President George Bush frequently complains about “activist judges,” most notably in calling for a constitutional Amendment to “protect” marriage. A future article — already partially written — will look more closely at the purpose of the Constitution and explain why such a constitutional Amendment is anathema to that purpose.

This article will be the first of a two-part series on the issue. This first article will set the stage because before we can talk about activist judges, we have to know where judges fit into the system of government created by the Constitution of the United States and take a look at what it means to say — as Chief Justice John Marshall said — that the United States is “a government of laws, and not of men.” (Marbury v. Madison, 5 U.S. 137, 163 (Cranch) (1803).)

The Establishment of the Judicial Branch of Government

In the late 1700’s, the United States did not exist. Where the United States would one day stand were 13 colonies, each having been structured around similar, but slightly different, British systems of government. Indeed, by the late 1700’s, although some of the colonies had originally been settled by people from other European countries, these were British colonies, part of the British Empire, and ultimately ruled from England.

Over time, the similar complaints of these colonies against King George III drew them into a loose Union and on July 4, 1776, the Continental Congress of that Union signed a Declaration of Independence, officially throwing off the rule of the King and establishing the United States of America.

Among the reasons set forth for the Declaration — for the colonists felt the need to explain to the world why they were declaring themselves independent — the primary faults centered around the King and the officials of the King’s government having set themselves above the law. The King had refused to allow the passage of laws that were “wholesome and necessary for the public good.” He had dissolved houses of representatives when they opposed “his invasions on the rights of the people.” The King “obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.” He “made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.” In short, the primary complaints concerned the absence of the rule of Law. The government of the King was essentially without control. It was, essentially, a government of men, and not of law.

When, in 1789, the Constitution of the United States took effect — the Articles of Confederation ratified in 1781 having been found ineffectual in meeting the needs of the nascent nation — Articles I and II of that document set up, and established limitations upon, the Legislative and Executive branches of the new government, while Article III established a Judicial branch.

Article III specifically established a Supreme Court of the United States and gave to that Court — and that Court alone — “the judicial power of the United States.” Remembering the abuses of King George III of England, the very first section of Article III stated that “[t]he judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” Under the new Constitution, no longer would it be possible for the head of a government to remove a judge from his position, or reduce his pay, simply because the judge did not do what the head of the government wanted him — and, nowadays, our executive ruler is still always male — to do.

One thing Article III did not expressly do, however, was explain how the Courts were to exercise the judicial power of the United States. This is perhaps because the colonists did not themselves have a clear understanding of where the Court fit into the picture. As a result, the responsibilities and operations of the Court were not as carefully delineated as those of the other two branches of government. For all the import and reverence of law at that time, it was — partly for this reason — not fully “fleshed out” as a co-equal branch of the government. That’s where the seminal case of Marbury v. Madison comes in.

Marbury v. Madison

The facts of Marbury are really quite simple.

The Federalist Party, led by President John Adams, had just been resoundingly defeated by Thomas Jefferson and his Democrat-Republicans. (Note that there is no real relation between this party and either the Democrats or Republicans of today.) In a series of “midnight appointments,” Adams appointed Marbury, among others, to justice of the peace positions throughout the District of Columbia. John Marshall, Adams’ Secretary of State, who had just been appointed Chief Justice of the Supreme Court of the United States, was responsible for delivering the documents detailing these appointments, but for reasons not important here, he was unable to do so before Thomas Jefferson took office the next day.

Jefferson ordered his Secretary of State, James Madison, not to deliver the documents; Marbury and some others were essentially denied their offices. As a result, Marbury asked the Supreme Court of the United States — now headed by Chief Justice John Marshall — for a writ of mandamus, a court order, requiring Madison to deliver the appointments.

The first thing that happened in Marbury — glaringly demonstrating the lack of co-equality of the Court with the other branches of government at that time — was that Marshall issued an “order to show cause” (in other words, the parties were to come into Court to argue whether a mandamus should be given) and Madison did not even bother to show up; in essence, he thumbed his nose at the Supreme Court. The Court proceeded to hear the case anyway.

Among the questions the Court considered, they first examined whether Marbury had any right to the commission for which he sought the Court’s assistance. To answer to this question, the Court looked to the Constitution and noted that in accordance with the second section of Article II, “the president shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for.” (Marbury, supra, 5 U.S. 137 at p. 155; see also, U.S. Const. art II, § 2.) After detailed discussion of the steps involved in receiving an appointment from the President, the Supreme Court held that Marbury had been appointed by the President and had a vested legal right, “protected by the laws of his country[,]” which, because it was withheld, was violated.

The Court went on to state that,

The very essence of civil liberty 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. Marbury, supra, 5 U.S. 137 at p. 163.

This being the essence of civil liberty, it was also the raison d’être of the government of the United States, for as the Court further noted,

The government of the United States has been emphatically termed a government of laws, and not of men. [And i]t will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested right. Marbury, supra, 5 U.S. 137 at p. 163.

But perhaps the details of this particular case were such that no remedy for his loss was available to Marbury? The Court next considered several possibilities. Maybe the commission was not worth anything, so that Marbury’s loss was properly categorized as a “damnum absque injuria — a loss without injury.” (Marbury, supra, 5 U.S. 137 at p. 164.) No, that couldn’t be it, because the right to hold an office for a period of five years carries with it some value, value which is denied to the potential office-holder when he is denied the right to his office although he was appointed. (Ibid.)

Maybe because it was a political appointment, carried out by the political — not the judicial — branches of the government, it was not reviewable? The Court rejected this idea. No one would contend that the head of a department of the United States could follow his own whim or fancy in deciding whether or not to uphold the law.

[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems . . . clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy. Marbury, supra, 5 U.S. 137 at p. 166.

