Cara A. Valente-Compton
In the Supreme Court Case of Marbury v. Madison, in which William Marbury sued Secretary of State James Madison for the commission to his “midnight appointment” as a justice of the peace, the issues central to the case were fairly concise: First, was Marbury rightly appointed and entitled to that appointment? Second, if it be the case that he was entitled to the appointment, is he due a remedy? And third, if he is due a remedy is that remedy a writ of mandamus from the Supreme Court to compel the delivery of his appointment? However obvious the facts of this case may be, Marbury v. Madison became a tool with which to examine the nature of the Constitution, the nature of the judiciary, and the powers and constraints of statutory law. Chief Justice John Marshall authored the opinion of the court, which was unanimous. Marshall’s assertions remain the fundamental assumptions of the nature of jurisprudence in America, the power of judicial review of law.
First, Marshall’s opinion of the nature of the Constitution is bedrock. “That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.” (Marbury, p. 75, col. 1, pp. 2) The people, according to Marshall, have drafted and ordained this Constitution as the oracular guide to American law, establishing specific and binding grants of authority to the three branches of government. The nature of this constitution is then specifically designed to be limiting, restrictive and permanent. “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” (Marbury, p. 75, col. 1, pp. 4) Indeed, what is the point of crafting limitations to power if those limited by the rules can simply change them through statutory law? Why would the framers give a general grant of authority to one body of government if that grant can be manipulated by another, equal, branch of government? This also cannot be the case, as it casts off the will of the people.
As to statutory law, Marshall’s opinion is also clear, “The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.” The latter could not possibly be what the framers of the constitution intended, as evidenced by Article V, which establishes that congress, “whenever two thirds of both houses shall deem it necessary, shall propose Amendments to this Constitution, or on the Application of the Legislatures of two thirds of the several States, shall call a Convention, for proposing Amendments, which, in either case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by Congress.” (Epstein and Walker, Appendix 1, p. 691) Therefore, if the constitution is the supreme law, and the legislature enacts contradictory statute, Marshall sums “…an act of the legislature, repugnant to the constitution, is void.”(Marbury, p. 75, col. 2, pp 1). Ultimately, the Constitution, as the word of the people, must be supreme to the statutory laws of our government, lest the servant be greater than the master. The supreme law of the land, the constitution, can only be changed through amendment to that document, which requires the express consent of the people.
This brings us to Marshall’s view of the nature of the judiciary. Justice Marshall could not be clearer when he contends, “It is emphatically the province and duty of the judicial department to say what the law is.”(Marbury, p. 75, col. 2, pp. 4). In cases where there is a conflict between laws and rules it is up to the court to “expound and interpret that rule…the courts must decide on the operation of each.” (ibid) Marshall goes further to say, “This is the very essence of judicial duty.”(Marbury, p. 75, col. 2, pp. 5). This is the most elemental and powerful tool of the courts, judicial review in a nutshell.
It is imperative at this point to discuss judicial reach, and the concepts of original and appellate jurisdiction. “The judicial power of the United States is extended to all cases arising under the constitution.”(Marbury p. 76, col. 1, pp. 2). Here Marshall quotes nearly directly from the Constitution, Article III section 2, which goes on to enumerate those domains where the Supreme Court is given the grant of authority by the people of the United States. The Constitution is very clear in specifying the boundaries between original jurisdiction; and includes cases dealing with Ambassadorships, other governments, and conflicts between states, among others. The Constitution provides that in all other cases the Supreme Court shall have appellate jurisdiction, in other words that they need to originate in a lower court first before being taken to the Supreme Court for appeal.
Marshall turns to the Constitution to show us how the people explicitly granted powers to the various branches of government, then says “from these and many other selections which might be made, it is apparent, that the Framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.” (Marbury, p. 76, col. 2. pp. 1). He uses, as example, the oath of office to which justices are compelled to swear, “How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!”(Marbury, p. 76, col. 2, pp. 2) and further, “Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed to him, and cannot be inspected by him?”(Marbury, p. 76, col. 2, pp. 4). This simply cannot be the case.
Resuming the examination of the issues of the case, it was ruled: First, yes William Marbury had been duly nominated and appointed and was therefore (secondly) entitled to the commission of his duties; Third, yes, Marbury is entitled to remedy, after all there can be no right without remedy. However, whether it was the role of the Supreme Court to confer that remedy is the crux of this case. By applying Marshall’s view that the Constitution trumps statutory law and that it is the role of the Supreme Court to decide the law, the obvious conclusion is that the Judiciary Act, by amending the role of the Supreme Court without a grant of authority from the people to do so by means of a Constitutional amendment, was unconstitutional. Further, it is the role of the Supreme Court to say what the law is, and in this case it is the opinion of the court that the provisions made by the Judiciary Act of 1789 were unconstitutional, and subsequently void. Thus these provisions cannot be applied, the Supreme Court is not in authority to issue writs of mandamus, and the case is dismissed.
Four cases that we have studied thus far illustrate the power of checks and balances, specific to the judiciary’s ability to examine the actions of another body, in these cases the Congress, to determine whether these actions are constitutional. This is the power of judicial review. Though the issues in these cases vary enormously, the common thread that unites them is the power of the courts to examine the actions of Congress and make determinations about the validity of their actions.
