Foreword: A Silk Purse?

On March 2, 1801, President John Adams appointed forty-two persons to be justices of the peace in the District of Columbia. John Marshall, doubling as Secretary of State as well as Chief Justice, failed to deliver the commissions. Adams’s term expired. James Madison, Marshall’s successor as Secretary of State, withheld seventeen of the commissions. In 1802, William Marbury and three other appointees to this minor office brought mandamus against Madison in the Supreme Court. Madison was ordered to show cause why the writ should not issue. Congress abolished the June sitting of the Court. Only in 1803 was the case argued. In an opinion famous for its brilliance and its bluntness, Chief Justice Marshall wrote: “It is emphatically the province and duty of the judicial department, to say what the law is.” And he went on to say that if the law and the Constitution are in conflict, “the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” The conflict was resolved by the justices’ oath to uphold the Constitution. On that premise, Marshall held the Judiciary Act of 1789, authorizing the Supreme Court to issue writs of mandamus, violated Article III of the Constitution and was therefore void. The court was without jurisdiction to hear Marbury’s suit. The icing on the cake – John Marshall’s special brand of icing – was that the side that hated his principle, Madison’s side, could not appeal his conclusion because it had won the case.