So let's revisit it!
Marbury v. Madison (decided 24 February 1803 by a vote of 5 to 0, Chief Justice John Marshall writing for the Court) was the first Supreme Court case to apply the emergent doctrine of judicial review to a congressional statute.
In the process, it had to deal with a poisonous political landscape: The Federalist President John Adams lost his reelection to the Republican President Thomas Jefferson. To say there was bad blood between these political parties — and the two men personally at the time — would be a gross understatement.
One William Marbury had been appointed a justice of the peace for the District of Columbia under the Adams Administration, but his commission had not been delivered to him at the time of Jefferson's accession to presidential office. The Republican party, evidently in a frenzy of "retaliation" in their dispute with the Federalists over past offenses real or imagined, wanted to see that the commission was never delivered, without which Marbury could not be seated as a federal judge. The incoming Republican Secretary of State, James Madison, refused to deliver it.
So Marbury went straight to the Supreme Court, invoking the "original jurisdiction" language of Article III, Section 2:
In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction.Marbury petitioned the Court to issue a writ of mandamus, compelling Madison to deliver his already signed-and-sealed commission.
Herbert A. Johnson, author of the article on Marbury v. Madison in The Oxford Companion to the Supreme Court of the United States (1992 edition), explains what happened next:
In his opinion for the Court, Marshall held that Marbury was entitled to his commission and that Madison had withheld it from him wrongfully. Mandamus was the appropriate remedy at common law, but the question presented was whether it was available under Article III's grant of original jurisdiction to the Supreme Court. To decide the question, Marshall was required to compare the text of Article III with section 13 of the Judiciary Act of 1789, by which Congress authorized the mandamus writ. Finding that the statute conflicted with the Federal Constitution, Marshall considered it "the essence of judicial duty" ... to follow the Constitution. He concluded that "the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.... [boldface added for emphasis]Chief Justice Marshall was thus the first to articulate and validate the principle of judicial review at the federal level. At the same time, his opinion
...conceded that the federal government has only the limited authority conferred upon it by the terms of the Constitution; all other political power and sovereignty is reserved either to the states or to the people by the Tenth Amendment. Thus concepts of limited government most vigorously circumscribed the powers of the federal government at least before the Civil War.... [more bolds added][Since the Civil War, maybe not so much....]
However, as Johnson points out, "Chief Justice Marshall had always been careful to defer to the political branches — Congress and the president — when important matters of domestic and foreign policy were involved."
Indeed, the Constitution itself appears NOT to regard the Article III judiciary as a branch with a political role at all. How else to explain the fact that SCOTUS justices, and federal judges generally, enjoy lifetime appointment to office, subject only to "good behavior?"
But tell that to Justice Kennedy!!!
Dear Hostage, you wrote: "There is no check on Supreme Court Justices in reading what they will into the Constitution." So it seems. We despair at the lack of "push-back" against a runaway Court.
Actually, Congress itself has the powers to push back — but doesn't seem to have the appetite to use them. The first is the power of Impeachment. (Politically very messy and difficult). The second is its Article III, Section 2 power:
...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.Needless to say, I haven't seen any Congressional "exceptionalizing" or "regulating" of SCOTUS in recent times. It would be difficult to repeal their past mischief; but it seems to me Congress can stop their future mischief — by limiting SCOTUS' appellate jurisdiction.
Must stop there for now. You raise another extremely important issue in your last, dear Hostage: the Article V Convention of the States, for the proposal of amendments to the Constitution that can structurally restore the original balance of powers, as envisioned by the Framers, as between the federal government and the sovereign states and the people thereof.
I'm all in with you on that. Hopefully, we will speak of this another time, soon.
Thank you ever so much, dear Hostage, for your outstanding essay/post!
In regard to revisiting Marbury v. Madison, I shocked some Freeper last week when he asked me whether or not I thought we should revisit that case and I responded, YES.
Marbury v. Madison was a UNANIMOUS decision by the Supreme Court. Had it not been UNANIMOUS, I suspect that Congress would have pushed back immediately and we would have had a constitutional crisis on our hands.
Congress has power to control the courts including the Supreme Court. Congress can determine how many members should be on the court and cases in which they have original and even appellate jurisdiction. So there is no need for a Constitutional Amendment to reign in the abuse of Power by the Supreme Court. All we need is a bunch of Congressmen and a President who are willing to go to battle with the court when it clearly exceeds its authority such as we have seen in Roe v. Wade and Obergefell.
I would propose first of all that when there is a challenge to the constitutionality of a State Law, that no lower court can have any jurisdiction to hear the case or the appeal. That ONLY the Supreme Court can hear it.
