Madison's Music (25 page)

In the end, the only evidence of Marbury's signed commission produced at the February 10 hearing was an affidavit from the fiercely partisan James Marshall, John Marshall's younger brother, describing his unauthorized March 4, 1801, foray into the State Department, where he claimed to have seen signed commissions for Hooe and Harper (but not Marbury) on a table. James Marshall's affidavit should have forced the disqualification of his older brother (especially because they had corresponded over John Marshall's failure to have delivered the commissions), and says nothing about a commission for Marbury. Charles Lee, Marbury's canny lawyer, aware of the hole in his proof, sought to supplement the record after the close of the February 11 hearing by submitting an affidavit from a third clerk, Hazen Kimball, who Lee claimed had returned to Washington without his knowledge immediately prior to the hearing.
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Kimball, a partisan Federalist, was listed as one of President Adams's private secretaries and had left the State Department after Jefferson's election. Kimball swore that he had seen signed commissions for Marbury and Hooe on the evening of March 3. Kimball's affidavit, which is the only evidence that Marbury's commission was actually signed by President Adams, appears to have been treated as untimely. Because it had not been subjected to cross-examination or rebuttal, Marshall, an excellent trial lawyer, knew that it was inadmissible hearsay. Nor does it say anything about the commissions having been sealed. Only John Marshall could testify to that point. In the end, the untimely Kimball affidavit does not appear to have been accepted by the Court.
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The factual record supporting Marbury's petition, especially if one ignores the untimely Kimball affidavit, is very thin. The president did not appoint Marbury until March 2, 1801. The Senate, acting in executive session, did not confirm Marbury, his forty-one justice-of-the-peace colleagues, and the numerous other newly
appointed D.C. officials until sometime on March 3. We know that Adams went to bed at nine p.m. on the evening of March 3 in order to catch the 4:00 a.m. coach out of town. We know that in the short period between Senate confirmation and Adams's bedtime, a river of commissions had to be signed by President Adams in the White House and shuttled to John Marshall at the State Department for signing, sealing, and delivery. We know that the paperwork was being prepared in the absence of the chief clerk, Jacob Wagner, who was then working for president-elect Jefferson, and in two locations a quarter mile apart linked by an unlit dirt road. We know that Marshall had no time to do anything with the paperwork on March 4 because, wearing his chief-justice hat, he was busy accompanying Jefferson to the swearing-in ceremony, where he administered the oath of office. The fact is that we will never know whether Marbury's commission was actually signed by President Adams before he retired for the night or, if signed, whether John Marshall affixed the seal of the United States before time ran out. What we do know is that the only two witnesses with personal knowledge of whether Marbury's commission was duly signed and sealed—John Adams and John Marshall—failed to represent that the document was timely signed and sealed.

Act II concludes when, after due consideration of the factual issues raised at the evidentiary hearing, Chief Justice John Marshall solemnly accepts the word of his younger brother, James, that Marbury's missing commission had indeed been duly signed and sealed by John Adams and John Marshall before the expiration of Adams's term,
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even though James's affidavit says nothing about Marbury. Justice Moore joined the factual finding even though he was not present for the hearing. Can you say “banana republic”?

A Short Musical Hymn to the Rule of Law

Chief Justice John Marshall then leads the Court in a stirring, if somewhat partisan, hymn to the rule of law.
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Marshall announces that, under the rule of law, the Supreme Court is duty-bound to pass on the legality of President Jefferson's and Secretary of State
Madison's failure to deliver the commission to Marbury. Because, intones Marshall, Madison is under a clear legal duty to deliver the commission, he and Jefferson should be ashamed of themselves for flouting the rule of law.

