When reenacting or acting as a historical interpreter, its good to have a few historical dates and stories to share. This series will publish a few.

February 24, 1801            Marbury vs Madison

Politics in 1800 were contentious. Thomas Jefferson and his political party, the Democratic-Republicans, had soundly beaten John Adams, a Federalist, in the presidential election of 1800, however, there was a long period between the election and the inauguration of the new president. John Adams used this time to appoint Federalists to administrative and judicial positions, which would allow the Federalist Party m to retain some power.  A few last-minute appointees, however, were not served their commissions prior to Adams leaving office. After Thomas Jefferson’s inauguration, Jefferson instructed his Secretary of State, James Madison, to not serve the commissions. Not surprisingly, Jefferson wanted as few Federalist judges as possible.

William Marbury, a prominent financier and Federalist, sued James Madison in response to not being served his commission for justice of the peace for Washington, D.C. Marbury requested the U.S. Supreme Court issue a writ of mandamus to force Madison to deliver the commission. A writ of mandamus is a court order for a government official to fulfill their obligation under the law.

There were two political problems facing Chief Justice John Marshall, regardless of what outcome he reached:

  • Thomas Jefferson was almost certain to refuse to comply with a writ of mandamus issued by his main political rivals. If Jefferson ignored the Supreme Court, it would limit the Supreme Court’s authority as a co-equal branch of government.
  • Equally problematic for the justices, failing to issue the order could be interpreted as a sign of weakness, similarly leading to a delegation of authority to the executive branch while also being a further blow to the Federalist party.

Marshall framed the decision by answering these three questions:

  • Did Marbury have a right to the commission?
  • Was a writ of mandamus the proper remedy?
  • Did the Supreme Court have the right to issue such a mandamus?

Marshall, writing for a unanimous Supreme Court, held that Marbury did have a right to the commission, meaning that Jefferson was violating Marbury’s rights, and the law, by withholding it. Further, Marshall held that Marbury could properly sue in court for a mandamus. In doing this, Marshall was able to frame the Jefferson camp as not following the law. Put simply, the answer to the first two questions was yes.

The reason the Supreme Court sided with Madison and Jefferson, however, is that Marshall determined that the Supreme Court did not have the right to issue the mandamus. He determined this by finding that the law under which Marbury was seeking to have the mandamus issued, the Judiciary Act of 1789, violated Article III, Section 2 of the U.S. Constitution. Marshall held that the Judiciary Act exceeded the original jurisdiction given to the courts in the Constitution, and that the Constitution trumped a legislative act of Congress. Marshall went on to say:

If . . . the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.” Further, “a law repugnant to the constitution is void, and . . . courts, as well as other departments, are bound by that instrument.

Marshall, by this statement and decision, implicitly gave the Supreme Court the power to declare an act of Congress invalid. As he put it, “[i]t is emphatically the province and duty of the judicial department to say what the law is . . . If two laws conflict with each other, the courts must decide on the operation of each.

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Published by Michael Carver

My goal is to bring history alive through interactive portrayal of ordinary American life in the late 18th Century (1750—1799) My persona are: Journeyman Brewer; Cordwainer (leather tradesman but not cobbler), Statesman and Orator; Chandler (candle and soap maker); Gentleman Scientist; and, Soldier in either the British Regular Army, the Centennial Army, or one of the various Militia. Let me help you experience history 1st hand!

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