In Memoriam: William Marbury, November 7, 1762 – March 13, 1835

Colton Givens, KLJ Legal News Editor[1]

This past Saturday, November 7, marked the 253rd birthday of William Marbury, one of the most recognizable names in American legal history.  First-year law students, and hopefully most attorneys, know the basics of Marbury’s story.  Incumbent John Adams, a Federalist, was defeated by Democratic-Republican Thomas Jefferson in the hotly-contested presidential election of 1800.[2]  After the election, but before Jefferson took office, Congress passed the Judiciary Act of 1801, which amended the Judiciary Act of 1789.[3]  Among other things, the 1801 Act authorized the president to appoint federal justices of the peace.[4]  Adams, in a last-minute effort to obstruct the incoming administration, appointed forty-two justices of the peace on the eve of his departure from office.[5]  These appointees, including William Marbury, shared Adams’ Federalist leanings.

Although the appointments were quickly approved by the Senate, to become effective, the letter of appointment (the “commission”) had to be delivered to the prospective judges.  Adams’ Secretary of State, John Marshall, was charged with delivering the commissions, he was unable to accomplish delivery of all the commissions before Jefferson took office.  Jefferson ordered his Secretary of State to withhold the undelivered commissions, including Marbury’s.[6]  William Marbury brought suit against James Madison, Jefferson’s permanent Secretary of State, in the Supreme Court of the United States, pursuant to § 13 of the Judiciary Act of 1789, which authorized the court to issue writs of mandamus.[7]  Essentially, a writ of mandamus is a court order that directs a lower court or a government official to do something they are required to do pursuant to their official duties.[8]

The rest of Marbury’s story is familiar: writing for a unanimous Court, John Marshall, who by this time had assumed the role of Chief Justice, held that although Marbury had a right to his commission, and that the law provided him a remedy, the Supreme Court had no jurisdiction to hear his petition for a writ of mandamus.[9]  According to Marshall, Article III of the U.S. Constitution set in stone the original jurisdiction of the Supreme Court; because Article III did not, by its terms, authorize the Court to issue original writs of mandamus, Congress could not authorize it to do so in the 1789 Act.[10]  In reaching this decision, Marshall formally enshrined the principle of judicial review, through which the judiciary can evaluate the constitutionality of legislative actions: “It is emphatically the province and duty of the Judicial Department to say what the law is.”[11]

As a bedrock case in not just constitutional law, but all of American jurisprudence, the Court’s decision in Marbury v. Madison has been analyzed ad nauseam for more than two centuries.  However, one interesting aspect of Marshall’s opinion has escaped mainstream attention.  In quoting the Constitutional provision that he claimed conflicted with the 1789 Act, Marshall omitted a significant portion of Article III.  The Constitution states:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which the State shall be a 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.[12]

In the relevant portion of the Marbury opinion, however, Marshall wrote:

In the distribution of this power it is declared that “the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which the state shall be a party.  In all other cases, the supreme court shall have appellate jurisdiction.”[13]

When the two above quotations are compared, it becomes clear that Marshall’s opinion differs significantly from the text of the original document.  Marshall reverses the order of the clauses in the first sentence, omits the words “before mentioned” in the second sentence, and omits entirely the Exceptions Clause.  But why these differences?

Perhaps the clause reversal in the first sentence can be overlooked, since it is unclear what version of the Constitution Marshall was using when he wrote the Marbury opinion.  But omitting the Exceptions Clause can hardly be seen as a simple oversight, especially for a jurist of Marshall’s caliber.  And it’s not as if the Clause wasn’t relevant to the case at hand; indeed, if the Exceptions Clause was interpreted to allow Congress to alter the Court’s original jurisdiction, Marbury would have been entitled to a writ of mandamus, and the delivery of his commission.

