From: wdstarr@athena.mit.edu (William December Starr)
Subject: A Marbury v Madison primer
Organization: Northeastern Law, Class of '93
Date: Fri, 16 Oct 1992 23:22:52 GMT


Since there's been a lot of discussion about this case recently, I
thought I'd just toss in a brief overview of its facts and history,
starting with a little bit lifted from my old Con Law casebook, Stone,
Seidman, Sunstein & Tushnet's "Constitutional Law" (First ed., 1986,
Little, Brown & Co.), pp. 25-26:

   "The _Marbury_ case was decided against a complex background and
was in some respects the culmination of a lengthy political battle.
The Federalist President, John Adams, had been defeated by the
Republican candidate, Thomas Jefferson, who was to take office on
March 4, 1801.  The Federalist Congress responded by, among other
things, attempting to obtain control of the federal judiciary.  On
February 16, 1801, the Congress enacted the Circuit Court Act,
creating sixteen new circuit judges and eliminating the circuit-riding
duties of the Supreme Court.  Congress also decreased the size of the
Supreme Court in order to deny incoming President Jefferson the power
to appoint a successor to Justice Cushing.  Two weeks later Congress
enacted another statute creating forty-two positions for justices of
the peace in the District of Columbia.  President Adams nominated the
authorized judges, who were confirmed on March 2 and 3, just one day
before President Jefferson was to assume office.

   "At this point, John Marshall, then Secretary of State under
President Adams -- who had appointed Marbury and the other petitioners
in the _Marbury_ case -- became involved in the circumstances that
gave rise to the case.  Although Marshall took his oath of office as
Chief Justice on February 4, 1801, he continued to serve as Secretary
of State at least until March 3 of that year.  President Adams and
Acting Secretary of State Marshall had signed the commissions of the
petitioners in the _Marbury_ case by March 3, but the commissions had
not been delivered by the time Adams and Marshall left the executive
branch.  Adams' successor, Thomas Jefferson, thereafter refused to
deliver the commissions, claiming that they were nullities.  (Should
Marshall have disqualified himself from _Marbury?)

   "In the next year -- before _Marbury_ was decided -- the Circuit
Court Act was repealed by the Republican Congress; the statute
creating the justices of the peace was left intact.  But Congress also
abolished the June and December terms of the Court, leaving the Court
adjourned from December 1801 until February 1803 -- and thus
abolishing the 1802 term.  The reason for Congress' Actions was to
avoid a constitutional challenge to the repeal of the Circuit Court
act.

   "A footnote: Six days after _Marbury_ was decided, the Court upheld
the repeal.  _Stuart v. Laird_, 5 U.S. (1 Cranch 299) (1803)."

A few additional notes: The way that the failed delivery of the
commissions occurred was that Secretary of State Marshall dumped the
whole bundle of them on the current Postmaster General, who also
happened to be John Marshall's brother.  For reasons that I've never
learned (I'm not sure if anyone even knows), Postmaster General
Marshall didn't get all the commissions delivered by March 4, 1801,
and he then decided that the proper thing to do was to return the
undelivered ones to the office of the Secretary of State.  By this
time, however, the new Administration was in place and the Secretary
of State was James Madison.  Although it was President Jefferson who
gave the order that the commissions not be delivered, technically it
was Madison who performed the non-action and thus became the named
party in the suit.

Marbury sued in the Supreme Court for a writ of mandamus -- a court
order to a government official compelling him to perform a particular
duty of his office -- to be served upon Madison ordering him to
deliver the commissions to Marbury et al.  Marbury depended upon a
clause of the Federal Judiciary Act of 1789 which gave the Supreme
Court that power in cases of original jurisdiction.  (Definitions:
"Original Jurisdiction" == the case was originally brought in the
Supreme Court.  "Appellate Jurisdiction" == the case started out in a
lower court and eventually was appealed to the Supreme Court.  Every
Supreme Court case is one or the other.)

In its Marshall-written decision, the Supreme Court said:

(1) The commissions were valid, from the moment the President signed
and sealed them -- the fact that a different person now held the
office of President was irrelevant;

(2) Under the law which created the new circuit judges and justices of
the peace, the President -- regardless of whether or not he was the
same President who'd made the appointments -- did not possess the
power to revoke an appointment; and

(3) A writ of mandamus was a proper mechanism by which Marbury et al
could receive their commissions;

BUT

(4) Much as it would like to do so, the Court couldn't issue such a
writ because it lacked the constitutional power to do so.  Article III
of the Constitution, which created the federal judicial branch and the
Supreme Court, contained a specific and limited list of powers of the
Supreme Court in cases of original jurisdiction, and the power to
issue writs of mandamus wasn't on that list.  Marbury won all the
battles but lost the war because he made the mistake of bringing his
original suit in the Supreme Court rather than starting out elsewhere
and, if necessary, appealing it up to the Supreme Court.

It was that last part, of course -- the Court's act of ruling that the
relevant clause of the Federal Judiciary Act of 1789 was in conflict
with Article II of the Constitution and therefore null and void --
that carries all the historical significance of the case, for this was
the holding in which the Court formally claimed for itself the power
to examine acts of the other two governmental branches and to declare
those acts null and void if they didn't meet the requirement implied
by Article VI, paragraph 2 of the Constitution: "This Constitution,
and the Laws of the United States _which shall be made in Pursuance
thereof_... shall be the Supreme Law of the Land."  [Emphasis added.]

And the rest, as they say, is history...

-- William December Starr <wdstarr@athena.mit.edu>