Act III: Find the Missing Court

Act III begins as poor Marbury, all but drunk on the rule of law, holds out his hands for his commission, only to have John Marshall wallop him with a rolled-up copy of the Constitution. Marshall tells the stunned Marbury that, despite his clear legal rights, the Supreme Court can do nothing for him because his fancy lawyer had mistakenly sought relief directly from the Supreme Court in reliance on an unconstitutional 1789 statute that mistakenly granted the Supreme Court power to hear Marbury's case immediately as part of its “original” jurisdiction. Since, rules Marshall, the 1789 statute gave the Supreme Court more power than the Constitution allows, the statute was unconstitutional. Marshall explains that Marbury's lawyer should have started in a lower court and then appealed to the Supreme Court, invoking its “appellate” jurisdiction.
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The farce concludes with a bewildered Marbury on his hands and knees frantically searching for the lower court where he should have filed his case. Guess what? There was no lower court. The joke's on Marbury—and on us. Marbury had to be sacrificed to allow John Marshall to declare a law unconstitutional for the first time.

If Marbury had actually filed his case in the lower courts as Marshall's decision required, he would have faced a procedural double whammy. No lower federal court would have had power (federal question jurisdiction) to decide his claim that Madison was violating federal law by refusing to deliver the commission. And even if such power had existed, no lower federal court would have had power to issue an affirmative court order to Madison, because in 1803 lower-court federal judges were not authorized to issue a mandamus, a court order requiring an official to perform a specified official action.

Once Congress had repealed Adams's Midnight Judges Act on March 8, 1802, lower federal courts no longer had power to decide cases involving disputes over federal law (federal question jurisdiction). Believe it or not, after the Midnight Judges Act was repealed, only state courts could decide cases governed by federal law. Lower federal courts would not be given that power again until 1875. In the absence of some backup story about why a lower federal court was empowered to decide his case, it would have been futile for Marbury's lawyer to have filed his federal law case in a lower federal court just as Congress was getting ready to repeal the court's power to decide federal cases. The logical backup story for Marbury in 1801–2 would have been Congress's grant of power to the lower federal courts to decide cases when the opposing parties were from different states (diversity jurisdiction). But diversity jurisdiction was unavailable to Marbury in 1801 because the District of Columbia, where Marbury lived, was not treated as a state by Congress for the purposes of diversity jurisdiction until 1947. In 1801, Marbury would not have been deemed a citizen of any state for the purposes of invoking the power of a federal court under diversity jurisdiction.

Even if he could have figured out a way to get into lower federal court, Marbury would not have been able to get the affirmative court order he needed. In 1801, only the Supreme Court had clear power to issue an affirmative order of mandamus because the 1789 Congress had explicitly bestowed the power on the Supreme Court. Congress would not grant mandamus power to the lower federal courts until 1962.

Nor could Marbury have sought relief in state court. In 1801, state courts lacked power to give orders to a federal official. Indeed, they probably lack the power today. It might have been possible for Marbury, as a resident of the District of Columbia, to have sought relief in the new D.C. Circuit Court, which had survived repeal of the Midnight Judges Act. As a practical matter, though, the D.C. Circuit was off-limits, because one of the circuit judges was none other than James Marshall, John Marshall's younger brother, who
had broken into the State Department in an effort to deliver the justice-of-the-peace commissions on the day of Jefferson's inauguration. I assume that even John Marshall wouldn't have had the chutzpah to decide an appeal from his brother involving factual findings about his own conduct in putatively placing the seal of the United States on Marbury's commission before Adams left office. Most important, though, William Kilty, chief judge of the D.C. Circuit Court, was a staunch Jeffersonian who got the job because Adams and Marshall ran out of time to fill it. Moreover, while the Supreme Court eventually upheld the D.C. Circuit's power to grant affirmative relief in 1838, that power was far from clear in 1801.
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The ACLU test-case lawyer in me says that in December 1801, Charles Lee was right in deciding that for Marbury it was the Supreme Court or nothing. It turned out to be nothing. In stating that an alternative forum existed, Marshall was just blowing smoke.

