Part One: Marbury and Subsequent Cases
The Marbury opinion is fascinating on several levels. Let’s look first at the opinion itself. After having concluded (“held”) in the first two parts of the opinion (1) that William Marbury does indeed have a right to his commission and (2) that he has a right to a legal remedy if one is actually available to him, Marshall turns in the third part to what that legal remedy might be in the United States and whether the Supreme Court can provide it to Marbury.
He indicates that a writ of mandamus—a court order directing a person to perform a particular act or fulfill a legal obligation—is the appropriate legal remedy. Mandamus is exactly what Marbury asked the Court to order when he brought his case. Marshall then asks (at page 171) “whether it can issue from this court?” This, finally, is the crucial question of the whole opinion. Marshall indicates that Section 13 of the Judiciary Act of 1789 authorizes the Supreme Court to order mandamus in cases under the Supreme Court’s original jurisdiction, which again is what took place here. Marbury v. Madison was not an appeal: the action for mandamus was begun in the Supreme Court under its original or trial court jurisdiction.
But, Marshall said, Article III of the Constitution carefully lays out the Supreme Court’s original jurisdiction: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Marshall construed the first sentence of this section narrowly to limit the Court’s original jurisdiction exclusively to cases involving diplomats and cases of one state versus another. Some knowledgeable scholars say this interpretation was unreasonably narrow. (Keep in mind that the senators of the first Congress who drafted the first Judiciary Act included a number of delegates to the Philadelphia Convention who reasonably should have known the intention of the convention.) Nevertheless, his narrow construction provided the basis for his conclusion: Congress went beyond the bounds of its constitutional authority when it added to the Supreme Court’s Article III Section 2 original jurisdiction in Section 13 of the Judiciary Act, and therefore Section 13 of the Act is unconstitutional.
As we saw in the readings for the first class, this was not the first time that the Court had considered the constitutionality of statute. If we read the Hayburn and Yale Todd cases closely, we can say that Marbury was not even the first time that the Court had declared a federal statute unconstitutional. Marshall’s rationale for judicial review is neither unprecedented nor particularly creative. His reasoning relies on the idea that the constitution reflects the will of the people, who are the supreme source of political and legal authority, while statutes or congressional acts reflect the will of a creature of the popular will and must therefore be subordinate to the will of the people as it is articulated in the Constitution. In case of conflict, the will of the people—the Constitution—trumps the will of the people’s creation or agent—Congress. Both Alexander Hamilton in Federalist #78 and Justice Paterson in VanHorne’s Lessee v. Dorrance already sketched out this rationale.
What is significant about Marshall’s argument is his assertion (1) that the entire Constitution is essentially a legal document—we might say a justiciable document—a law in most regards like any other law that state and federal judges must work with, different only in its supreme authority, and (2) that it is the proper function of the courts—and we might say here “exclusively the courts”—to interpret law and thus determine which laws are valid and which are void. Marshall sought to establish the power of the courts, then dominated by Federalists and nationalists, not the two other “co-equal” branches of government, then dominated by Jeffersonians, to provide the authoritative interpretations of the constitution.
Two more comments. First, almost all lawyers and legal scholars agree that Marshall’s opinion was written “the wrong way around” according to usual court practice: courts determine first whether they have the jurisdiction or authority to decide a case before they render an opinion on the issues in the case. Marshall determined jurisdiction last. This gave him an opportunity in the first two parts of the opinion to blast Jefferson and his new administration for failing to follow the law and the constitution. Second, by dismissing Marbury’s case on jurisdictional grounds, Madison and the Jeffersonians won the case! Thus, what could they complain about? It was well known that Marshall and Jefferson did not like each other personally and did not like each other’s politics. Marshall was thus able to establish a strong constitutional principle while depriving Jefferson of a political target to retaliate against. This irritated Jefferson no end, and established a Supreme Court tactic that has been used a number of times since Marbury v. Madison.
Establishing Federal Judicial Supremacy
Marbury was not the only rock in the foundation of federal judicial supremacy. The Marshall Court also faced a real challenge to its authority to oversee state court decisions in matters of federal law. In three cases coming to the Court from the Virginia courts, the Marshall Court addressed the challenge with a combination of legal bluntness and political shrewdness.
