The Activist

by Lawrence Goldstone

  Lee then moved on to the final point, whether or not the court could issue a mandamus against Madison. Lee spoke for hours on this question. The crux of his argument was that the president lacks authority to interfere with the process after nomination and ratification.

  “The justices of the peace in the District of Columbia are judicial officers . . . they hold their offices independent of the will of the president. The appointment of such an officer is complete when the president has nominated him to the senate, and the senate having advised and consented, and the president has signed the commission, and delivered it to the secretary to be sealed. The president has then done with it; it becomes irrevocable. An appointment of a judge once completed, is made forever. He holds under the constitution. The requisites to be performed by the secretary are ministerial, ascertained by law, and he has no discretion, but must perform them; there is no dispensing power.”

  Since the president had no authority to instruct Madison to interfere with the delivery process, it followed, the secretary of state could act in this matter only in his public ministerial capacity, which in turn meant that Madison could indeed be served with a mandamus.

  In summation, Lee said that a mandamus “is said to be a writ of discretion. But the discretion of a court always means a sound, legal discretion, not an arbitrary will. If the applicant makes out a proper case, the courts are bound to grant it. They can refuse justice to no man.”

  Lee took his seat. During the entire trial phase, Marshall and the court had been scrambling mightily to maintain at least the air that this was a genuine legal proceeding, but Madison’s insistence on treating both the show-cause order and the Court itself as if they did not exist had made things extremely uncomfortable for the chief justice. So sensitive was Marshall to the fact that the presence of only one side was making a sham of the trial, that even the Aurora thought to report it. A Marshall biographer, understating the issue, remarked that lack of a defendant “gave the proceedings an especially eerie quality.”18

  The absurdity reached its zenith after Lee had completed his remarks. Marshall urgently cast about for someone to present the opposing view. Lincoln, still insisting that he was not present in his official capacity, once more declined to reply. Marshall then offered the floor to anyone who wished to make arguments for the defense. No one stepped forward. Of course, Madison’s continued absence spoke louder than his presence would have. If he was prepared to ignore the Supreme Court of the United States in trial, he was certainly equally prepared to ignore an adverse decision.

  Thus, after the first week of the most important trial in his two-year tenure as chief justice, Marshall was facing disaster. He could have certainly entered a default judgment for the plaintiff; Madison seemed to be almost daring him to do so.19 On the other side, Lee’s assertion notwithstanding, the very evidence fundamental to the case was absent, which could have easily justified a dismissal in favor of the defendant.20 A Supreme Court that only decided narrow issues of law would not be supreme at all, but that seemed to be the role that Republicans had destined the Marshall court to play. Worse for the six Federalist justices, there seemed to be no way to avoid that unthinkable eventuality.

  Marshall, of course, never admitted to anyone whether the astounding manner in which he turned this seemingly inevitable cataclysm into victory had occurred to him in advance—he did, after all, have Talbot as a model—or whether he came up with it by necessity after the arguments—argument— had been completed.

  Whichever was the case, one conclusion is undeniable: what John Marshall achieved with his decision in Marbury v. Madison altered the United States as a nation, profoundly and forever, and the impact of his decision in that case is felt by every American every day.

  * Whether Lee’s client, Stuart, realized that his financial interests were to be sacrificed for the cause is unknown.

  * The Supreme Court handled nineteen cases from February 7 to March 3, 1803, its mandated four-week term, but only Marbury and Stuart involved constitutional questions.

  * “Reasonable information has been denied at the office of the department of state,” was how Lee phrased it.

  * The witness stand itself had been hastily thrown together since the Supreme Court chamber, such as it was, had not been set up for trials, but simply for appeals where both sides argued from their respective tables.

  TWENTY-ONE

  SAYING WHAT THE LAW IS

  MARSHALL AND THE COURT took two weeks to render a decision. During that time, Chase became ill and Court sessions were moved from the committee room in the Capitol to Stelle’s Hotel, across the street.1 Thus, the most important decision in United States Supreme Court history, that which in large part determined the Court’s role in national affairs, was delivered in a hotel parlor.

