"In my opinion Marshall's great place in the history of our country is due, not to any doctrine of the limitations of the legislative power, which others deduced from that decision more than half a century later and with but doubtful warrant"

And now we get to the real nature of Marbury vs. Madison instead of the common nonsense that it was the real start of the modern Supreme Court supremacy.  And how the use of it was more of an excuse by, first the Taney Court to do exactly what Marshall's decision did not do, expand the powers of the Supreme Court in a significant and dangerous way.

I think it's not often considered how much the American culture of the law and the courts is shaped by what could honestly be considered a folklore process like mastering an ancient quasi-religious liturgy.  How things come into being and gain a life of their own and are maintained and expanded on, not in the explicit act of a legislative body hearing the appeals of their constituents, studying issues, carefully drafting laws with an intended purpose and those being approved or turned down by a large body of ELECTED representatives, or, in some cases, by referendum by the voters.  

Instead of that representative, sometimes arguably democratic process, the law as passed by the legislature or not is shaped by a priesthood of robed professionals, at the highest level, one of unquestionable, unanswerable authority who can distort or change or alter meanings at will.  And lawyers and lower judges who want to get along in the profession pretend that those things are as legitimate as duly adopted laws passed democratically.  In the law-school lore of that culture, such things as are being discussed here become fundamental, everyday assumptions which, if disturbed or even questioned, cause panic and worry, not least for their ability to make good money off of lawyering.  The role that professionally interested maintenance of a knowledge of a body of lore and protecting that lore from drastic change that could upend much of what their professional work takes for granted accounts, I think, for why the idea of abolishing this usurpation of legislative and executive power seems so radical when it is such an obvious danger and such a clearly extra-Constitutional, mostly anti-democratic usurpation of power by unelected, unanswerable "justices" who are frequently most unjust.

III

In 1803 came Chief Justice Marshall's decision in Marbury v. Madison.  Since this is not an inquiry into the broad question whether or not the courts should have the power to declare legislation unconstitutional under any circumstances, but rather a historical sketch of the development of that power, I shall not enter upon a discussion of the merits of that decision.  Suffice it to say that historically it was, as Mr. Cotton calls it, "amazing'; and that as a matter of legal reasoning it has been pronounced by many eminent thinkers unsatisfactory.  Nearly twenty-five years later Chief Justice Gibson of the Pennsylvania supreme court, one of the ablest judges that ever sat on that great bench, called Marshall's argument "inconclusive."

It's "amazing" quality does not, however exhaust its historical interest.  It was undoubtedly a turning point in the history of our political institutions.  But it lacked much of being what it has since been often represented to be, and what it is generally understood to be by students of and writers on the subject.  It is therefore worth our while to examine a little more closely into its immediate significance, at the time when it was rendered.(1)  Its positive historical importance lies in the fact that here, for the first time in our federal history, a court undertook to base a decision on its alleged power to declare a law null and void for alleged repugnance to the written constitution.  The right previously asserted by some judges as an abstract proposition was thereby turned into a concrete power,  to be reckoned with as a part and parcel of our political system.  It created the politico-legal foundation upon which the imposing edifice of that power as it now exists was gradually erected.

But the power which was actually exercised in this case was a very limited power.  Two points should be carefully noted.  In the first place, the law which the decision annulled was one particularly relating to the judicial department and its powers much like the law which was questioned in Hayburn's case.  In this instance, however, the law conferred upon one of the federal courts, namely, the Supreme Court, a distinctly judicial power.  In fact it increased the power fo the Supreme Court.  What was really decided, in Marbury v. Madison, was that the Supreme Court had received certain powers from the Constitution itself, which Congress would not be permitted by that court either to increase or to diminish.  One might very well agree with that contention without attributing to the Supreme Court a general right of reviewing the acts of Congress in matters of general legislation.  From the claim that the judicial department is a co-equal branch of the government, and that its purely judicial powers and jurisdiction, in so far as they are expressly given by the Constitution, cannot be encroached upon by Congress, which is all that the case actually decided,  it is a far cry to the claim that the Supreme Court is the sole interpreter of the Constitution and that its interpretation is binding on the legislative department in all matters of legislation.  In the second place, there is a wide difference, particularly in political matters, between the refusal to exercise a power which one's opponent believes to exist - which is all that those who did not agree with Marshall could say - and the actual exercise of a power which that opponent believes not to exist.  To the opponent the first may be unnecessary modesty or weakness or, at the very worst, neglect of duty;  but the second is usurpation.  

This last point is central to the issue, that in Marbury v. Madison, the Supreme Court was merely refusing to exercise a power, or perhaps the burden, that the members of the Court believes was given to them by Congress unconstitutionally, whether a later court would have disagreed with the power to issue the mandamus or not, that is all they were doing.  That is a far cry from what the later courts did in striking down even well accepted and popularly supported federal law, even decades after those laws were in effect, which had nothing to do with the activities of the judges and "justices" in the judicial branch.  That difference strikes me as being all the difference in the world between what Marbury v. Madison actually did and what the later instances of the Supreme Court assuming the roles of both the legislature in nullifying laws and the president in vetoing laws, even decades after those with the actual Constitutional authority to do those things had done them and the laws had been up and running.  