Secondly I would limit the jurisdiction of the court in accordance with the Standard Set by Marbury v. Madison. All criminal trials in this country require a unanimous verdict from the trial court. Anything less than a unanimous verdict results in a mistrial and the defendant is either tried again or released.
I would propose that Congress use its powers to limit the jurisdiction of the Supreme Court in regard to allowing it to make case law overturning any State or Federal law by declaring it unconstitutional. They could make that a much harder burden by requiring that in order for the Supreme Court to issue a valid rescission of any State or Federal Law, that the Supreme Court’s opinion must be Unanimous. That would eliminate all these 5-4 decisions that change the entire future of our civilization.
Further they could limit the scope of any Supreme Court decision on the Constitutionality of a State Law by limiting the effect of the Court’s holding only to the State which was part of the proceeding before it.
Congress could also pass a law that in the event that there is not a unanimous decision on the constitutionality of a law, that Congress would have the power to ratify any decision of the Supreme Court which resulted in a majority other than unanimous. This would eliminate entirely the idea that the Supreme Court has the final say. The PEOPLE should have the final say and in a republic, the people are represented by their elected officials, not some appointed oligarchs.
The Supreme Court might attempt to rule such a law unconstitutional, but then in order to do that, they would have to reach a unanimous verdict.
But there are ways to revisit Marbury and there are certainly legal ways for congress to reign in the court. Making their job EXTREMELY difficult will obviously reign them in quite a bit.
These are powers that Congress has but the question is can we find enough congressmen with the courage to do the right thing.
Right now I don’t see that we could get more than a handful who are willing to challenge the current legal zeitgeist.
“. . . I observe that the case of Marbury v. Madison has been cited, and I think it material to stop at the threshold the citing that case as authority, and to have it denied to be law. 1. Because the judges, in the outset, disclaimed all cognizance of the case, although they then went on to say what would have been their opinion, had they had cognizance of it. This, then, was confessedly an extrajudicial opinion, and, as such, of no authority. 2. Because, had it been judicially pronounced, it would have been against law; for to a commission, a deed, a bond, delivery is essential to give validity. Until, therefore, the commission is delivered out of the hands of the executive and his agents, it is not his deed. He may withhold or cancel it at pleasure, as he might his private deed in the same situation. The Constitution intended that the three great branches of the government should be co-ordinate, and independent of each other, As to acts, therefore, which are to be done by either, it has given no control to another branch. A judge, I presume, cannot sit on a bench without a commission, or a record of a commission; and the Constitution having given to the judiciary branch no means of compelling the executive either to deliver a commission, or to make a record of it, shows it did not intend to give the judiciary that control over the executive, but that it should remain in the power of the latter to do it or not.
“Where different branches have to act in their respective lines, finally and without appeal, under any law, they may give to it different and opposite constructions. Thus, in the case of William Smith, the House of Representatives determined he was a citizen; and in the case of William Duane, (precisely the same in every material circumstance,) the judges determined he was no citizen. In the cases of Callendar and others, the judges determined the sedition act was valid under the Constitution, and exercised their regular powers of sentencing them to fine and imprisonment. But the executive determined that the sedition act was a nullity under the Constitution, and exercised his regular power of prohibiting the execution of the sentence, or rather of executing the real law, which protected the acts of the defendants. From these different constructions of the same act by different branches, less mischief arises than from giving to any one of them a control over the others. The executive and Senate act on the construction, that until delivery from the executive department, a commission is in their possession, and within their rightful power; and in cases of commissions not revocable at will, where, after the Senate's approbation and the President's signing and sealing, new information of the unfitness of the person has come to hand before the delivery of the commission, new nominations have been made and approved, and new commissions have issued.
“On this construction I have hitherto acted; on this I shall ever act, and maintain it with the powers of the government, against any control which may be attempted by the judges, in subversion of the independence of the executive and Senate within their peculiar department. I presume, therefore, that in a case where our decision is by the Constitution the supreme one, and that which can be carried into effect, it is the constitutionally authoritative one, and that that by the judges was coram non judice, and unauthoritative, because it cannot be carried into effect.
“I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, and denounced as not law; and I think the present a fortunate one, because it occupies such a place in the public attention. I should be glad, therefore, if, in noticing that case, you could take occasion to express the determination of the executive, that the doctrines of that case were given extrajudicially and against law, and that their reverse will be the rule of action with the executive. If this opinion should not be your own, I would wish it to be expressed merely as that of the executive. If it is your own also, you would of course give to the arguments such a development as a case, incidental only, might render proper . . .
. . . . . Jefferson, letter to George Hay, The Writings of Thomas Jefferson, June 2, 1807 ME 11-213
Thanks, betty, for calling me to this important conversation.