The Great Decision (Sloan and McKean)

The Great Decision, which is the subject of this historical account, was rendered in the Supreme Court case of Marbury v. Madison. By any standard of judgement, the underlying dispute was trivial in the extreme — so trivial that no one even showed up to represent James Madison, the Secretary of State, who was the defendant in the case. Or, perhaps, the Jefferson Administration, by refusing to send a lawyer, was protesting the authority of the court to compel the President to do something he had decided not to do.

Chief Justice Marshall, who presided over the argument and wrote the court’s opinion, appeared to be uncomfortable with the absence of any lawyer representing the other side in what should have been an adversarial proceeding. So he invited anyone in the courtroom “who was disposed to offer his sentiments,” to speak up and make an argument for the other side. No one, among the few spectators in the tiny, dreary congressional committee room that had been allocated the nation’s highest court, responded to Marshall’s invitation. So only one side of the case was orly presented to the court.

The principle in question was whether the judicial branch of our tripartite government could constitutionally compel the executive brach to take an action that the law required. In other words, does the judiciary have the last word on whether the executive has obeyed the law? This question — critical to any democracy under the rule of law — persists to this day, though the Supreme Court seems to have resolved it in the favor of the judiciary in the Marbury case, at least in dictum.

The great decision was delivered by the Chief Justice, not in the congressional committee room, but rather in the parlor of a local hotel, where the justices were holding court to accommodate one of its members who had been stricken with gout.

The decision itself raises profound questions regarding its own legitimacy. The bottom line is that it struck down as unconstitutional an act of Congress giving it — the Supreme Court — the power to issue writes of mandamus as a trial court. The Constitution limited the power of the Supreme Court to act as a trial court — as distinguished from an appellate court — to cases involving ambassadors, ministers and consuls (which almost never occur) and cases in which “a state shall be a party” (also a rarely invoked basis). In all other cases, the Supreme Court “shall have appellate jurisdiction.” But Congress expanded the constitutional power of the Supreme Court by allowing it to issue mandamus as a trial court. Marshall’s opinion struck down that congressional expansion of the Supreme Court’s power as inconsistent with the Constitution.

Ironically, the act of Congress that was struck down had increased the power of the Supreme Court. So by declaring this law unconstitutional, the Supreme Court limited its own power — at least incrementally and in the short run. But it expanded its long term power qualitatively by asserting its authority to rule on the constitutionality of legislative (and also some executive) actions.

This comprehensive book includes as an appendix the Supreme Court’s actual decision in Marbury v. Madison. Despite the triviality of the specific issue in the case, the opinion in Marbury v. Madison plainly deserves its honored place in the national archives alongside the Declaration of Independence, the Constitution, and the Bill of Rights. These documents assert parchment pronouncements about rights in the abstract. Marbury v. Madison provides the essential mechanism for assuring that all the branches of the government operate under the rule of law and that no one in the country — even the President and the Secretary of State — are above the law.


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