) For one branch would then clearly be superior to the other.
Which is why Jefferson would almost certainly have ignored a writ of mandamus from the Supreme Court, had they decided to issue one in Marbury.
But if Jefferson’s understanding is correct, then why do we need Article III at all? Jefferson probably was not well-informed about the discussions at the Philadelphia Convention on precisely this subject matter. He was in Paris at the time. But Hamilton was there….
I wonder which of the two men — Jefferson or Marshall — was the more disposed to “regal” tendencies of character….
So far, I’ve been trying to outline the original meaning of judicial review, thinking it a good contrast with the main judicial problem that plagues our time, judicial activism.
The most egregious instances of judicial activism in recent times have been the Roe v. Wade and Obergefell v. Hodges decisions. Arguably, no Court bound by the doctrine of judicial review could have issued these decisions. Indeed, the judicial activism involved in these decisions entirely depended on the complete rejection of judicial review in the first place: Evidently, the Constitution itself was not consulted. Thus the majority justices plainly decided to place their own “discretionary jurisprudential judgment” as superior to the plain language of the Constitution. Thus five people decided to impose a whole new, and quite unconstitutional order, on some 320 billion people. And somehow, magically, we 320 billion are supposed to credit this as “constitutional law.”
These results could not possibly have been achieved had the Supreme Court remained “non-political.” Indeed, the imposition of the Rule of Five Justices over 320 billion Americans can only be understood as a political act. For these justices are making law from the bench — and they not only have no Article III warrant to do that, but they are forbidden to do that under any sensible, rational reading of Article III or of the Constitution taken in its entirety.
The Court has made itself the “king” of the States and the People; and the Constitution be damned.
Anyhoot, must close, having run on so long already. But not before leaving you with the widely accepted definition of “judicial activism”:
Judicial Activism [is] the charge that judges are going beyond their appropriate powers and engaging in making law and not merely interpreting it. Against this position is placed the ideal of judicial restraint, which counsels judges to resist the temptation to influence public policy through their decisions and decrees. — Gary McDowell, Bradley Visiting Scholar, Harvard Law School, ibid., p. 454I note with some irony that my dear correspondent Hostage — who first opened the can of worms which is Marbury v. Madison as entirely worthy of “revisiting” at this time here at FR — evidently finds Jefferson “clairvoyant” on the subject of the future polititicization of the courts, a tendency to which “judicial review” ineluctably leads over time.
Good grief, I would argue that Jefferson is the documented original source of this political problem that dates precisely to the Marbury controversy…. And I daresay I find Jefferson on the wrong side of this argument. For to Jefferson, everything is within the scope of “politics.” Thus everything is popularly “negotiable,” without constitutional limit….
Which is why I say Jefferson’s political theory is way to the LEFT of my own. I’m a political conservative; and what I try to “conserve” is the Framers’ understanding of the Constitution as they wrought it, and which the several States ratified on behalf of their respective Peoples.
Thank you, dear Hostage, and dear YHAOS, for sharing your insights!