Academic journal article Constitutional Commentary

The Marbury Mystery: Why Did William Marbury Sue in the Supreme Court?

Academic journal article Constitutional Commentary

The Marbury Mystery: Why Did William Marbury Sue in the Supreme Court?

Article excerpt

In 1801, when William Marbury petitioned the Supreme Court to issue a writ of mandamus ordering Secretary of State James Madison to deliver his commission as justice of the peace, he initiated one of the most important cases in the Court's history. But why did Marbury choose the Supreme Court? Was there a lower federal court that could have granted the writ at the time? The short answer is "yes." Rather than making an unsuccessful attempt to invoke the original jurisdiction of the United States Supreme Court, I have learned that he could have brought his suit in the then newly-created Circuit Court of the District of Columbia. Did Marbury know of this possibility? Would the Circuit Court have granted the requested writ of mandamus? As this essay will show, the answer to both these questions is "probably yes." That being so, the intriguing--indeed, mysterious--questions surrounding Marbury's choice of forum warrant further examination.

First, a brief recap of the facts of Marbury v. Madison. (1) In the waning days of the Federalist Administration of President John Adams, the outgoing Federalist Congress enacted the "Act Concerning the District of Columbia," authorizing the president to appoint as many justices of the peace for D.C. as he thought "expedient." Each would serve for five-year terms. (2) President Adams nominated forty-two justices--twenty-three for Washington County on the Maryland side of the Potomac River and nineteen for Alexandria County on the Virginia side. (3) After the Senate confirmed and the President signed the commissions, it was the responsibility of the Secretary of State, John Marshall, to affix the Great Seal of the United States to the commissions and see to their delivery. The signing and sealing presented no problem, but time did not permit delivery of all forty-two commissions. Thomas Jefferson assumed the presidency on March 4, 1801. Appalled at Adams' last minute "court-packing," Jefferson ordered his Secretary of State to withhold the undelivered documents. (4) Four of those so deprived, William Marbury, Dennis Ramsay, William Harper, and Robert Townsend Hooe, (5) then sued in December 1801 in the United States Supreme Court, seeking a writ of mandamus ordering Secretary of State James Madison to deliver their commissions. (6)

In a landmark decision establishing the tenets of judicial review of both legislative and executive actions, Chief Justice John Marshall, (7) writing for a unanimous court, divided his analysis into three parts. First, he held that the petitioners were entitled to their commissions. Second, he concluded that the Secretary of State could be the subject of judicial process, including a writ of mandamus. Finally, he held that a writ of mandamus was the appropriate remedy for the plaintiffs. But, said Marshall, the Supreme Court could not constitutionally be given original jurisdiction to issue a writ of mandamus in this type of case. Because this case was not within one of the two areas of original jurisdiction specified by Article III of the Constitution, the Court could act only as an appellate court in this matter. (8) And because Section 13 of the Judiciary Act of 1789 (9) purportedly conferred on the Supreme Court original jurisdiction to issue writs of mandamus in this type of case, Section 13 was unconstitutional. Thereupon, the Court explained at length why it was justified in rendering ineffectual an Act of Congress that it found inconsistent with the Constitution. Finally, because it had no jurisdiction in this case, the Supreme Court denied the relief sought by Marbury and his colleagues. (10) This was a masterful opinion. Only by asking the questions in the order he used, with jurisdiction last, and by creatively finding a conflict between Section 13 of the Judiciary Act and Article III of the Constitution, (11) could Marshall assert the judicial power to review acts of both the legislative and the executive branches without ordering anyone to do anything--and thereby avoid the risk of defiance. …

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