The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815. Beveridge Albert Jeremiah

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writ of mandamus for which Marbury had applied? It was, said Marshall; but could such an order be directed to the Secretary of State? This was a task "peculiarly irksome, as well as delicate,"381 for, he observed, there were those who would at first consider it "as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive." Far be it from John Marshall to do such a thing. He need hardly "disclaim all pretensions to such jurisdiction." Not "for a moment" would he entertain "an extravagance so absurd and excessive… Questions in their nature political, … can never be made in this court." But if the case before him presented only questions concerning legal rights of an individual, "what is there in the exalted station" of the Secretary of State which "exempts him from … being compelled to obey the judgment of the law"? The only remaining question, therefore, was whether a mandamus could issue from the Supreme Court.382

      In such manner Marshall finally arrived at the examination of the constitutionality of Section 13, which, he said, fitted the present case "precisely"; and "if this court is not authorized to issue a writ of mandamus" to Madison, "it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority."383 In reaching this point Marshall employs almost seven thousand words. Fifteen hundred more words are used before he takes up the principle of judicial supremacy over legislation.

      The fundamental law of the Nation, Marshall explained, expressly defined the original jurisdiction of the Supreme Court and carefully limited its authority. It could take original cognizance only of specific cases. In all others, the court was given nothing but "appellate jurisdiction." But he omitted the words that immediately follow in the same sentence – "with such exceptions … as the Congress shall make." Yet this language had, for fourteen years, apparently been considered by the whole bench and bar as meaning, among other things, that while Congress could not take from the Supreme Court original jurisdiction in the cases specifically named in Article Three of the Constitution, Congress could add other cases to the original jurisdiction of the Supreme Court.

      Marshall was quite conscious of all this, it would seem. In the argument, counsel had insisted that since "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."384 But, reasons Marshall, in answer to this contention, if Congress could thus enlarge the original jurisdiction of the Supreme Court, "the subsequent part of the section385 is mere surplusage, is entirely without meaning, … is form without substance… Affirmative words are often … negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them, or they have no operation at all."386

      That is to say, when the Constitution conferred upon the Supreme Court original jurisdiction in specified cases, it thereby excluded all others – denied to Congress the power to add to the jurisdiction thus affirmatively granted. And yet, let it be repeated, by giving original jurisdiction in cases specifically named, the Constitution put it beyond the power of Congress to interfere with the Supreme Court in those cases; but Marshall asserted that the specific grant of jurisdiction has "no operation at all" unless "a negative or exclusive sense" be given it.387

      Marshall boldly held, therefore, that Section 13 of the Ellsworth Judiciary Act was "not warranted by the Constitution." Such being the case, ought the Supreme Court to act under this unconstitutional section? As the Chief Justice stated the question, could "an act, repugnant to the constitution … become the law of the land"? After writing nearly nine thousand words, he now reached the commanding question: Can the Supreme Court of the United States invalidate an act which Congress has passed and the President has approved?

      Marshall avowed that the Supreme Court can and must do that very thing, and in so doing made Marbury vs. Madison historic. In this, the vital part of his opinion, the Chief Justice is direct, clear, simple, and convincing. The people, he said, have an elemental right to establish such principles for "their future government, as … shall most conduce to their own happiness." This was "the basis on which the whole American fabric had been erected." These "permanent" and "fundamental" principles, in the instance of the American Government, were those limiting the powers of the various departments: "That those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited … if these limits may, at any time, be passed by those intended to be restrained?"388

      If Congress or any other department of the Government can ignore the limitations of the Constitution, all distinction between government of "limited and unlimited powers" is done away with. To say that "acts prohibited and acts allowed are of equal obligation" is to deny the very purpose for which our fundamental law was adopted. "The constitution controls any legislative act repugnant to it." Congress cannot alter it by legislation.389 All this, said Marshall, was too clear to admit of discussion, but he proceeded, nevertheless, to discuss the subject at great length.

      There is "no middle ground." The Constitution is either "a superior paramount law" not to be changed by legislative enactment, or else "it is on a level with the ordinary legislative acts" and, as such, "alterable" at the will of Congress. If the Constitution is supreme, then an act of Congress violative of it is not law; if the Constitution is not supreme, then "written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable." Three times in a short space Marshall insists that, for Congress to ignore the limitations which the Constitution places upon it, is to deny the whole theory of government under written constitutions.

      Although the contention that the Judiciary must consider unconstitutional legislation to be valid was "an absurdity too gross to be insisted on," Marshall would, nevertheless, patiently examine it.390 This he did by reasoning so simple and so logical that the dullest citizen could not fail to understand it nor the most astute intellect escape it. But in the process he was tiresomely repetitious, though not to so irritating an extent as he at times became.

      If two laws conflict, the courts must decide between them. Where the Constitution and an act of Congress apply to a case, "the court must determine which … governs [it]. This is of the very essence of judicial duty… If, then, … the constitution is superior to any ordinary act of the legislature," the Judiciary must prefer it to a mere statute. Otherwise "courts must close their eyes on the constitution," and see only the legislative enactment.391

      But to do this "would subvert the very foundation of all written constitutions." It would be to "declare that an act which … is entirely void, is yet … completely obligatory," and that Congress may do "what is expressly forbidden." This would give to the legislature "a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits." It would be "prescribing limits, and declaring that those limits may be passed at pleasure." This "reduces to nothing" both the letter and the theory of the Constitution.

      That instrument expressly extends the judicial power to cases "arising under the constitution." Must the courts decide such a case "without examining the instrument under which it arises?" If the courts must look into the Constitution at all, as assuredly they must do in some cases, "what part of it are they forbidden to read or to obey?"

      Marshall cites hypothetical examples of legislation in direct conflict with the fundamental law. Suppose that Congress should place an export duty on cotton, tobacco, flour, and that the Government should bring suit to recover the tax. "Ought judgment to be rendered in such a case?" Or if a bill of attainder should be passed and citizens prosecuted under it, "must the court condemn to death those victims whom the constitution endeavors to preserve?"

      Take, for example, the crime of treason: the Constitution emphatically prescribes that nobody can be convicted of this offense "unless

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