- roberturquhart37
- Mar 23
- 5 min read
Dear Friends, and all for an undelivered commission
It is emphatically the province of the judicial department to say what the law is.
Someone, I wish I could remember who, but someone who knows the law, and has a way with words answered all the blather from the White House about treasonous judges staying the Prez’s executive orders, by wishing that even if they didn’t go back to law school, could they at least read Marbury v Madison? I can’t remember if she directly referred to the feckless White House spokesperson. But that was good advice.
We at … a decent respect … value good advice. And although Marb v Mad has always been amongst our favorite bedtime reading we thought it might be time to go back and revisit the boys, William and James, and their squabble. What their squabble was all about is important to remember, but first, the decision itself.
Marbury v Madison (1803) establishes the principle of judicial review: the courts, state and federal, up to and including the Supreme Court, can judge whether or not executive actions, Acts of Congress, and of state legislatures, conform to the Constitution. The ruling thus establishes the Constitution as actual law and not simply a statement of principles. The passage from the ruling quoted above is the fundamental statement (it is inscribed on the walls of the Supreme Court). