What Are the Facts of Marbury V. Madison? (1)
Levinson, Sanford, Balkin, Jack M., Constitutional Commentary
One of the most familiar features of the first year class in constitutional law, or indeed, in any first year subject, is the ritual practice of asking young law students to state the facts of cases. Not surprisingly, one of the first cases that students often encounter (4) in their study of constitutional law is Marbury v. Madison, (5) and so it is no surprise that Marbury presents one of the first opportunities for many law students to state the facts of a case. (6)
This is both deeply appropriate and deeply ironic. It is appropriate because Marbury is not just any case. It is a veritable symbol of judicial independence and of commitment to the Rule of Law, the hallmarks, most lawyers believe, of the United States Constitution. Moreover, allowing first-year students to work through the procedural history of the case and to parse Marshall's complicated reading of both the Judiciary Act of 1789 and Article III of the U.S. Constitution is a professional rite of passage that allows students to feel that they are mastering important legal concepts and difficult legal texts in the way that "real" lawyers do.
Yet asking students to recite the facts of Marbury at the beginning of their legal careers is also deeply ironic. It is ironic because there is more than one way to state what happened in Marbury, and thus what constitute its "facts." Depending on what one thinks the facts of Marbury are, the case is either, on the one hand, a symbol of judicial independence and the separation of law from politics, or, on the other, a revealing case study in the inevitable influence of politics on judicial decisionmaking that demonstrates the inability of courts fully to separate law from politics even as they repeatedly attempt to disguise this fact in their own judicial rhetoric.
The "traditional" recitation of the facts of Marbury looks something like this: John Adams appointed William Marbury to be a Justice of the Peace in the District of Columbia, and his commission had been signed by the relevant federal official (in this instance, of course, John Marshall himself, acting in his capacity as Secretary of State in the outgoing Adams Administration). Nevertheless, the new Secretary of State, James Madison, refused to deliver the signed commission to Mr. Marbury. Marbury had therefore filed suit before the Supreme Court invoking its original jurisdiction and asking for a writ of mandamus ordering that Madison convey to him what was rightfully his, the commission that would entitle him to take the office to which he had been appointed by the President of the United States.
This accounting of the facts of Marbury is fully adequate if one draws the facts from the official reports of the case itself. Alas, it tells us nothing about why Marbury was a significant case in its own time. Perhaps more to the point, it does not enable us to understand why the legal arguments that Marshall offers in the case are so strained and peculiar.
If a student in a law school class had articulated the facts set out above, we might ask her why Madison was withholding the commission, whether he was acting out of simple pettiness, personal dislike of William Marbury, or some other reason. If the student had majored in American history before entering law school, she might give a very different answer to the question of what the facts of Marbury are, an answer that might look something like this:
The case arose out of a dispute between two political parties in the United States, the Federalists, led primarily by Alexander Hamilton (though John Adams in fact succeeded to the presidency as the Federalist candidate following Washington), and the Republicans, led by Thomas Jefferson, Aaron Burr and James Madison. This dispute was particularly important in forming the conditions of democracy in the young republic. The Framers of the 1787 Constitution did not think there would or should be political parties. They identified political parties with factions, which were dangerous to the health of democratic institutions. …