  Marshall’s opinion has been called many things, from brilliant to deceitful, concise to tedious—sometimes all in the same breath—but whatever else Marbury was, it was also perhaps the most adroit exhibition of judicial legerdemain by any judge in the nation’s history. So off-the-point was the bulk of the opinion that more than one commentator has asserted that it was not an opinion at all, but rather obiter dicta.*

  Nonetheless, a masterpiece of misdirection is still a masterpiece. And it was fortunate for his fellow justices that Marshall’s exposition was of Solomonic proportions—at eleven thousand words, in size as well as intellect—because nothing less would have done if the Court was to maintain relevance while avoiding Republican retribution.

  Marshall began, as he had in Talbot, with the case itself, although in his second paragraph he signaled that this would be no ordinary decision. There he wrote of “the peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it.”2

  The chief justice then borrowed Lee’s format of three questions, although the questions themselves had been changed. Marshall posited, “1st. Has the applicant a right to the commission he demands? 2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3d. If they do afford him a remedy, is it a mandamus issuing from this court?”

  As to the first, Marshall cited the District of Columbia act of February 1801, and then asserted that “a commission for William Marbury, as a justice of the peace for the county of Washington, was signed by John Adams, then President of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out.” (Although this had hardly been proved during the trial, if Marshall admitted as such, no need for further exposition would be necessary.)

  Citing Article II of the Constitution, Marshall then divided the appointment process into three operations: 1. “nomination, the sole act of the president, and completely voluntary”; 2. “appointment . . . also the act of the president, and also a voluntary act, though it can only be performed by and with the advice and consent of the senate”; and 3. “The commission. To grant a commission to a person appointed, might, perhaps, be deemed a duty enjoined by the constitution. ‘He shall,’ says that instrument, ‘commission all the officers of the United States.’ ”

  Marshall proceeded to parse the distinction between “appointment” and “commissioning an appointment.” “These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration,” Marshall noted without irony. He added, as a demonstration of intelligibility, “the commission and the appointment seem inseparable, it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the commission is not necessarily the appointment, though conclusive evidence of it.”3

  On its face, the point of all this sophistry seemed merely to demonstrate that, once the president had signed an appointment, he was removed from the commission process, which was precisely what Lee had argued. It must have been perplexing for those in a
ttendance that Marshall had chosen to be so dense and obscure about a point that could have been made with far less effort. But, for Marshall, the style of the opinion was to be every bit as important as its substance. Like a judicial whodunit, why this was so would not be revealed until the final scene.

  After the signature had been rendered, Marshall went on, the president “has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being so far as respects the appointment, an inchoate and incomplete transaction.” Significant by its absence was any discussion of whether or not a president was compelled to sign a commission that had been ratified by the Senate, a clear extension of the separation of powers that he had elucidated upon, but one that was nigh unto unenforceable in real-world politics.

  As Marshall had defined the process, however, once signed and sealed, the appointment was made, as least as far as the president was concerned, even if the president happened to be Jefferson and the signer Adams. Further, “The signature is a warrant for affixing the great seal to the commission: and the great seal is only to be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the presidential signature.” Thus, only a signed commission could be sealed—the order could not be reversed.* Nor was this act discretionary. “The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president.”

  Once again, Marshall had limited the power of the president to intrude into the commission process once it had begun. The secretary of state, again as Lee had asserted, was thus acting not as an agent for the executive, but as a public minister, accountable not to his boss but rather to “the people.” “It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws,” Marshall insisted. “He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.”

  In order to demonstrate impartiality, Marshall here interjected that he had sought “anxiously for the principles on which a contrary opinion may be supported,” but had found none, a two-handed swipe at Madison and the absent defense. On the one hand, Madison’s boycott had forced the chief justice to undertake—or at least attempt—an adversarial role himself, while on the other hand the absence of a defense had not really mattered because there was no alternative construction that would have held.

  Finally, after a lengthy discourse on why a commission differed from a deed—where delivery was an integral part of the transfer process—Marshall was finally ready to make his point. “It is, therefore, decidedly the opinion of the court, that when a commission has been signed by the President the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State . . . when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed . . . Mr. Marbury, then, since his commission was signed by the President, and sealed by the Secretary of State, was appointed . . . To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.”

