At the time of Marshall?s appointment it was generally considered that the Supreme Court was the one
At the time of Marshall’s appointment it was generally considered that the Supreme Court was the one department of the new government, which had failed in its purpose. John Jay, the first chief justice, who had resigned in 1795, had just declined a reappointment to the Chief Justiceships on the ground that he had left the bench perfectly convinced that the court would never acquire proper weight and dignity, its organization being fatally defective. The advent of the new Chief Justice was marked by a change in the conduct of business in the court.
Since its organization, following the prevailing English custom, the judges had pronounced their opinions seriatim. But beginning with the December term 1801, the Chief Justice became practically the sole mouthpiece of the court. For eleven years the opinions are almost exclusively his, and there are few recorded dissents. The change was admirably adapted to strengthen the power and dignity of the court. The Chief Justice embodied the majesty of the judicial department of the government almost as fully as the President stood for the power of the executive.
That his associates acquiesced this change in without diminishing their goodwill towards their new chief is testimony to the persuasive force of Marshall’s personality; for his associates were not men of mediocre ability. After the advent of Justice Joseph Story the practice was abandoned. Marshall, however, still delivered the opinion in the great majority of cases, and in practically all cases of any importance involving the interpretation of the Constitution. During the course of his judicial life his associates were as a rule men of learning and ability.
During most of the time the majority were the appointees of Democratic presidents, and before their elevation to the bench supposed to be out of sympathy with the federalist ideas of the Chief Justice. Yet in matters pertaining to constitutional construction, they seem to have had hardly any other function than to add the weight of their silent concurrence to the decision of their great chief. Thus the task of expounding the Constitution during the most critical period of its history was his, and it was given to him to preside over the Supreme Court when it was called upon to decide four cases of vital importance: Mar bury v.
Madison, McCulloch v. Maryland, Cohens v. Virginia and Gibbons v. Ogden. In each of these cases it is Marshall who writes the opinion of the court; in each the continued existence of the peculiar Federal system established by the Constitution depended on the action of the court, and in each the court adopted a principle which is now generally perceived to be essential to the preservation of the United States as a federal state.
In Mar bury v. Madison, which was decided two years after his elevation to the bench, he decided that it was the duty of the court to disregard any act of Congress, and, therefore, a fortiori any act of a legislature of one of the states, which the court thought contrary to the Federal Constitution. Chief Justice Marshall delivered the opinion of the Court.
At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the Secretary of State to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the district of Columbia. No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the opinion to be given by the court is founded .
In the order in which the court has viewed this subject, the following questions have been considered and decided: 1st. Has the applicant a right to the commission he demands? 2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3d. If they do afford him a remedy, is it a mandamus issuing from this court? The first object of inquiry is — 1st. Has the applicant a right to the commission he demands?
It [is] decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state . . .. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but volatile of a vested legal right. This brings us to the second inquiry; which is 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
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. [The] government of the United States 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
By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.
The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.
The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable.
But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear, that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy. . . . It is, then, the opinion of the Court [that Marbury has a] right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.
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 The act to establish the judicial courts of the United States authorizes the Supreme Court “to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.
“The Secretary of State, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore incapable of conferring the authority, and assigning the duties which its words purport to confer and assign. The constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as congress shall, from time to time, ordain and establish.
This power is expressly extended 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. In the distribution of this power it is declared “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction. ”
It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the Supreme Court, contains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States. The government of the United States is of the latter description.
The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if those may at any time, pass these limits intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.
It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. In some cases, then, the judges must look into the constitution. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the constitution, which serve to illustrate this subject. It is declared, “no tax or duty shall be laid on articles exported from any state.
” Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law? The constitution declares that “no bill of attainder or ex post facto law shall be passed. ” If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?
“No person,” says the constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. ” Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these, and many other selections, which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! In Cohen’s v.
Virginia, in spite of the contention of Thomas Jefferson and the then prevalent school of political thought that it was contrary to the Constitution for a person to bring one of the states of the United States, though only as an appellate, into a court of justice, he held that Congress could lawfully pass an act which permitted a person who was convicted in a state court, to appeal to the Supreme Court of the United States, if he alleged that the state act under which he was convicted conflicted with the Federal Constitution or with an act of Congress.
In McCulloch v. Maryland, though admitting that the Federal government is one of delegated powers and cannot exercise any power not expressly given in the Constitution, he laid down the rule that Congress in the exercise of a delegated power has a wide latitude in the choice of means, not being confined in its choice of means to those which must be used if the power is to be exercised at all. Lastly, in Gibbons v.
Ogden, he held that when the power to regulate interstate and foreign commerce was conferred by the Constitution on the Federal government, the word “commerce” included not only the exchange of commodities, but the means by which interstate and foreign intercourse was carried on, and therefore that Congress had the power to license vessels to carry goods and passengers between the states, and an act of one of the states making a regulation which interfered with such regulation of Congress was, pro tan to, of no effect. It will be seen that in the first two cases he established the Supreme Court as the final interpreter of the Constitution.
The decision in McCulloch v. Maryland, by leaving Congress unhampered in the choice of means to execute its delegated powers, made it possible for the Federal government to accomplish the ends of its existence. “Let the end be legitimate”, said Marshall in the course of its opinion, “let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. ” If the decision in McCulloch v. Maryland gave vigor to all Federal power, the decision in Gibbons v.
Ogden, by giving the Federal government control over the means by which interstate and foreign commerce is carried on, preserved the material prosperity of the country. The decision recognizes what the framers of the Constitution recognized, namely that the United States is an economic union, and that business which is national should be under national, not state, control. Though for the reasons stated, the four cases mentioned are the most important of his decisions, the value of his work as an expounder of the Constitution of the United States is not to be measured by these cases alone.
In all, he decided forty-four cases involving constitutional questions. Nearly every important part of the Constitution of the United States as it existed before the amendments, which were adopted after the Civil War, is treated in one or more of them. The Constitution in its most important aspects is the Constitution as he interpreted it. He did not work out completely the position of the states in the Federal system, but he did grasp and establish the position of the Federal legislature and the Federal judiciary. To appreciate his work, however, it is necessary to see that it was the work not of a statesman but of a judge.
Had Marshall been merely a far-seeing statesman, while most of his important cases would have been decided as he decided them, his lifework would have been a failure. It was not only necessary that he should decide great constitutional questions properly, but also that the people of the United States should be convinced of the correctness of his interpretation of the Constitution. His opinions, therefore, had to carry to those who studied them a conviction that the Constitution as written had been interpreted according to its evident meaning.
Works Cited 1. Chief Justice John Marshals Theory of the Constitution.
