RedState's Water Cooler - February 24, 2019 - Open Thread - "The First Big Decision"

There are certain moments in American history which transcend others. For example, everyone seems to like to answer the questions of where you were when the space shuttle Challenger exploded, where you were when John F. Kennedy was assassinated (if you’re old enough,) where you were when you learned about 9/11, and other such momentous events.


Yet today’s anniversary is one of the most momentous in our history for reasons that have become abundantly plain through the years. It was on this date in 1803 that the United States Supreme Court gave itself the power of judicial review.

The case, of course, was Marbury v. Madison. In his opinion, Chief Justice John Marshall established a right for the Supreme Court which shaped our history, and will continue to do so as long as there is a United States of America.

The original story goes back to the waning days of the administration of John Adams, who was about to be succeeded by his theological rival, Thomas Jefferson, who had just won a closely contested election in 1800.

Not wanting Jefferson’s limited government philosophy to gain purchase in the courts, with two days remaining in his administration Adams nominated sixty of his Federalist Party supporters to various levels of judgeships, which were swiftly confirmed by the Senate. This group was known to Jefferson’s supporters as “Midnight Judges.”

However, not all the commissions were delivered before President Jefferson took office, and one of those commissions belonged to a Maryland businessman named William Marbury.

Since Marbury did not have his commission before Adams left office, Jefferson ordered his new Secretary of State, James Madison, not to deliver it. Marbury sued.


The 4-0 decision was authored by Chief Justice Marshall, who decided three questions at the same time:

  1. Did Marbury have a right to receive his commission?
  2. If the answer to question one was yes, was there a legal remedy for Marbury to receive it?
  3. If the answers to questions one and two were yes, could the Supreme Court legally enact it?

The answer to the first question was yes. The judges had been legally appointed and confirmed. The second was also yes, relying on the old Roman legal principle that “where there is a legal right there is also a legal remedy”, or ubi jus, ibi remedium.

The answer to the third question was more difficult and hinged on interpretation of the law passed by Congress in 1789 to create the federal court system. The Judiciary Act created the principles of original and appellate jurisdiction in American law, but the controversy came in how it was worded.

Marbury sought a writ of mandamus as his relief, arguing that according to the Act of 1789, the Supreme Court both had original jurisdiction over the case and could issue a writ based on the wording of Section 13 of the Act.

However, Marshall disagreed — to a point. Article III, Section 2 of the Constitution created the Supreme Court but did not give it the power to hear Marbury’s case under original jurisdiction.

As such, Marshall ruled that Section 13 of the 1789 Act gave the Supreme Court extra-Constitutional authority, which was impermissible. As such, he invalidated that portion of the Act — the first time in American legal history that a court had struck down a portion of a federal law.


He relied on Alexander Hamilton’s words in Federalist #78:

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.

Politically, the decision was genius. It vindicated Marbury, but also prevented the Court from potentially having a writ of mandamus ignored by the President, thus maintaining its own credibility. Also, by not forcing Madison to deliver Marbury’s commission, he allowed Jefferson’s Democratic-Republican Party to save face.

Denied his writ of mandamus by the Supreme Court, Marbury did not avail himself of the opportunity to try the case in lower courts. He never became a judge.

The irony of the decision is that Article III, Section 2 of the Constitution does not expressly grant the Supreme Court the power of judicial review. However, Marshall argued that the Constitution existed to limit the powers of government and without this authority, it would be impossible to determine what those limits were.

That was all well and good in 1803, of course, but it can certainly be argued that the focus of the court has shifted over time. Marshall’s dictum in his decision was that “it is emphatically the province and duty of the judicial department to say what the law is.”


No one would begrudge that, but some of today’s justices, however, have increasingly taken the opinion that it is the province and duty of the judicial department to make law, or in some cases (Roe v Wade and Obergefell v Hodges to name just two) to invent it out of whole cloth.

Marshall’s decision was in no small part based on a completely strict reading of the Constitution, which was done at least partly for political reasons. With the recent elevations of Neil Gorsuch and Brett Kavanaugh to the Supreme Court of today, conservatives can only hope that the spirit of Marshall’s decision will eventually live again in our nation’s highest court.

Happy Sunday and enjoy today’s open thread!



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