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....
And the Court delivered of itself the additional opinion that it had the sole discretion in all cases respecting the constitutionality of all laws: an issue not laid before the Court in this instance, therefore “extrajudicial” and not, in Jefferson’s opinion, an opinion to be properly decided at that time.