Paulsen, Michael Stokes, Constitutional Commentary
Is it possible that everything in Marbury v. Madison--except for the theorem of judicial review--is wrong? Surely, in the colorful, confident words of Chief Justice Marshall in Marbury, such a proposition "is too extravagant to be maintained." (1) Such an assertion about the foundational case of American constitutional law would be "an absurdity too gross to be insisted on." (2)
But I insist: Just about everything in Marbury is wrong, including the holding. (3)
First, a thumbnail sketch of what the case holds and what the case asserts (in dictum): On application of William Marbury, the Supreme Court, acting (apparently) in original jurisdiction, issued an order to Secretary of State James Madison to show cause why a writ of mandamus should not be entered against him directing him to provide Marbury with his commission as a justice of the peace for the District of Columbia. Madison ignored the show cause order, the case was argued before the Court, and a year and a haft later (following various other interesting events involving the Republican Congress's actions with respect to the federal judiciary) (4) the Court made several distinct pronouncements. First, Mr. Marbury was entitled to his commission because his appointment had been, following last-minute Senate confirmation, signed by President John Adams and sealed by the Secretary of State for the outgoing Adams administration--John Marshall. That made the appointment complete, notwithstanding Marshall's failure to deliver it before the administration of President Thomas Jefferson took over. Consequently, Madison, Jefferson's cabinet officer, had a duty to deliver it. (5)
Second, the Court held, a writ of mandamus directed to Secretary Madison was an appropriate remedy. The courts may issue mandatory orders to executive branch officers, where there exists a legal duty that such officers are (in the judgment of the Court) violating. Of course, the Court would never pretend to tell the President or his officers how to perform their political duties--the Court should not decide such political questions--but where the law imposes a nondiscretionary ministerial duty on an executive branch officer, the Courts can order that officer to do his duty. (6)
The third question gave rise to the holding for which Marbury is justifiably celebrated--the theorem of judicial review, deduced from the structural and textual premises of constitutional supremacy. (7) That question was whether section 13 of the Judiciary Act of 1789 legitimately conferred original jurisdiction on the Supreme Court to issue the writ of mandamus. The Court construed section 13 as authorizing such action by the Court, but concluded that this enlarged the original jurisdiction of the Court in violation of the Original Jurisdiction Clause of Article III of the Constitution. (8) Finally--here comes the proposition of judicial review--the Court held that it could not properly give effect to an unconstitutional statute of the legislature. (9) Thus, the Court lacked proper jurisdiction and could not grant Marbury the requested writ of mandamus.
How many things are probably wrong with this picture? At least six, by my count.
1. For openers, why should William Marbury's appointment (or anyone else's) be considered complete when it has been signed and sealed, but not delivered? If the President, through his subordinates, has not bestowed the commission on an officer of the United States--has not given it to him--has he really been commissioned as an officer of the United States? Does he really hold the office if he doesn't hold the "deed" denoting him the officeholder? Chief Justice Marshall's opinion on this score has always struck me as dubious, and the best evidence of the "mischief" theory of the opinion. If an appointment is complete upon signing by the President (for the life of me I cannot figure out what possible constitutional significance affixing the seal of the United States might have), then delivery is utterly immaterial. …