Op/Ed

Victor Nuovo: Establishing the rule of law

VICTOR NUOVO

Editor’s note: This is the 29th in a series of essays on the history and meaning of the American political tradition.
The Constitution of the United States provides for three branches of government, each exercising a separate power: legislative, executive, and judicial. Legislative power is the power to create laws; executive, the power to carry them out. Judicial power is the power of judgment. The term is derived from the Latin word “judex,” a judge, a public official who decides what is right, equitable, or good, in accordance with fundamental law.
Article III of the Constitution provides that “the judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time establish.” It also provides that, unlike officials of the legislative and executive branches who serve for limited terms, federal judges shall serve without limit of tenure on condition only of good behavior. Writing in the Federalist Papers, Alexander Hamilton explained that a life appointment would make the justices independent and immune from the pressures of partisan conflict and special interests.
A similar case has been made for academic tenure, which is intended to free scholars from intimidation or recrimination in their searches after truth. He saw no danger in these life appointments, for the Supreme Court is the least powerful branch of government: it has “neither FORCE nor WILL, but merely JUDGMENT.” Hamilton may have been too optimistic. Life tenure on the bench or in the academy, may be a necessary condition for impartiality, but it is not a sufficient one. The person who has this privilege must also have the will to achieve it.
In 1789, Congress passed a Judiciary Act, which determined that the Supreme Court should consist of a chief justice and five associate justices. It also created two levels of inferior federal courts: district courts and circuit courts of appeal. The system is basically the same today — although the number of associate justices has increased as has the number of district and circuit courts. The Judiciary Act of 1789 also clarified the scope of powers of the Supreme Court. Among other things it determined that it should be the appeals court for cases decided in federal circuit courts, and that it had the authority to issue “writs of mandamus,” that is, to issue commands or directives to officials in the executive branch of government to perform certain actions.
For over a decade after its creation, the Supreme Court was overshadowed by the other branches of government and by national events. This changed, when, on Feb. 24, 1803, the court issued its decision on the case of Marbury vs. Madison.
The decision was written by the fourth Chief Justice, John Marshall (1755–1835). Marshall had been appointed Chief Justice by John Adams, during the final year of his administration, having served as Adams’ Secretary of State. He was Chief Justice from Feb. 4, 1801, until July 6, 1835, when he died. He remains the longest-serving occupant of that office, and is generally acknowledged that no one did more to establish the rule of law than he, and that the decision concerning Marbury vs. Madison was a pivotal moment not only in the history of the court but also of the nation.
During the final lame duck year of his presidency, John Adams made a number of other judicial appointments, among them, the appointment of William Marbury as justice of the peace for the District of Columbia. These appointments enraged Thomas Jefferson, for it meant that when he assumed office, he would have to contend with a large contingent of Federalist judges, among them persons he considered his worst political enemies.
There was no denying that the appointments were valid. Adams had sought and received the requisite advice and consent of the Senate. The appointment documents were properly drafted and signed, and the presidential seal was affixed to them. They were sent to the office of the Secretary of State for delivery to the designated appointees. This happened the day before Adams left office. However, the documents were never delivered by the outgoing Secretary of State, who was also John Marshall. When Jefferson took office, their existence became known, and the new President directed James Madison, the new Secretary of State, not to deliver them. He supposed that this would nullify the appointments.
Marbury disagreed. He appealed to the Supreme Court, asserting his right to the appointment and demanding that he receive it; the appointment document was legally enacted; it was his warrant to office; and he had a right to it. The court heard his appeal. Madison, who as Secretary of State was defendant, made no appearance, nor did anyone from his office appear to defend him. It was no doubt a calculated snub. Nevertheless, the Court proceeded and issued a decision that was in Marbury’s favor, although it must not have satisfied him.
First, it was decided that Marbury’s appointment was valid. The fact that it was not delivered did not nullify it. But if the appointment was valid, then Marbury had a right to it and to the office to which it entitled him. Second, it was determined that there must exist a legal remedy to satisfy Marbury’s right. Here Marshall, in writing the decision, appealed to the common law principle ubi jus, ibi remedium (wherever there is a right, there is a remedy). What sort of remedy? A judicial command, or mandamus, directing the Secretary of State to deliver the appointment.
In summary, the court argued that Marbury’s appointment was valid, and therefore he had a right to receive it; and that since he had a right, there must exists a judicial remedy to satisfy it. So far, so good. It is from this point on, however, that, from Marbury’s standpoint, things went awry.
In section 13 the Judiciary Act of 1789, power was granted to the Supreme Court to issue “writs of mandamus,” that is, judicial commands or directives, and that this power was under its original jurisdiction. On the basis of this article, the legal remedy that Marbury desired seemed to reside in the Supreme Court, for on the basis of this statute, the court could have provided the remedy that Marbury desired. However, it did otherwise. The court declared Section 13 of the Judiciary Act unconstitutional. In doing so, it did not deny Marbury a legal remedy, but not this one. Marbury retained the right to appeal to a lower court. He chose not to do this.
Although this might seem an unhappy ending, most legal scholars would disagree, for by its action, the Supreme Court claimed a power not before asserted, for it is not written in the Constitution, the power of judicial review, or the power to decide what the law is. Section 13 of the Judiciary Act was repugnant to Marshall and his colleagues because, by enacting it Congress extended the scope of the Court’s power beyond limits set by the Constitution. Congress had violated the Supreme Law of the Land. In the Court’s decision, Marshall asserted that the Constitution is that supreme law, and that in accordance with this law, the Court is empowered to judge all other statutes and to decide their status under the Constitution.
Much has been written about this decision and the motives of Marshall, its author. Were they merely political? Marshall was a Federalist. Although related to Jefferson, a 2nd cousin, he disliked and distrusted him. The feeling was mutual. Had the court issued a writ of mandamus, there is no doubt that Jefferson would have ordered Madison to ignore it. Instead, Marshall chose a path that Jefferson was unable to block, and by doing so, he secured a power peculiar to the judicial branch.

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