And, as important, is the extra-Constitutional power of annuling FEDERAL law, has to be distinguished from the Court overturning state laws which, among other things, deprive citizens of the rights guaranteed in the Constitution, itself.  The very same people who love the Supreme Court power when it strips us of important protections of our lives, such as the Roberts-Alito arming of any psychopath who can get a gun under their jacket, the right to cast a vote and have that vote matter, the right of Women to the full ownership and control of their own bodies detest it when it protects the rights of Americans, both citizens and residents, when it protects them against state laws that deprive them of their rights and their very lives.  That is exactly what the history of the Supreme Court has been, especially since Taney and his colleagues asserted and greatly expanded that "right" of the Court to do that to promote and protect slavery in 1857.  The history of the Supreme Court, even before Taney, is largely a history of the Court depriving powerless people of their rights, especially their right to the protection of the government - I would bet as many if not more state and local laws that do that have been overturned by them than those which deprive them of rights and protection.  The few times when they atypically have not done that are held up as beacons in Supreme Court history when what those are are outliars in a history more typically worse than it's painted to be.

A further point deserves notice.  The practical result of the decision, and the only result that the ordinary man could see, was a victory for Marshall's political opponents, the Jeffersonians.  Marbury, a Federalist appointee of Adams, applied to a court controlled by Federalists for a writ of mandamus compelling Jefferson's secretary of state to give him the commission signed by the outgoing Federalist secretary of state.  He claimed the writ under a law passed by the Federalists.  The Supreme Court annulled the Federalist law and non-suited the Federalist claimant.  Jefferson won a practical and substantial victory.  What did it matter what reasoning Marshall employed in giving Jefferson the victory?  The "man in the street" knew nothing of Marshall's reasons.  And if he did, he did not care.  He seldom does care for such niceties.  He is so intensely "practical."  He may have thought that Marshall used a great deal of technical language and acute reasoning in order to save the face of the court.  In short, there is nothing in the decision to bring its importance, whatever that was, home to the "practical man" - a fact which is often of controlling importance in historical events.

Of course there were not wanting at that time those who could read the future.  One of them was Jefferson.  They saw the legal significance of this decision and its possible implications, and they denounced it in unmeasured terms.  Jefferson bade it defiance; and it is safe to say that, had there been any attempt to do anything under that decision while Jefferson was president, it would have provoked a conflict in which the judiciary might easily have come out second-best.

When I went over the chapter concerning the Dred Scott decsion in Louis Boudin's book of the same name as his article and the reaction to it before and during the Civil War, it was striking that Lincoln put into effect the defiance of the extension of that power in ways that his eminent predecessor Jefferson may have come to if the Court had tried it again during his term in office.  I think Madison may have defied the Court if they tried it during his term.  That one of our greatest presidents, faced with the gravest national catastrophe we have yet faced openly defied that power in ways that Jefferson advocated should have been read as a red flag that the power claimed by them was dangerous and, when expanded by Taney et al on behalf of the slave-power it required defiance.  Would that later presidents had taken up that spirit of Jefferson and Lincoln.  Would that one did now.  

But in fact nothing was done under the power asserted by the court in Marbury v. Madison during the following thirty-odd years of Marshall's chief-justiceship.  Why this was so, it is not necessary here to inquire. . .

I will guess that it is exactly because Marshall didn't relish the idea of having a Constitutional fight with Jefferson or his successors. Not to mention the Congress who, in that period, could probably have gotten the Constitution amended to explicitly strip the Court of the power asserted as well as others.  It would probably have been far easier to do that then than it is now with fifty states, many of them so rigged and gerrymandered that even a majority of voters approving of the amendments couldn't overcome the political corruption such as the Roberts Court is rubber-stamping for the Republican-fascists.  However, it could have been that Marshall wasn't so sure of the legitimacy of the claimed power, himself, see above about the difference between refusal to exercise a power claimed and the exercise of a power disputed.

. . . I will say, however in passing, that Marshall's position as a constitutional lawyer and statesman has been much misapprehended, owing to later attempts to base the judicial power on his decision in Marbury v. Madison.  In my opinion Marshall's great place in the history of our country is due, not to any doctrine of the limitations of the legislative power, which others deduced from that decision more than half a century later and with but doubtful warrant, but to the liberal spirit in which he interpreted, and thus helped to develop, the legislative powers of Congress.  

