HISTORY'S CURRENTS
MARBURY V MADISON (1803)

During the administrations of George Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the federal bench, and under the terms of the Constitution, they held office for life during "good behavior." Thus, when the Republicans under Thomas Jefferson won the election of 1800 they found that while they controlled the presidency and Congress, the Federalists still dominated the judiciary. One of the first acts of the new administration was to repeal the Judiciary Act of 1800, which had created a number of new courts and judges. Although President Adams had attempted to fill the vacancies prior to the end of his term, including several "Midnight Judges" appointed just before he left office the day before Jefferson's inauguration. Several of these commissions had not been delivered, and one of the appointees, William Marbury, appointed to be the Justice of the District of Columbia, sued Secretary of State James Madison to force him to deliver his commission.

Supreme Court Chief Justice John Marshall, Jefferson's second cousin once removed, was a federalist. Marshall realized that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it and significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear and give Jefferson a cheap victory. Either case would be a denial of the basic principle of the supremacy of the law and the concept of checks and balances.

Marshall's decision in this case has been hailed as a judicial 'tour de force.' The Supreme Court declared that Madison should have delivered the commission to Marbury, but it then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue Writs of Mandamus in the case of undelivered commissions exceeded the authority allotted the Court in Article III of the Constitution. The Supreme Court ruled that the Federal Judiciary Act of 1789 was null and void, that is 'unconstitutional.' Article III listed the specific types of cases where the Supreme Court was to serve as the court of original jurisdiction and federal judicial commissions were not included in the list. Thus Marshal was able to chastise Jefferson and yet not create a situation in which a court order would be flouted. Marbury did not receive his commission.

The importance of Marbury v Madison is not that Marbury did not become Justice of the Peace for D.C., but that the Supreme Court assumed several powers that were not specifically granted to it by the Constitution. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

The Supreme Court would not declare another act of Congress unconstitutional until 1857. However, through its role as arbiter of the Constitution, the Supreme Court has, been the chief agency for the expansion of individual rights especially in the twentieth century.

History's currents or current history? You decide.