So the Court decided that Marbury was appointed to the position of justice of the peace by the President of the United States (Adams) and, once appointed, the President of the United States (although now Jefferson) could not revoke the appointment because of the protections afforded a free and independent judiciary by the Constitution of the United States. Additionally, he was entitled by the laws of the country to a remedy.

The only question was, to what kind of remedy was he entitled? Was he, in fact, entitled to a writ of mandamus issued by the Supreme Court of the United States to then-Secretary of State Madison? This, the Court said, was dependent upon both the nature of the writ and the power of “this court.” (Marbury, supra, 5 U.S. 137 at p. 168.) If, for example, the writ was one which would “intermeddle with the prerogatives of the executive,” that is, an interference with the “perform[ance of] duties in which they [the executive officers] have discretion,” the writ would not be one which the Court could issue. But where a ministerial duty, rather than a discretionary act, was at question, such that the law itself prescribed what needed to be done, a court would not be overstepping its bounds by the issuance of a writ of mandamus. Such was the case here, where the Secretary of State, Madison, had a ministerial duty to record and transmit the documents which provided evidence of an appointment that already belonged to Marbury from the moment President Adams had signed it.

This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired, Whether it can issue from this court. Marbury, supra, 5 U.S. 137 at p. 173.

Citing Article III of the Constitution, the Court notes that the judicial power extends “to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.” (Marbury, supra, 5 U.S. 137 at pp. 173-174.)

Furthermore, the Court states, if it had been left entirely to the will of the legislature to determine the workings of the judicial power among the supreme and inferior courts, it would not have made sense for Article III to say anything about these powers; it would have been enough for the Constitution merely to establish the courts and then to leave it up to Congress to decide how they were to work. “The subsequent part of the section is merely surplusage, is entirely without meaning, if such is to be the construction.” (Marbury, supra, 5 U.S. 137 at p. 174.)

What is happening here is that Marshall, writing for the Court, is about to take on the Judiciary Act of 1789, passed by Congress to establish the federal court system. He is going to declare it — or, rather, part of it — unconstitutional!

It is at this point, in law school, that a professor tells us how clearly this demonstrates the genius of Marshall. Remember that at the start of this case, Madison chose to ignore the Court. And he did so with the backing of Jefferson, the President, who had himself ordered that Marbury’s commission be withheld. If Marshall had simply issued an opinion that Marbury had a right to his commission and issued a mandamus, Jefferson and Madison may very well have ignored him — and the Judicial Branch of government, including the Supreme Court, might have remained forever weak in relation to the other branches of government. Instead, Marshall affirms Marbury’s right to his commission, but by invalidating the section of the Judiciary Act (specifically, § 13) which purported to give the Supreme Court the right to grant a writ of mandamus, not only avoids the potential embarrasment of a further snub from Jefferson and Madison, but concomitantly affirms the Court’s right to review the acts of the other branches of the government for constitutionality.

The Supremacy of the Constitution

The Court makes a determination that there is a conflict between what the Constitution says it may do, in Article III, and what Congress says it can do, in the Judiciary Act of 1789. This raises a question.

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. Marbury, supra, 5 U.S. 137 at p. 176.

The Court’s argument, penned by Marshall, is so eloquent from this point on that it is almost a pity to summarize it; you really have to read it yourself. (Those interested will find the relevant portion starting near the top of page 176 and continuing through to the end of the opinion.) What it boils down to is that the power of the government comes from the People. Since it would be difficult, if not impossible, for the People to gather together to establish the way they wanted the government to operate, when they did do this, they went to the trouble of writing it down in a Constitution. The Constitution places certain limits upon the government. Yet, if the government could pass laws that conflicted with the Constitution whenever it wanted to do so, it would be as if there was no Constitution. That fact, combined with the fact that the People took the trouble to haggle over the words of the Constitution in that sweaty old Philadelphia building where they held their Constitutional Convention, would seem to indicate that the Constitution was to have meaning, supremacy and permanency.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. Marbury, supra, 5 U.S. 137 at p. 177.

Furthermore,

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. Marbury, supra, 5 U.S. 137 at pp. 177-178.

Ultimately, says the Court, “a law repugnant to the constitution is void; and . . . courts, as well as other departments, are bound by that instrument.” (Marbury, supra, 5 U.S. 137 at p. 180.)

One instructor of mine noted that this was a fight between the Executive and the Judicial branches, but that it was the Legislative branch that got the bloody nose. If that’s true, though, it was not, nevertheless, without precedent. In the battle for ratification of the Constitution itself, Alexander Hamilton, writing in Federalist No. 78, had stated that the constitutional limitations upon the other branches of government were in the safekeeping of the judiciary.

A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people [in the founding of the country by a constitution] to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. The Federalist No. 78, at 466 (Alexander Hamilton) (Clinton Rossiter, ed., 1961), emphasis added.

The Federalist Papers, of course, were a series of documents written by Alexander Hamilton, John Jay and, ironically, James Madison (the very same Madison who is the Secretary of State to whom Marbury wanted the Supreme Court to issue a mandamus) in the fight for ratification of the Constitution. These eighty-five articles were intended to explain and make the arguments that would convince the People of the 13 colonies — heretofore a loose Confederation of States — to vote to constitute a new and more powerful “federal republic.” Federalist Papers No. 78 through 83 explain the workings of the Judicial Branch under the Constitution.

Both the Federalist Papers and the Supreme Court of the United States in Marbury v. Madison indicate that “it is emphatically the province and duty of the judicial department to say what the law is.” (Marbury, supra, 5 U.S. 137 at p. 177; The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).) For as the Supreme Court put it, “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” (Marbury, supra, 5 U.S. 137 at p. 177.)

With that understanding of where judges fit into our system of government, the next article in this series will take a look at “The Problem of Activist Judges.”