Here is the footnote describing the case:

1. The facts of this celebrated case, in so far as they are material to an understanding of the decision, were as follows.  After the great victory of the Republicans in the election of 1800 - "the Revolution of 1800" as Jefferson called it - the Federalists utilized the brief term of power which was left them to remodel the federal judicial system and to fil the federal courts with their partisans.  As part of that work they created, by an act passed February 27, 1801, certain justiceships for the District of Columbia;  and one William Marbury, a plaintiff in the case, was appointed to one of these justiceships.  His nomination was confirmed by the Senate March 3, the last day of the Adams administration, and his commission was signed that night by the president and sealed by Marshall, then secretary of state.  On that night Marshall himself was commissioned as chief justice of the United States.  Marbury's commission, however, was left undelivered for lack of time;  and when Jefferson took office he forbade its issuance, on the ground that the appointment did not take effect until the delivery of the commission, and he was therefore free to revoke it.  Marbury the applied to the Supreme Court, now headed by Marshall, for a mandamus compelling Madison, Jefferson's secretary of state, to issue to him his commission.  To the order made by the court, commanding the new secretary to show cause why the mandamus should not issue, Madison paid no attention.  After long deliberation, the court gave its decision in 1803, refusing to issue the mandamus.  In the opinion delivered by Marshall, the court based its decision, not on the contention put forward on behalf of the administration, that Marbury was not legally appointed and therefore not entitled to the commission, which contention it expressly overruled, but on the alleged lack of power in the Supreme Court to issue a mandamus.  In order to arrive at this latter conclusion, the court had to declare unconstitutional a statute passed by Congress giving the Supreme Court such power.  And it is this part of the opinion that has made it famous.

I noted yesterday that virtually all of the major figures in the Marbury v. Madison case were among the eminent and lesser "founding fathers" who wrote the Constitution.  

John Adams was certainly one of the key figures in the Constitutional Convention and someone who had the confidence of George Washington, certainly another major figure in it.  I assume the law that was nullified in the decision was one he signed into law, though I would like to find confirmation of that.  HE certainly didn't think what he was doing was unconstitutional.  As his Secretary of State, later the Supreme Court chief who issued the ruling, you have to wonder if John Marshall believed what his president was doing was unconstitutional at the time.  I don't know if he ever said anything on that.  Perhaps he, as a "not-founder" deferred to those who had actually debated and drafted it as having superior knowledge, even if they disagreed among themselves.  Which they clearly did in many instances.  The claim that today's Supremes can discern THE INTENT OF THE FOUNDERS is a lie. In many cases there is no such single intent.

James Madison who ignored the Court's demand that he explain himself was one of the most important figures in the Constitutional Convention.  What his thinking of the Constitutionality of the whole thing was, how it related to his reading of the Judiciary articles would be interesting to know. I have not researched to see if he left any such commentary.  

Jefferson, while he was not at the Convention and, so, isn't considered a "founding father" was certainly one of those most influential in shaping the general outlines of it. And, as Boudin notes, he was a fierce critic of the kind of power that Marshall asserted in regard to courts, even the Supreme Court having the power to nullify duly enacted federal laws.

To assert that, in any way, the power asserted in a weak form by Marshall and built on in a radical manner by Taney in the Dred Scott decision - a power which Lincoln rejected and defied and was not removed from office for - was not the usurpation of the Supreme Court refusing a piddling power to issue a mandamus by seizing the power to do what was solidly and clearly a legislative act or that of the executive, rejecting legislation or vetoing it, is incredibly sleazy.  The cynicism of Henry IV of France's sham conversion to Catholicism to gain the crown is infinitely less cynical in comparison.

I will note that I think the relative reticence with which Boudin calls into question the origin and motivations of starting and building that edifice of government by judiciary in 1911 became far stronger in 1931.  Today, ninety-one years later, the case would be stronger still, and more complicated and informed by more recent research into the financial background of Marshall as a major slave holder along with his rulings on that most fraught of issues in American history.  I find it impossible to not think of him as a self-serving slaver and racist first and foremost.  I think in this case he may have come to his decision grasping onto whatever he could to avoid having a confrontation with Jefferson and Madison which he, brilliant as he must have been, would be outgunned, in intellectual and political power and reputation.  The delay in the issuance of the decision looks to me like he and his colleagues, who would probably be looking at the prospect of such a fight with those two giants with even less enthusiasm were looking for an excuse to do nothing and they lighted on a very dangerous excuse for that.  One which has, since it was taken up by Taney as an excuse to do one of the most evil things that Court has ever done, proven to be extremely dangerous.  Its dangers have grown larger ever since till today and the first election-rigging Rehnquist Court and now the neo-apartheid, vote suppressing,  uterus nationalizing Roberts-Alito Court are making ever more dangerous.

It's time that the Supreme Court's reign of judicial supremacy is ended.  We need a Supreme Court that is less supreme and more in line with those of modern more egalitarian democracies.  We need them to serve fixed terms and to have that self-taken power removed from them while in office.   The 18th century ended a long time ago, so did the 19th, and the 20th. We can't get to the future with this Federalist-fascist Society chain on us.