The year is 1803, the time of what was, perhaps, America's first legal hack. The Hacker is Supreme Court Justice John Marshall. The ink on our constitution was barely dry, and each branch of government was still flexing its newfound powers to determine how our new government would work.
Since 1789, the Federalist Party controlled all three branches, and Federalist Presidents Washington and Adams have appointed, and Federalist legislatures ratified, the entire federal judiciaries. The election of 1800 saw a sea-change, with Republican party President Jefferson taking office, together with a Republican-controlled Congress.
The Setup. Alas for the Republicans, the judiciary remained completely controlled by Federalists, since federal judges hold their positions for life. The first Act of the Republicans was to repeal a last-minute act of congress that created certain judgeships, several of which President Adams had filled just prior to the end of his term.
Thus enters William Marbury, appointed and ratified to be a Justice of the Peace under an act recently repealed. Although appointed by the President and ratified by the Senate, the Federalists did not complete the paperwork to install Mr. Marbury, failing to deliver a "commission," the certificate of his lifetime service as judge.
Marbury asked the new Secretary of State to deliver the paperwork. Jefferson's Secretary of State, James Madison, simply refused. Marbury sued Madison, asking the Court to issue a "writ of mandamus," a legal order directing Secretary Madison to finish his paperwork.
The problem. Although the case was styled "Marbury v. Madison," the case was more properly thought of as "Marshall v. Jefferson." Thomas Jefferson truly placed Justice Marshall on the horns of a dilemma. If the Supreme Court issued a writ, the president would surely ignore it -- the Supreme Court would be truly exposed as the "weakest branch." On the other hand, if Justice Marshall did not order the President to give this man his commission, a man who was clearly appointed and ratified to serve as a justice of the peace, the Supreme Court would likewise be exposed as powerless.
The hack. The nation was watching to see what would happen. President Jefferson was rather enjoying the situation, but Justice Marshall found a hack that completely resolved our nation's earliest constitutional crisis.
And it was brilliant! Justice Marshall neither issued the futile writ, nor cowered under Jefferson's agression against the judiciary.
Instead of confronting Jefferson directly, Justice Marshall looked ever deeper into the case, and found that the Court could not proceed without first resolving an even more fundamental legal issue: the jurisdiction of the Supreme Court to issue a writ of mandamus. He found that the Supreme Court's mandamus jurisdiction depended on the Judiciary Act of 1789, which gave the Supreme Court the right to issue writs of mandamus in an appropriate case.
But Justice Marshall was ever mindfull of the Constitution, which provided in Article III that "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction."
In other words, Justice Marshall concluded, the Supreme Court's jurisdiction was limited in this case to serving as an appellate court, and thus, the Congress acted unconstitutionally when it tried to give the Supreme Court original jurisdiction over this case.
The result. And so, for the first time ever, the Supreme Court declared an act of Congress unconstitutional, that is, the act giving the Supreme Court jurisdiction to grant this writ. No, some lower court would have to do that first, and then the Supreme Court would review. The Supreme Court refused to issue the writ, but in doing so, held that the Supreme Court would be the arbiter of what is and what is not a constitutional act of Congress.
And thus, Constitutional Review was born. And now, the great Jiu-Jitsu of Justice Marshall turned Jefferson's catch-22 on its head. Jefferson had no power to make Marshall rule on the case, and thus had to accept the Supreme Court's declaration of a law of Congress was unconstitutional. In the Federalist Papers No. 78, Hamilton wrote that the judiciary was the weakest branch of government. Ironically, by quoting other portions of No. 78 in his opinion, Justice Marshall turned those words on its head, making it the strongest: the branch that can nullify the act of the other two with a word -- unconstitutional.
Was Constitutional Review was our nation's earliest legal hack? Perhaps. But certainly, it was among the most important.
Posted by Werdna at April 26, 2004 06:55 PM