28
With a Republican majority elected to both houses of Congress in 1800, Marshall realized that Jefferson and his Republicans could denude the Supreme Court of authority and that he, as chief justice, could be impeached and removed from office. Marshall understood that, in the Marbury case, if he ordered Secretary of State Madison to deliver Marbury’s commission to office, Jefferson would order Madison to ignore the Supreme Court’s writ, and the Court’s authority would be seriously weakened. 29 Marshall was also concerned that he not be seen as protecting the interests of Federalist jurists like Marbury, who had assumed his position as a justice of the peace and had been hearing cases and issuing judgments for a year. 30
Bearing all this in mind, Marshall’s decision in Marbury —while upsetting the Constitution’s balance of power and the relationship between the federal government and the states—was a master political stroke. Marshall stated that Marbury, consistent with legal doctrine at the time, had something akin to a property right to the office to which he had been nominated and confirmed. Marshall also said that the federal judiciary should be able to issue an order directing the appointment of Marbury, but because the Constitution did not enumerate such an original right for the Supreme Court, the Court was powerless to do so. 31
Marshall went well beyond the specific issues in the case. He said that the Court had a responsibility to set aside acts of Congress that violate principles enumerated in the Constitution:
Between these alternatives there is no middle ground, the constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. 32
The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. 33
Marshall’s Federalist Party had lost the presidency and Congress, but Marshall was determined to fight back. And so the doctrine of judicial review was born. Yes, the Constitution is indeed the supreme law of the land. But now the Court, by its own fiat, would decide what is or is not constitutional. The Constitution’s structure, including the balance of power between the three branches, was now broken.
Although Jefferson is claimed by modern Democrats as the father of their political party, he was a leading opponent of judicial activism. After Marbury , Jefferson became an even more vocal critic of what he viewed as the overreaching of the judiciary under Marshall’s leadership.
To Abigail Adams, John Adams’s wife, Jefferson wrote a year after Marbury : “The Constitution…meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” 34
Jefferson’s concern about judicial power grew stronger as he passed into old age. From Monticello,
With a Republican majority elected to both houses of Congress in 1800, Marshall realized that Jefferson and his Republicans could denude the Supreme Court of authority and that he, as chief justice, could be impeached and removed from office. Marshall understood that, in the Marbury case, if he ordered Secretary of State Madison to deliver Marbury’s commission to office, Jefferson would order Madison to ignore the Supreme Court’s writ, and the Court’s authority would be seriously weakened. 29 Marshall was also concerned that he not be seen as protecting the interests of Federalist jurists like Marbury, who had assumed his position as a justice of the peace and had been hearing cases and issuing judgments for a year. 30
Bearing all this in mind, Marshall’s decision in Marbury —while upsetting the Constitution’s balance of power and the relationship between the federal government and the states—was a master political stroke. Marshall stated that Marbury, consistent with legal doctrine at the time, had something akin to a property right to the office to which he had been nominated and confirmed. Marshall also said that the federal judiciary should be able to issue an order directing the appointment of Marbury, but because the Constitution did not enumerate such an original right for the Supreme Court, the Court was powerless to do so. 31
Marshall went well beyond the specific issues in the case. He said that the Court had a responsibility to set aside acts of Congress that violate principles enumerated in the Constitution:
Between these alternatives there is no middle ground, the constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. 32
The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. 33
Marshall’s Federalist Party had lost the presidency and Congress, but Marshall was determined to fight back. And so the doctrine of judicial review was born. Yes, the Constitution is indeed the supreme law of the land. But now the Court, by its own fiat, would decide what is or is not constitutional. The Constitution’s structure, including the balance of power between the three branches, was now broken.
Although Jefferson is claimed by modern Democrats as the father of their political party, he was a leading opponent of judicial activism. After Marbury , Jefferson became an even more vocal critic of what he viewed as the overreaching of the judiciary under Marshall’s leadership.
To Abigail Adams, John Adams’s wife, Jefferson wrote a year after Marbury : “The Constitution…meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” 34
Jefferson’s concern about judicial power grew stronger as he passed into old age. From Monticello,
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