History, History Column

A Case for Judicial Review: Marbury v. Madison

by ©2023 Sarah Becker

From the Republic’s founding there has been a connection between politics and the courts. Perhaps no more dramatically than the case of Marbury v. Madison [1803]. The U.S. Supreme Court decision was landmark: it established the Constitutional doctrine of judicial review.

The case—brought by the district of Columbia’s William Marbury and Alexandria complainants Robert Townsend Hooe [the Town of Alexandria’s first Mayor], Dennis Ramsay and William Harper—was an outgrowth of the contentious politics surrounding the Presidential election of 1800.

In November 1800, President John Adams [F-MA] lost his re-election bid. Incumbent Vice President Thomas Jefferson [DR-VA] defeated him. Soon after Jefferson’s Democratic-Republican Party claimed Adams was packing the courts in an effort to protect the Federalist Party’s legacy.

John Adams was well known for his 1776 Thoughts on Government. “For Adams the structure of government was a subject of passionate interest that raised fundamental questions about the realities of human nature, political power, and the good society,” David McCullough explained. “It was a concern that for years had propelled much of his reading and exchange of ideas.” Adams want: a government that included an executive, a bicameral legislature, and an independent judiciary.

President Adams appointed attorney and former French Envoy John Marshall Secretary of State on June 6, 1800. Months later, when U.S. Supreme Court Chief Justice Oliver Ellsworth [1796-1801] resigned, Adams offered the Chief Justice’s job to Marshall. Chief Justice Marshall took his oath of office on February 4, 1801, while simultaneously serving as ad interim Secretary of State.

Marshall, a moderate Federalist, was born in Germantown, Virginia, in 1755. The oldest of 15 children he was schooled using mostly the Dictionary. His was a stellar resume. Marshall joined the Virginia BAR in 1780; was a member of the House of Burgesses [1782-1788] and an elected emissary to Virginia’s 1788 U.S. Constitution ratifying convention.

Not long after the Chief Justice’s confirmation Adams Federalist-dominated Congress passed the Judiciary Act of 1801—a revision of the Judiciary Act of 1789. Also, The Organic Act of 1801 an Act Concerning the District of Columbia. The Organic Act divided the newly formed Federal District into “Washington and Alexandria counties” and set up a court system for both. To which outgoing President Adams appointed officers including U.S. judges, a marshal and attorney, and justices of the peace.

On March 2, 1801—two days before President Adams was scheduled to retire—he nominated 23 justices of the peace in Washington and 19 in Alexandria, D.C. The “midnight” justices were quickly confirmed; outgoing Secretary of State John Marshall affixed the proper seal then put their commissions aside for incoming Secretary of State James Madison [DR-VA] to deliver. Not all of the commissions were delivered.

Disgruntled appointee William Marbury, aided by Alexandria attorney and former Attorney General Charles Lee filed a lawsuit requesting a writ of mandamus forcing Secretary of State James Madison to act. That said, the incoming 1802 Democratic-Republican Congress repealed the Federalists Judiciary Act of 1801; politics intervened and the matter was delayed. The U.S. Supreme Court, as it then operated closed for one year.

In preparation for the U.S. Supreme Court 1803 hearing, Maryland Senator John Howard [F-MD] introduced a request for a certified copy of the Senate’s 1801 executive journal:

“THAT your Petitioners have been informed and verily believe, that John Adams while President of the United States, nominated to the Senate of the United States for their advice and consent, your petitioner William Marbury, to be a justice of the peace in the county of Washington, in the District of Columbia, and your Petitioners, Robert Townsend Hooe and Dennis Ramsay, to be Justices of the Peace in the county of Alexandria, in the same District; that the said nominations were duly taken into consideration by the Senate, who on or about March 1, 1801, were pleased to give their advice and consent that your petitioners should be severally appointed to the office aforesaid; that commissions were accordingly in due form signed by the President, and directed to be sent to your petitioners by the Secretary of State, but that your petitioners, from some cause, have been deprived of their commissions, and are reduced to the necessity of asserting their rights to same, in a judicial course proceeding, in which, as they are advised, it will be requisite to produce satisfactory evidence.”

“It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall argued in Marbury v. Madison.

“The Judges of the Supreme Court have given it as their opinion, in the case of the Mandamus, that the justices are entitled to their commissions, but, that they have not the power to issue a mandamus in the district of Columbia, it not being a State,” the Alexandria Advertiser and Commercial Intelligencer reported. “If, however, the occurrence had taken place in one of the states they should have had no hesitation in granting it.”

