Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

views on the federal judiciary. On February 27th 1801, a week before the end of President John Adams’s term in office, Congress adopted an act permitting the president to appoint forty-two justices of the peace.20 Adams and the Federalist Party had been turned out of office and lost the presidency to Thomas Jefferson and the anti-Federalists (sometimes called by the odd-to-contemporary-ears name, Democratic-Republican Party), but the Federalists’ terms in office had not yet expired. Adams submitted his nominations on March 2nd, and the Senate confirmed his nominees on March 3rd, the day before Jefferson took office.21

John Marshall had begun serving as Chief Justice of the United States on February 4th 1801, but had been Secretary of State of the United States since June 6th 1800. He served as both Chief Justice and Secretary of State until Jefferson took over the presidency. As Secretary of State, he was charged with signing the new justices’ commissions. After signing them, Marshall called upon his brother, James Marshall, to deliver them.22 Unfortunately, a few of the commissions, including William Marbury’s, were not delivered until after Jefferson’s inauguration. Jefferson, a Democratic-Republican and anti-Federalist, instructed James Madison, his Secretary of State, to withhold the commissions. Marbury filed suit in the Supreme Court of the United States seeking a writ of mandamus, which would have compelled Madison to deliver his commission. The commission was the formal document naming Marbury, who had validly been appointed by President Adams and validly confirmed by the Senate. In an era before personal identifications, photographs, and other means of identifying and recognizing someone, a judge, especially a newly appointed judge, needed to show his commission to court authorities before taking the bench.

Chief Justice Marshall, writing for the Court, broke the case down into three issues: (1) whether Marbury has a right to the commission; (2) if he has a right to the commission, whether he has a legal remedy for the failure to deliver it; and (3) if he has a legal remedy, whether the Supreme Court of the United States can provide him with such a remedy. Since Adams nominated Marbury, and the Senate confirmed him, Marshall held that Marbury did have a legal right to the commission. Marshall went on to state that “where there is a legal right, there is also a legal remedy.”

It is necessary, in every case, for a court to determine whether a legal right has been violated before it can act. In the case of Baker v. Carr (1962), the plaintiffs, Tennessee citizens and urban dwellers, argued that the Tennessee Legislature violated the Fourteenth Amendment to the United States Constitution by not reapportioning (altering voting-district lines) to account for population changes in the state. By not acting, the plaintiffs argued that the Tennessee Legislature gave the less-populated rural areas more influence than the urban areas. The Supreme Court held that it could hear reapportionment cases, and found that the Tennessee Legislature violated the Fourteenth Amendment, and the means to remedy that violation was a federal lawsuit, filed with a federal district (trial level) judge.

Justice Felix Frankfurter, however, dissented in Baker, arguing that the Legislature had not violated a federally protected legal right. All Tennessee citizens maintained the right to vote, and their votes were counted. Frankfurter stated that the plaintiffs were simply “dissatisfied” with their current degree of representation, and argued that it is not the job of the federal courts to give them more political power. According to Frankfurter, “there is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The Framers, carefully and with deliberate forethought, refused so to enthrone the judiciary.” In Baker, Frankfurter reiterated his plurality opinion in Colegrove v. Green (1946), in which he stated that “Courts ought not to enter this political thicket.”

In Marbury v. Madison, unlike in Baker, Marbury did, in fact, have a legal right and a remedy. The problem for Marbury was that the United States Supreme Court could not provide the remedy Marbury deserved. Marbury filed his case directly in the Supreme Court because Section 13 of the Judiciary Act of 1789 stated that the Supreme Court had “original jurisdiction” over the matter. That is, the statute stated that the case could be filed directly with the Supreme Court; it did not need to make its way through lower federal courts or through a state court system first, as is usually the route, and as was the route in Baker v. Carr.

Article III, Section 2, of the Constitution, however, states that “[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction.” This clause clearly did not cover Marbury’s predicament. The question for Chief Justice Marshall, then, was whether the constitutional provision at issue represented an exhaustive list, or whether Congress could expand the Supreme Court’s original jurisdiction through legislation. Marshall held that Article III does, in fact, create a ceiling on the Supreme Court’s original jurisdiction, and therefore declared Section 13 of the Judiciary Act of 1789 unconstitutional. Unfortunately for Marbury, he had filed his case in the wrong court because he had followed a law that was the very first in history to be declared unconstitutional.

This case is significant because it established the Supreme Court as the authoritative interpreter of the Constitution, and asserted the Supreme Court’s power of judicial review. The concept of judicial review permits the federal judiciary to review and to strike down as unconstitutional acts of the legislative and executive branches (and eventually of state governments as well). According to Marshall, “It is emphatically the province and duty of the judicial department to say what the law is.”

Chief Justice Marshall clearly engaged in a form of policymaking, or “activism.” Marshall held that Article III limits the Supreme Court’s original jurisdiction. More importantly, he advanced the policy that the Supreme Court, and neither of the other two branches, is the final authority on “what the law