Hacking The Law

Marbury v. Madison: Our First Legal Hack?

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Thus enters William Marbury, appointed and ratified to be a Justice of the Peace under an act recently repealed.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.

On Hacking the Law

In my view, hacking is the means by which technique is transcended to art. The Internet Society defines the term thus:

hacker. A person who delights in having an intimate understanding of the internal workings of a system, computers and computer networks in particular. The term is often misused in a pejorative context, where "cracker" would be the correct term. See also: cracker.

See RFC1983. A hacker

enjoys exploring the details of . . . systems and how to stretch their capabilities [and is o]ne who enjoys the intellectual challenge of creatively overcoming or circumventing limitations.

See Eric Raymond's Jargon File. In his book, 1984 book, Hackers, Rolling Stone Technology Editor, Steven Levy attributed the origin of the term to members the Tech Model Railroad Club at MIT, which rejoiced in building complex and wonderful model railroad layouts by pushing the limits of simple and straightforward technologies, and ultimately merging them with (and into) the state of the art. Alas, the term has been largely co-opted over the years, and many harbor misconceptions when they hear the term today:

• Hacking is Beautiful, not Shoddy. The term "hack" is sometimes used pejoratively to refer to people who perform shoddy work. Not so with true hackers. Hacks, the result of true hacking, are often quite subtle and elegant -- quite the opposite of a "kludge." Like the chess grandmaster, the hacker finds a master play among myriad alternatives. The masterplay, once made, appears almost like an error at first glance. There is a genuine sense of "aha!" as one thinks deeper, and discovers that it is clearly and inevitably the winning move. It requires not only brilliant intuition, but solid and sound technical skill. The masterplay is not an accident, but the result of a comprehensive analysis and understanding of the system.
• Hacking is Not Evil . The term "hacker" has been largely co-opted to describe the conduct of individuals who engage in computer fraud and asuse, breaking into or compromising the security of computer systems not their own. Most technologists will understand the difference between "hacking" as defined in the RFC, and "cracking" as is the proper term for the latter, conduct. The two notions are wholly unrelated. Cracking is not necessarily hacking, but it can be. Crackers who routinely exploit existing programs and technology to break into a computer are not hacking -- such "script kiddies" are neither using nor pushing the state of the art, and are simply computer users performing evil and illegal acts. On the other hand, a few crackers, who have pushed the limits of a system to discover new ways to engage in computer fraud, may well be hacking in the strictest sense. Accordingly, there are good hackers and bad hackers, but all share a delight for having an intimate understanding of the internal workings of a system.

In short, Hacking is the art of studying a complex system and finding ways to make it do astonishing and new things, often but not always unintended by the creators of the system. Hacking, therefore, is wonderful and beautiful.

Hacking the law is no different from hacking a computer system. A law hacker delights in having an intimate understanding of the workings of the legal system, and enjoys exploring its details and enjoys the intellectual challenge of creatively overcoming and circumventing its limitations. Law hacking may be accomplished by lawyers, judges or even juries and legislatures. Few systems are as complex and deep as the rules governing the interactions of people in a society -- and the stakes at risk in the smooth and orderly operation of the system are tremendous. Accordingly, opportunities to hack the law abound and are of great importance.

I hope in the months to come to detail examples of law hacking, current and historical, and hopefully to use the notion to identify important patterns in jurisprudence and thereby improve the state of the art of the law.