The legal questions were three. Has the applicant a right to the commission he demands?  If he has a right, and that right has been violated, do the laws of his country afford him a remedy?  If they afford him a remedy, is it a mandamus issuing from this court?

Assistant Circuit Court Judge James Marshall, the Chief Justice’s brother, testified on behalf of the litigants stating “that he had attempted without success to deliver a number of commissions in Alexandria, and that he returned them to the State Department.” James Marshall lived in Alexandria, in a rental home at 220 N. Washington Street.

Reader’s question: Is the Marbury decision an example of judicial independence or the inevitable influence of politics on the judicial process?  Answer: The Supreme Court accepted the politics and, in the process established its constitutional authority.

“In its far-reaching importance to the country, Adams appointment of Marshall was second only to his nomination of George Washington to command the Continental Army twenty-five years before,” McCullough concluded.

George Washington, of no political party, retired from the Presidency in March 1797. His third retirement as scholars describe it. As President, Washington thought political parties impolitic, a violation of “justice, sound reasoning, and fair representation.”

“The Mass of our Citizens requires no more than to understand a question to decide it properly,” George Washington wrote John Marshall in December 1797. Yet, in 1798, Washington was recruiting Congressional candidates on behalf of Adams Federalist Party.

John Marshall, Thomas Jefferson’s second cousin, was such a candidate. On the morning of September 3, 1798, Marshall joined George Washington for breakfast at his Mount Vernon Estate. Washington “urge[d] him to run for Congress as a Federalist for the District around Richmond.”  He accepted Washington’s invitation reluctantly.

Adams and Jefferson differed in their notions of democracy. Adams, like his predecessor George Washington preferred a strong central government. Jefferson favored states’ rights.

The Sixth U. S. Congress convened March 4, 1799. Marshall entered the Halls a winner. He succeeded by neutralizing skeptics like Patrick Henry; splitting with Federalist Alexander Hamilton, and opposing the Alien and Sedition Acts.

“Marshall went on in a series of landmark decisions [Fletcher v. Pick (1810), Marlin v. Hunter’s Lessee (1816), McCullough v. Maryland (1819), and Gibbons v. Ogden (1824)] to strengthen the power of the central government and to favor a broad interpretation of the Constitution—what it implied rather than literally stated,” historian Arthur Schlesinger, Jr., explained.

John Marshall served until 1835. He died on July 6, 1835, while seeking medical treatment in Philadelphia. Two days later the Liberty Bell rang as part of the Chief Justice’s funeral procession. The freedom bell reportedly rang so hard, so long that it cracked—never to clang again.

Today’s legal dilemma: the U.S. Supreme Court’s overturning of Roe v. Wade [June 24, 2022]. A legal, poli-religious dilemma it is! Two Federal District Judges, one in Washington State another in Texas, ruled for and against the sale of Mifepristone, a commonly used abortion drug. Another Court ruling waits.

Columnist’s Reply: Nashville, Tennessee’s March 28, 2023, Covenant School shooting has readers again scratching their heads. Six people are dead including three nine-year-old students. The murder weapons: two semiautomatics and a handgun, three of seven firearms legally purchased by the disturbed 28-year-old shooter. Then, on April 10 a 25-year-old suicidal employee—using an AR-15 assault rifle—shot nine people killing five inside Louisville, Kentucky’s Old National Bank.

“Firearms are the leading cause of death in children and youth ages 0 to 24 years of age in the United States,” The American Academy of Pediatrics decided in December 2022. The Children’s Defense Fund agrees.  Does U.S. Senate Minority Leader Mitch McConnell [R-KY], a recipient of NRA largesse even care? McConnell, as of the 118th Congress, has received $1,329,699 in NRA campaign contributions. Why? Because the U.S. Supreme Court has left the 2002 McCain-Feingold Bipartisan Campaign Reform Act in tatters. McConnel l v. FEC (2003) and Citizens United v. FEC (2010) are two case examples.

Sarah Becker started writing for The Economist while a graduate student in England. Similar publications followed. She joined the Crier in 1996 while serving on the Alexandria Convention and Visitors Association Board. Her interest in antiquities began as a World Bank hire, with Indonesia’s need to generate hard currency. Balinese history, i.e. tourism provided the means. The New York Times describes Becker’s book, Off Your Duffs & Up the Assets, as “a blueprint for thousands of nonprofit managers.” A former museum director, SLAM’s saving grace Sarah received Alexandria’s Salute to Women Award in 2007. Email: abitofhistory53@gmail.com

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