“. . . 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.
Evidently, Thomas Jefferson had no use for the doctrine of judicial review, which Marbury v. Madison asserted for the first time on behalf of the Supreme Court. But Marbury v. Madison was not concerned with executive power at all — though this is what Jefferson seems to be objecting to here. I dunno, but this looks like a straw-man argument to me. It all seems a little disingenuous on his part, especially in light of the fact that he had reasons to be glad that the Court did not issue the writ of mandamus to Madison, compelling him to deliver Marbury's commission.
Marbury was a Federalist; therefore a political enemy of the Republicans, including Thomas Jefferson. Very late in his presidency, President Adams appointed a raft of partisan Federalist judges at the circuit court and lower court levels. The Republicans, among them Jefferson, feared that, The Federalist Party having lost in the polls, these judges would act in concert to frustrate Jefferson's legislative goals. So it seems that Jefferson, if anything, would have been glad that Marbury was denied delivery of his commission, without which he could not sit as justice of the peace for the District of Columbia.
Marbury petitioned the Court on the basis that it had original jurisdiction on mandamus cases. The Court found that it did not; under Article III, it had only appellate jurisdiction. Meaning it could take the case, if it had already been adjudicated in a lower court. The Judiciary Act of 1789, by which Congress authorized the mandamus writ by statute, had been interpreted to mean that the Supreme Court's Article III powers had been enhanced by a congressional act that vested original jurisdiction WRT writs of mandamus in the Supreme Court. Thus judicial review of a statute by the Court came into play. The Court found that, even though Marbury was entitled to his commission, and that it should have been delivered to him, the Court did not have any Article III power to issue the writ. If this had been an appellate case, the outcome would likely have been very different. The Court found, however, that it had no original jurisdiction in the matter.
This was actually a case where the Court pointed to a constitutional limitation on its own power. But in the process, it held the relevant sections of the Judiciary Act unconstitutional — because it did not comply with the plain language of Article III. Any conflict between the Constitution and statutory law must be resolved in favor of the Constitution. To Chief Justice John Marshall, that was precisely what judicial review was all about.
Alexander Hamilton, in Federalist No. 78, proposed that judicial review of congressional statutes is essential, because the federal government has only the limited authority conferred on it by the terms of the Constitution. All other political power and sovereignty is reserved to the states and the people. Thus judicial review was essential to ensuring that the liberties of the people were not infringed by passing congressional majorities. Chief Justice Marshall appears to have followed Hamilton's view.
Of course, a lot has changed since then. Certainly it cannot be said that today's Supreme Court ever limits its own power. Rather, the current Court seems ever intent on expanding them, into areas that can only be called legislative, not judicial. This is the kiss of death to a written constitution and, as we have repeatedly seen in recent times, the liberties of the people it upholds, defends, and protects.
Thank you so much, dear YHAOS, for these writings from the American Sphinx....