A Requiem for the Invention of Judicial Review

A solemn Chief Justice John Marshall then turns to the audience and seeks to justify judicial review. He insists that the Supreme Court was obliged to turn Marbury away out of respect for the rule of law despite his “clearly established” legal rights, because the 1789 statute that gave the Supreme Court power to decide cases like Marbury's violated the Constitution and was therefore unenforceable.
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But hold the applause. First read Article III, which lays out the power of the Supreme Court, and judge for yourself whether the chief justice protests too much. The two relevant sentences of Article III provide:

In all cases
affecting Ambassadors, other public Ministers and Consuls
, and those in which a State shall be a party, the Supreme Court shall have original Jurisdiction. In all the other Cases . . . 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
.

Chief Justice John Marshall, the first constitutional literalist, argued that because Marbury was neither an ambassador, a public minister, nor a consul, his case could not be heard by the Supreme Court as an original matter, no matter what Congress said in 1789—although it still remains unclear to me why Marbury's case did not “affect” Madison in his capacity as a “public Minister.”

Marbury responded that the concluding phrase, “with such Exceptions and under such Regulations as the Congress shall make,” provided Congress with flexibility to move Supreme Court cases back and forth between appellate and original jurisdiction.

Marshall insisted, however, that the “Exceptions and Regulations” language applied only to the second quoted sentence dealing with appellate jurisdiction, which would give Congress the power to remove cases from the Supreme Court's appellate jurisdiction, but not to add them to the Court's original jurisdiction. In fairness, Marshall's reading has a slight grammatical edge because the use of a comma instead of a semicolon to introduce the exceptions-and-regulations language implies that it modifies only the sentence of which it is a part. But just as the use of capital letters in the Constitution is notoriously arbitrary, punctuation in 1787 was an art, not a science. The difference between a comma and semicolon is a thin reed on which to rest a reading of Article III that places the Supreme Court's appellate jurisdiction at the perpetual political mercy of Congress. Moreover, even if the exceptions-and-regulations language applies only to the second sentence of Article III, the first sentence describing the Court's mandatory original jurisdiction may be read as describing a jurisdictional minimum, not as imposing a jurisdictional maximum, which would mean that additional power could be granted to the Supreme Court above the enumerated constitutional minimum.

In the end, a fair reading of the literal text of Article III simply does not tell us for certain whether Congress may (or even must) remove a case from the Supreme Court's appellate jurisdiction by shifting it to original jurisdiction instead of just dropping it into a legal black hole. Structurally, Marshall's reading is
a separation-of-powers disaster because it empowers Congress to eliminate the Supreme Court's crucial appellate jurisdiction without putting the appellate cases anywhere else. When President Bush and a complaisant Congress sought to strip the Supreme Court of appellate jurisdiction over appeals from detainees at the military prison at Guantánamo Bay, they were merely accepting the invitation issued by John Marshall in
Marbury
.

But wait, there's more. How could John Marshall, writing in 1803, have substituted his reading of an ambiguous Article III (drafted in 1787) for an equally plausible alternative reading that had obviously persuaded Congress in 1789 when it passed the law giving the Supreme Court power to hear cases such as Marbury's in the first place. Why would a Supreme Court justice in 1803 be in a better position to read Article III accurately than the 1789 Congress, many of whose members, including James Madison, were personally involved in the drafting, consideration, and ratification of Article III? And why adopt a reading of Article III that makes mincemeat of Congress's thoughtful policy decision in 1789 to trust the Supreme Court—and only the Supreme Court—with immediate affirmative judicial power over badly misbehaving federal officials? Most important, why adopt an interpretation of the Constitution leaving someone like Marbury with nowhere to enforce his “clearly established” legal rights? How does it advance the rule of law for Marshall to have adopted a reading of Article III that deprived a deserving litigant of any access to the courts and invited future Congresses to eviscerate judicial review by invoking Marshall's questionable reading of the “Exceptions and Regulations” Clause?