Posted by
flagwaver on Tuesday, April 13, 2010 9:32:25 AM
Marbury v. Madison is one of the decisions by the Supreme Court that has at times given us conservatives a touch of heartburn. And I am not leaving myself out of that equation, because for a long time it bothered me too. One of the finest papers I wrote in my political science courses was one that urged the Congress to take back its constitutional powers and put some limits on the Supreme Court, as the Constitution allows it to do. In fact, I have made similar arguments at this very blog (
here and
here,), and have not necessarily been kind to the 9 wise folk in DC. And I ended my paper with a blistering account of all that was wrong with the
Marbury decision and how unconstitutional it was; why, the SCOTUS had effectively usurped power from the other branches, and that was W-R-O-N-G!!!!
But as I have gotten older, and having had to actually study the case and the ruling, I have had to amend my earlier positon. Hell, I have actually changed my position because I am now convinced that I was wrong. Let me give you a quick brief of the case, and then I'll explain.
William Marbury and others were given appointments at the end of the term of President John Adams to be justices of the peace for the District of Columbia. The positions earned the required Senate confirmations, the commissions were signed by President Adams, and delivered to his Secretary of State John Marshall. Marshall did not deliver the commissions before leaving office, and President Thomas Jefferson ordered his Secretary of State, James Madison not to deliver them at all. Marbury and his party sued the President and Sec. State in the SCOTUS for a writ of madamaus, requiring the new administration to honor the commissions. The questions that the Court had to consider were whether Marbury, et al had any legal remedy, if the incoming administration was allowed to refuse the commissions, and whether the Court was able to issue the writ to Marbury, et al. On the first two accounts the court decided that Marbury's only legal remedy was the writ of mandamus and that the Jefferson administration could not deny the men their lawfully granted commissions.
It is on the third question where history books get sketchy and the case gets tricky; it is also the point that convinced me that my long held anti-judicial review ideas were wrong.
The Court held that while the writ was Marbury's only legal remedy, that they were not in a position to grant it. What history books and political science texts usually ignore is that the Congress had passed a statute that allowed the Court to issue writs of mandamus when it was the court of original jurisdiction. So according to the statute, the Court had every right to issue the writ. However, the Court looked at the situation and decided that the statute was unconstituional, in that it gave the Court powers beyond those given to it by the Constitution. The Constitution allowed for the Court to issue writs of mandamus, but only in its role as an appellate court; to issue the writ to Marbury in compliance with the statute would have put the Court directly at odds with the limits set out by the Constitution.
The Court, led by John Marshall (who should have recused himself, as he had a hellacious conflict of interest) decided that the statute passed by Congress was unconstitutional, which was (as we all know) the first time that the Court issued such a ruling. And as much as I have railed against it in the past, the ruling was right. I hate being wrong, but in this instance I deserve to eat a bit of Southern-fired crow.
You see, what the Court did in that ruling was actually to place the proper limits on the powers of the branches of government. By refusing to abide by that statute, and by telling Congress that they had no right to pass such a statute, and by forcing the administration to honor the commissions the Court reinforced the framework the drafters of the Constitution put in place. The executive branch was not allowed to ignore the vested rights of those who had been legally appointed to government positions, the legislative could not pass laws that were at direct odds with the plain words of the Constitution, and the Court could not use an illegal statute to advance their own powers. The Marbury decisions showed exactly what the checks and balances in our system were supposed to look like; no one branch greater than the others...and nothing greater than the Constitution. To paraphrase Marshall in his ruling, the Constitution is the supreme law of the land and no mere Act of Congress or statute can displace it. Because if we allow that, then the Constitution has no meaning; it is just a worthless collection of empty words.
So while I still chafe at the way the federal courts apply the concept of judicial review, and I still bridle at the way the courts have become just another powerful political tool used by both sides to advance their agendas, I am forced to admit that the decision made made by Marshall and company in 1803 was the right one. Their decision has caused us some headaches at times, but without it things colud be much worse. They balanced the three way scale with that decision, and that is something we conservatives should be ultimately pleased with.