In the first case, McCullough v. Maryland, one of the two central arguments facing the court was whether the Congress had the power to establish a federal bank. In authoring the opinion of the court, Chief Justice Marshall explains for us the issue: “the conflicting powers of the government of the Union and of its members, as marked in that constitution…” (McCullough, p. 159, col. 2, pp. 1 of the case). Marshall goes further to illustrate the importance of the issue, the delicacy of it, and the reverence with which the court intended to treat the case. “On the Supreme Court of the United States has the constitution of our country devolved this important duty.” (ibid). It is clear that Marshall understood that the issue of the court speaking to the constitutionality of congressional action was potentially explosive.
Marshall speaks to the text of the Constitution on the question of whether Congress had the right to establish a bank. “Among the enumerated powers we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.”(McCullough, p. 160, col. 1, pp. 1) In short, there is no language in the document preventing the establishment of a bank, or language excluding implied powers. In fact, should the Constitution enumerate every single power it confers “would partake of a prolixity of a legal code, and could scarcely be embraced by the human mind.”(ibid) According to Marshall, the nature of the Constitution speaks to the grander scope of powers and constraints, leaving the minutiae to be “deduced from the nature of the objects themselves.”(ibid). Further, Marshall discusses the expressed powers of the government, specifically obligations related to the power of “the sword and the purse,”(McCullough, p. 160, col. 1, pp. 2) and the logical assumption that should a government be entrusted with such enormous powers, it “must also be entrusted with ample means for their execution.”(McCullough, p. 160, col. 2, p. 1) The opinion then turns to the “necessary and proper” clause, “To its enumeration of powers is added that of making ‘all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof.”(McCullough, p. 160, col. 2, pp. 3) Marshall sums, admitting that the powers of the government are limited; the obligations of the government to perform its enumerated duties necessitate it to have implied powers to execute its duties in a “manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to the letter and spirit of the constitution, are constitutional.” (McCullough, p. 161, col. 2, pp. 4) Thus Chief Justice Marshall, in delivering the opinion of the Supreme Court, acknowledges Congress’s right to establish a bank.
In the second case, Powell v. McCormack, Representative Adam Clayton Powell, Jr., in the wake of an investigation of ethics violations, was excluded from the US House of Representatives. Powell filed suit and Speaker of the House of Representatives John McCormack argued that, first, it is the right of the House to determine who is qualified to be a member, and to exclude those who failed to meet the standards, and second, that under the political questions argument this case was not appropriate for consideration by the court. Article 1, Section 2 of the Constitution provides that qualified members of the House of Representatives shall be at least 25 years of age, live in the United States for a period of at least 7 years, and reside in the state they are elected to represent. Chief Justice Earl Warren spoke to the political question issue first, concluding that “Art. I sec. 5, is at most “’a textually demonstrable commitment’ to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the “textual commitment” formulation of the political question doctrine does not bar federal courts from adjudicating petitioner’s claims.”(Powell, p. 138, col. 2, pp. 2) In short, the court was the proper venue for this case. As to the principal claim, that Congress, and Congress alone, should have the right to determine the eligibility of its members, it was ruled that, “since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.”(Powell, p. 138, col. 2, pp. 3) Here the Supreme Court has once again determined whether the actions of Congress are constitutional or not.
In the third case, South Carolina v. Katzenbach, South Carolina challenged the constitutionality of the Voting Rights Act of 1965, which sought to penalize states for failing to conform to the act; alleging that “the legislation was not appropriate to enforce the Fifteenth Amendment, that it infringed on states’ rights, and that it had the effect of treating states in an unequal manner.”(Epstein and Walker, p. 185, col. 2, pp. 2) Chief Justice Earl Warren issued the opinion of the court, referring to the “insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.”(Katzenbach, p. 186, col. 1 pp. 2) The opinion of the court was that “Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting…”(Katzenbach, p. 186., col 1 pp. 5) Warren invokes the wisdom of Justice Marshall, who in McCullough v. Maryland, who in sum said that as long as the goal is legitimate, and the means just, and carried out in accordance with the constitution, the actions are constitutional. Logically it follows, if the provisions of the Voting Rights Act of 1965 support and uphold the constitution, if it is thus constitutional, it cannot be unconstitutional.
In the fourth case, Mistretta v. United States, the courts were faced with the issue of whether the Congress could delegate their legislative authority. In an attempt to make more uniform the code for sentencing criminals for federal crimes Congress established the United States Sentencing Commission. This body, made up of seven members, nominated by the president, approved by the senate, including at least three federal judges and with a balance of political representation, would review criminal sentences according to strict guidelines established by the Congress. John Mistretta, convicted of three counts of cocaine trafficking, challenged the constitutionality of this commission, charging that the establishment of the commission violated the delegation of powers principle. The opinion of the court, however, as delivered by Chief Justice Harry A. Blackmun, does not agree with Mistretta. While the court acknowledges that the principle of nondelegation mandates that in accordance with our separation of power principle Congress cannot give away its grant of authority by the people of the United States to another branch of government, it does not prohibit Congress from seeking “the assistance of its coordinate Branches”(Mistretta, p. 273, col. 2, pp. 2) Blackmun continues, “…we harbor no doubt that Congress’ delegation of authority to the sentencing commission is specifically specific and detailed to meet constitutional requirements.” (Mistretta, p. 274, col. 1, pp. 1) In his closing, Blackmun describes the complexity of criminal sentencing as “precisely the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate.”
Here, again, the Supreme Court has evaluated an action taken by Congress by the standards set forth in the Constitution of the United States. These four cases examined above are wildly divergent in their merits, however, a common thread runs through them. In each case, the court was asked to evaluate the constitutionality of actions taken by the legislative branch, using the power of judicial review as a check on the power of Congress.