  So, after what seemed to be an exhaustive lecture on the meaning of law and the Constitution—the object of that lecture unnamed but no mystery—Marshall had answered the key question in the affirmative. Marbury must receive his commission.

  Marshall was not finished, of course, moving immediately to the second question of whether the laws of the United States afforded Marbury any remedy. Unlike the first, there was almost no suspense involving this issue. After all, if a wrong had been done, there had to be a remedy in the law. It only remained for the Court to spell out what that remedy might be. Those in the audience at Stelle’s must have been aghast—the constitutional crisis that many had anticipated and Federalists had desperately wanted seemed to be at hand.

  Using the same elaboration as before, Marshall waxed philosophic for over an hour, often repeating the very same arguments he had just expounded in his previous remarks, all the while without ever saying anything more necessary than his first utterance on the question: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” So, not surprisingly, he concluded “That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.”

  All that was left, it seemed, was to determine whether Marbury was “entitled to the remedy for which he applies.” This question was, by all accounts, the easiest to answer. Marbury had applied for a mandamus from the Supreme Court, according to the law of the land as set down in the Judiciary Act of 1789.

  The chief justice divided this final question into two parts, “1st. The nature of the writ applied for; and, 2d. The power of this court.” As to the first, Marshall read into the record Blackstone’s definition of a writ of mandamus, cited more support from the English judicial system, and then plunged once more into a repetition of the minutiae of his previous arguments, all to demonstrate once more that since the secretary of state was acting in a ministerial capacity, he could be served with a mandamus. “This, then, is a plain case for a mandamus either to deliver the commission, or a copy of it from the record,” Marshall concluded. “It only remains to be inquired,” he went on, “whether it can issue from this court.”

  Finally, after hours of prelude, Marshall had reached bone. “If this court is not authorized to issue a writ of mandamus to [the secretary of state], it must be because [the act to establish the judicial courts of the United States] is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.”

  The constitutionality of the Judiciary Act of 1789 had never been at issue, of course, unchallenged since its passage, with the judiciary—including the Marshall court—functioning quite readily under its precepts for more than a decade. One of its authors was sitting with the chief justice on the panel; another had preceded him in the job. There must, therefore, have been no shortage of head-scratching at Stelle’s at the introduction of such a lofty question in a show-cause hearing. Marshall went on to quote from Article III, particularly the section, “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.”

  In Aristotelian fashion, Marshall first stated the argument that he intended to refute. “It has been insisted, at the bar, that if the original grant of jurisdiction, to the Supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the Supreme Court, contains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.”

  But Marshall had set up this counterargument with an obvious flaw, since the passage from Article III had clearly stated that “In all other cases, the Supreme Court shall have appellate jurisdiction.” The chief justice leapt on that phrase. The time had come for Marshall’s rabbit to emerge from his hat. “If congress remains at liberty to give this court appellate jurisdiction,” he announced,
“where the constitution has declared their jurisdiction shall be original, and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance.”

  John Marshall in 1802

  A telling point, to be sure, or at least it would have been if the Constitution had actually said what Marshall claimed it said. The chief justice had conveniently left some things out. The full sentence in Article III, Section 2 read: “In 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. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”4

  So, having spent all this time setting up his argument, Marshall was forced to resort to a half-truth to make it stick. One wonders how Justice Paterson, sitting next to the chief justice in undoubted stoicism, felt about this turn in the argument. Paterson, who had read Marshall’s treatise in advance, had certainly been asked to fall on the sword, since he not only had been a delegate in Philadelphia when Article III was drafted, but was also a coauthor of Article 13 of the Judiciary Act of 1789. He was now being asked to support an assertion that he and his fellow authors, Caleb Strong and Oliver Ellsworth, were guilty of misreading the Constitution they had helped to draft when it was patently untrue.*

  Having built this much of his house on a rotten foundation, however, Marshall had no choice but to finish the thing and hope it would not collapse. He explained in copious detail how the drafters of the Constitution would certainly have given the Supreme Court original jurisdiction in all instances that they thought it appropriate, proceeding as if the modifying clause that he had omitted did not exist.