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

But the exigency disclosed in this chapter required immediate action, notwithstanding the obstacles above set forth. The issue raised by the Republicans – the free hand of Congress, unrestrained by courts – must be settled at that time or be abandoned perhaps forever. The fundamental consideration involved must have a prompt, firm, and, if possible, final answer. Were such an answer not then given, it was not certain that it could ever be made. As it turned out, but for Marbury vs. Madison, the power of the Supreme Court to annul acts of Congress probably would not have been insisted upon thereafter. For, during the thirty-two years that Marshall remained on the Supreme Bench after the decision of that case, and for twenty years after his death, no case came before the court where an act of Congress was overthrown; and none had been invalidated from the adoption of the Constitution to the day when Marshall delivered his epochal opinion. So that, as a matter of historical significance, had he not then taken this stand, nearly seventy years would have passed without any question arising as to the omnipotence of Congress. 369After so long a period of judicial acquiescence in Congressional supremacy it seems likely that opposition to it would have been futile.

For the reasons stated, Marshall resolved to take that step which, for courage, statesmanlike foresight, and, indeed, for perfectly calculated audacity, has few parallels in judicial history. In order to assert that in the Judiciary rested the exclusive power 370to declare any statute unconstitutional, and to announce that the Supreme Court was the ultimate arbiter as to what is and what is not law under the Constitution, Marshall determined to annul Section 13 of the Ellsworth Judiciary Act of 1789. In taking such a step the Chief Justice made up his mind that he would sum up in final and conclusive form the reasoning that sustained that principle.

Marshall resolved to go still further. He would announce from the Supreme Bench rules of procedure which the Executive branch of the Government must observe. This was indispensable, he correctly thought, if the departments were to be harmonious branches of a single and National Government, rather than warring factions whose dissensions must in the end paralyze the administration of the Nation's affairs. 371

It was not, then, Marshall's declaring an act of Congress to be unconstitutional that was innovating or revolutionary. The extraordinary thing was the pretext he devised for rendering that opinion – a pretext which, it cannot be too often recalled, had been unheard of and unsuspected hitherto. Nothing but the emergency compelling the insistence, at this particular time, that the Supreme Court has such a power, can fully and satisfactorily explain the action of Marshall in holding this section void.

In his opinion the Chief Justice spoke of "the peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it." 372He would follow, he said, the points of counsel in the order in which they had been made. 373Did the applicants have a right to the commissions? This depended, he said, on whether Marbury had been appointed to office. If so, he was entitled to the commission which was merely the formal evidence of the appointment. The President had nominated him to the Senate, the Senate had confirmed the nomination, the President had signed the commission, and, in the manner directed by act of Congress, the Secretary of State had affixed to it the seal of the United States. 374

The President could not recall his appointment if "the officer is not removable." Delivery of the commission was not necessary to the consummation of the appointment which had already been effected; otherwise "negligence, … fraud, fire or theft, might deprive an individual of his office." But the truth was that "a copy from the record … would be, to every intent and purpose, equal to the original." 375The appointment of Marbury "vested in the officer legal rights … of his country," and "to withhold his commission is an act … not warranted by law, but violative of a vested legal right… 376

"The very essence of civil liberty," continues Marshall, "certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." Ours has been "emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right… 377

"The act of delivering or withholding a commission" is not "a mere political act, belonging to the executive department alone," but a ministerial act, the performance of which is directed by statute. Congress had ordered the Secretary of War to place the names of certain persons on the pension rolls; suppose that he should refuse to do so? "Would the wounded veteran be without remedy?.. Is it to be contended that the heads of departments are not amenable to the laws of their country?" 378

Would any person whatever attempt to maintain that a purchaser of public lands could be deprived of his property because a Secretary of State withheld his patent? 379To be sure, the President had certain political powers and could appoint agents to aid him in the exercise of them. The courts had no authority to interfere in this sphere of Executive action. For example, the conduct of foreign affairs by the Secretary of State, as the representative of the President, can never be examinable by the courts. But the delivery of a commission to an office or a patent to land was a different matter.

When Congress by statute peremptorily directs the Secretary of State or any other officer to perform specific duties on which "the rights of individuals are dependent … he cannot at his discretion sport away the vested rights of others." If he attempts to do so he is answerable to the courts. "The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority." The court therefore was empowered to decide the point; and held that Madison's refusal to deliver Marbury's commission was "a plain violation of that right, for which the laws of his country afford him a remedy." 380

But was this remedy the 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," 381for, 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." 383In 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.