Evening star. [volume] (Washington, D.C.) 1854-1972, 1958-02-02
BY DAVID KOONCE
star stan Writer


One Of the most widely-accepted
principles in our system of Gov
eminent, with its three co-equal
branches. has as its source not
constitutional sanction, but
sQuabble that occurred 155 years
ago between the Federalists and
Thomas Jefferson's Republicans.
Although the authority Of the
Supreme Court to nullify as I'M
constitutional an act of Congress
Cor Of a State legislature) is to-
day almost never challenged -
even in the proposals advanced
IN Congress to restrict the high
court - some impressive argu-
nnents were made against it in the
Republics early days.
The principle was first applied
by Chief Justice John Marshall
IN q case that suggests the great
Chief Justice was more interested
In saving his own political hide
than in bolstering the shaky
structure Of our Federal expert
ment. It involved the appoint
ment Of William Marbury to be
a justice of the peace Of the Dis
trict of Columbia.
John Adams, Federalist, had
made the appointment shortly
before turning over the Govern
ment to Thomas Jefferson. The
Senate had confirmed the ap-
pointment, along with other Fed
eralist appointments Adams had
made in the dying days of his
administration. But the j. P.
commission had not been delivered
10 Marbury. James Madison. the
Secretary Of State, refused to de-
liver it, so Marbury asked the
Supreme Court for a writ Of
mandamus to force him to do so.
MorshoiI Says No
Chief Justice Marshall, speak,
ing for the Court, said that Madi-
son had no right to withhold the
commission, but that the Supreme
Court could not, constitutionally,
issue the mandamus. His reason
ing: The Judiciary Act which
Congress passed in 1889 provided
for the issuing Of mandamus
writs by the Supreme Court when
such writs were presented directly
10 the court without having been
presented first to lower court.
But the Constitution In listing
the kinds of cases in which the
Supreme Court had this original
jurisdiction, did not include a
case involving mandamus. There
fore, according to Marshall, that
provision of the 1889 act, in con-
ferring such original jurisdiction
on the Supreme Court, was null
and void.
Although the ruling did not
grant the mandamus against jeff
erson's Secretary Of State, and
thus served the Presidents imme-
date purpose. that part Of Mar
shall's opinion which upset the
Judiciary Act incensed Jefferson.
He protested that, If the Supreme
Court could nullify an act Of
Congress, then Congress would
cease to be an independent branch.
There is some evidence that
Chief Justice Marshall feared i'm
parchment at the hands Of the
Republicans II he we're to grant
the mandamus on behalf Of the
Federalist's application. A few
months after the decision, before
the Juror had been claimed, Mar
shall, according to Beveridge's
biography. wrote Justice Chase
that he was willing to surrender
the courts authority to interpret
the Constitution in return for
security against impeachment.
Abandoned Eorlier View
Marshall, in establishing the
principle Of judicial review. di-
rectly contradicted an opinion he
had strongly expressed less than
seven years previously. AS a law
yer representing a litigant in a
case before the United States Cir
cult Court in Richmond in 1895,
the future Chief Justice stated:
1.-THE judicial authority can have
no right to question the validity
OF q law unless such jurisdiction
is expressly given in the Consti-
tuition"
The Constitution, Of course,
does not grant this right. The
Founding Fathers had debated the
question ct the Constitutional
Convention, but did not confer
This authority on the court. Mad