Marbury v. Madison, 5 U.S. 137 (1803)

Commentary by Jon Roland

The dictum in this case has been the subject of a great deal of commentary, but before going on to adding some more, something should be said about the actual holding and decree, which are wrong. Marbury was claiming a property right in a commission as Justice of the Peace granted to him by the outgoing President John Adams as one of his final acts, against a refusal to accept delivery of the commission by Madison, as a cabinet official under President Jefferson, the successor to Adams. Chief Justice Marshall ruled that Marbury had such a property right, but that the Supreme Court lacked the constitutional authority to issue a writ of mandamus to Madison, and the Judiciary Act of 1789 was unconstitutional in assigning it original jurisdiction for such a writ of mandamus.

This decision must be regarded as political. Marshall was afraid of being impeached and removed from the Court if he ruled in favor of Marbury. Pressure was strong to do that for Justice Samuel Chase, who would be tried in the Senate two years later for his part in the Alien and Sedition Acts trials. So Marshall temporized in this case, but in so doing also delivered one of the more important dicta that would guide further jurisprudence ever since.

Did Marbury have a property interest in his commission? No, he did not. He would have had under the British monarchical constitution, but under the Constitution for the United States, there can be no property right in an appointment to a public office. Even if there were, the procedure established of granting a commission that did not become effective until delivered and accepted made the grant incomplete without the acceptance, just as a grant deed of real property is not complete until delivered and accepted by the grantee. Madison had the authority to refuse to accept delivery, and when he did, any rights Marbury might have had terminated. The right had not vested.

Does the Court have the authority to issue a writ of mandamus to an executive branch official? Of course it does. Any order of any court is an order to an executive branch official. It might be directed primarily at a civilian, but implicit is the authority to an official to enforce it if the subject of the order fails to comply.

On the other hand, Marshall is correct on one point. If the official refused to obey the order there is not much the court can do about it. At that point the only remaining remedy is removal from office, and perhaps prosecution after removal.

So, the Judiciary Act of 1789 was not unconstitutional on this point. However, the dictum explaining the duty of the court to rule a statute unconstitutional if it was in conflict with the constitution was sound, as far as it went. The problem was that it left the impression that this was the exercise of a power of the court that only the court had. The misleading statement was, "It is emphatically the province and duty of the judicial department to say what the law is." It is misleading because it connotes that as the "province" is is exclusive of the other departments. The logic of constitutional republican government is that everyone, not just the courts, and not just public officials, has the duty to enforce the law, and, where conflicts in the law arise, resolve those conflicts and apply the correct law. When one of the laws in conflict is the constitution, then the duty is of constitutional review, which is only judicial review when it is judges that happen to do it. It is not an exclusive power of the courts. It is a duty of everyone subject to the Constitution.

So what happens if the Supreme Court rules in a case that a statute is unconstitutional, but the Congress or the President disagrees with them? They are bound to respect the decision in that case, unless they have strong enough conviction of the wrongness of the decision to refuse to abide by it, but the ruling does not remove the statute from the books. It could still be enforced by the Executive in other cases. But the Court is indicating by its decision that it will not enforce the statute in other cases, and that any attempt to do so by the other branches will not be productive. Confronted with that refusal by the Judiciary to enforce, it is to be expected that the Executive will stop trying to enforce it, and the Congress will stop trying to fund it. It takes all three branches to cooperate in establishing and enforcing a law, and the refusal of any one of them defeats the effort.

The same principle extends to civilians. If jurors refuse to convict under a criminal statute that at least one of them considers to be unconstitutional, then the enforcement of the act fails, and it becomes a dead letter. If the required majority of the jury in a civil case fail to support the plaintiff in an action authorized by law, then that law becomes moot.

This also points to the conclusion that under a constitutional requirement for unanimous verdicts of twelve jurors in criminal trials, if the objective is to have a 50 percent chance of a prosecution succeeding in obtaining a guilty verdict, and the jury is selected at random from the population, then there needs to be at least 94 percent support for the criminal statute in the community. If there is not, then mathematically there is a better than 50 percent chance that in a random jury of twelve at least one of them will disagree with the law enough to refuse to convict someone of violating it. The choice of a jury size of twelve is not an accident of history. As it happens, human societies have historically had an average of about six percent of their populations who were disposed to delinquency if not disciplined by the other 94 percent, who tend by nature to not engage in delinquent behavior even without the sanction of law. However, whenever a majority of less than 94 percent has attempted to impose its morality on the remainder by criminal laws, the result has, in general, been counterproductive and even destructive of social cohesion and respect for law and lawmaking. This indicates that a constitution should require that any criminal laws be passed by a legislative majority of at least 94 percent.

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