The first two cases are related. Fairfax’s Devisee v. Hunter’s Lessee and Martin v. Hunter’s Lessee both grew out of the extensive Virginia land holdings of Thomas Lord Fairfax. Fairfax was a Loyalist, and at his death in 1781 he left or “devised” his land to his English nephew, one Denny Martin, who then changed his name to Denny Fairfax. Because we were still at war with Britain, anti-British spirit was high in the states, and because Martin was English and thus an “alien enemy,” Virginia passed a series of laws to nullify Lord Fairfax’s devise and to confiscate all his land and the land of other alien enemies. In 1788 Virginia granted some of the confiscated land to one Hunter, who leased some of it to the party in the law suits. Hunter sued in 1791 in state court to eject or evict Martin, who was Fairfax’s devisee, from the land. In 1794, the Virginia courts ruled in favor of Martin, not Hunter. In 1794, the Jay Treaty between Great Britain and the United States, which reaffirmed the legal title of the original British owners to such lands, was ratified.
Thereafter the court case fell into limbo only to emerge sixteen years later before the highest court of Virginia, the Virginia Court of Appeals. This time, the Virginia court ruled for Hunter’s Lessee, and Fairfax’s other nephew and heir to Denny Martin Fairfax, Thomas Bryan Martin, who was always a citizen of Virginia, not an Englishman, took the case to the United States Supreme Court. In 1813, the Supreme Court, in a blunt opinion by Justice Story that some Virginians found offensive, reversed the Virginia Court of Appeals and ruled for Martin. (Chief Justice Marshall, as well as Justices Washington and Todd, did not participate. Marshall had earlier represented Martin in Virginia courts and had huge investments in the Fairfax lands.) The opinion was mostly a complicated discussion of Virginia property law, but Story also held that the portions of the Virginia state confiscation statutes that conflicted with the 1794 Jay Treaty must yield to the treaty, which was part of the supreme law of the land.
So far there was nothing new and exciting about the decision or the opinion. There had been rulings before that held national treaties superior to state laws. There had been more than 15 prior cases in which the Supreme Court considered the constitutionality of state laws, and in several of those cases the state laws had been invalidated. But this time was different. When the Supreme Court mandate to reverse its judgment was presented to the Virginia Court of Appeals, the Virginia court not only refused to obey it, but ruled that Section 25 of the 1789 Judiciary Act was unconstitutional! This section gave the Supreme Court appellate jurisdiction over state court cases that arose under the Constitution, federal statutes, or national treaties. Martin again appealed to the Supreme Court.
Justice Story now wrote one of his greatest opinions in the case of Martin v. Hunter’s Lessee, again reversing the Virginia court, but this time not on issues of property law but on the Virginia Court’s decision that the federal Judiciary Act provision was unconstitutional. Story’s opinion was masterful, and relied significantly on the idea that the federal government had, and must have, certain powers that are not expressed or enumerated in the written Constitution, but exist by necessary implication: they are implied powers. This concept was to be the basis of the case we will look at next class, McCulloch v. Maryland. The Supreme Court, to avoid another conflict with the Virginia Court of Appeals, sent its order or mandate directly to the Virginia county court this time, and Martin resumed ownership of his land.
The third case that established national judicial supremacy was the 1821 case of Cohens v. Virginia. In this case, the Cohen brothers trafficked in lottery tickets in violation of a Virginia statute. They argued that a federal statute permitted the buying and selling of the tickets and thus trumped the state criminal law. The Virginia courts disagreed and the Cohens were convicted. They appealed to the Supreme Court. Here, Chief Justice Marshall had the opportunity to exercise not only judicial authority but also the political shrewdness that he had shown in Marbury. His opinion reaffirmed the authority of the Supreme Court, under Section 25 of the Judiciary Act, to review state court decisions, but the Court then ruled in favor of Virginia, not the Cohens, and rejected their argument that the federal statute they relied on conflicted with and therefore invalidated the Virginia criminal statute. The decision had to be accepted by Virginia officials and judges. Like Madison and Jefferson in Marbury, the Virginians had won the case.
We will now take a look at a couple of Twentieth Century cases that reflect different attitudes of the Court toward judicial review: the relatively unknown 1947 case of Rescue Army v. Municipal Court and the famous civil rights case a decade later, Cooper v. Aaron (1958). The conservative attitude of the Court toward the practice of judicial review in Rescue Army should be contrasted to the Court’s attitude of its own inherent power in Cooper v. Aaron.
According to Justice Rutledge in Rescue Army, when should the Supreme Court decide a case on constitutional grounds? What factors does Rutledge adduce to support this judicially-created policy? In Cooper v. Aaron, what is the status of the Supreme Court’s interpretation of the Constitution? What reasoning does the Court use to reach this conclusion? Is this conclusion consistent with the Supremacy Clause of the Constitution (Art. VI, cl.2)?
©William S Miller