At least one political scientist believes that this intentional omission was the key to Marshall’s dual underlying goals in crafting the Marbury opinion: (1) avoiding the political controversy that would result if Secretary of State Madison was ordered to deliver the commissions, but refused; and (2) establishing the judiciary as a co-equal branch of government, possessing the power of constitutional review.[14]  Dr. Winfield H. Rose argues that “[t]he misquotation is the single most important part of the opinion in that it is the cornerstone upon which everything else rests.”[15]  Premised upon the conclusion that the 1789 Act was in fact constitutional, Rose states that “Marshall’s arguments . . . were clever contrivances to extricate himself and the Court from the political predicament in which they found themselves, on the one hand, and to establish the . . . Supreme Court as a truly equal third branch of the government, on the other.”[16]  And as Rose correctly recognizes, by denying Marbury his commission, while simultaneously establishing the principal of judicial review, he accomplished both goals.[17]

Rose is not the first to point out that Marshall’s construction of Article III, Section 2 is not entirely sound,[18] but he is the first to give significant treatment to the misquotation.  In response, other scholars have asserted that Marshall’s misquote is at most trivial.[19]  Indeed, Marshall does address the Exceptions Clause in passing, saying that it is “mere surplusage” if the Clause is interpreted to allow Congress to have power over the Court’s original jurisdiction,[20] and also saying that the Exceptions Clause “is no restriction; unless the words be deemed exclusive of original jurisdiction.”[21]  But just two paragraphs later, Marshall writes, “It cannot be presumed that any clause in the constitution is intended to be without effect . . . .”[22]  The construction of the Exceptions Clause is, or rather should have been, the key to the entire decision.  By focusing his attention elsewhere, Marshall was negligent at the very least, and at the most, intellectually dishonest.

So which side of the debate is correct?  As usual, the truth is most likely somewhere in the middle.  The argument that the Exceptions Clause allows Congress to alter the original jurisdiction of the Supreme Court is not as sound as Rose suggests.  Taken as a whole, Article III, § 2 is equally susceptible to the reading that Congress is permitted to alter the Court’s appellate jurisdiction, but not its original jurisdiction.  Marshall’s true “sleight of hand” was not burying a winning argument, but rather failing to thoroughly address a necessary question of constitutional interpretation.[23]

Marbury v. Madison has stood, virtually unchallenged, as a fundamental precedent of American jurisprudence for more than two centuries.  The principles it established, including the principle of judicial review, have become so firmly entrenched that the decision could never be fully overturned.  Moreover, many would agree that Marbury paved the way for many judicial triumphs: if judicial review did not exist, the advances in individual liberties spearheaded by the Supreme Court would have to have come from elsewhere.  However, perhaps it is time for Marbury to be viewed as what it really was at the time of its publication: an expertly crafted political power grab, and little more.

[1] J.D. expected May 2016.

[2] Winfield H. Rose, Marbury v. Madison: How John Marshall Changed History by Misquoting the Constitution, 36 PS: Pol. Sci. and Politics 209, 209 (2003).  Indeed, the election was actually a tie in the Electoral College between Jefferson and Aaron Burr, which the House of Representatives decided in Jefferson’s favor.

[3] Id.

[4] See 2 Stat. 89 (1801).

[5] Rose, supra note 2, at 209.

[6] Id. at 210.

[7] 1 Stat. 73 § 13 (1789).

[8] Mandamus, Black’s Law Dictionary (10th ed. 2014).

[9] Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803).

[10] Id. at 174-175.

[11] Id. at 177.

[12] U.S. Const. Art. III, § 2, cl. 2 (capitalization in original).

[13] Marbury, 5 U.S. at 173.

[14] See Rose, supra note 2, at 211.

[15] Id.

[16] Id.

[17] Id.

[18] Id. at 211-12.

[19] See Jeffrey H. Anderson, John Marshall’s Opinion in Marbury v. Madison Does Not Rely on a Misquoting of the Constitution: A Response to Rose, 37 Pol. Sci. and Politics 199 (2004).

[20] Marbury v. Madison, 5 U.S. 137, 174, 1 Cranch 137, 174 (1803).

[21] Id. at 175.

[22] Id. at 174.

[23] Rose, supra note 2, at 211.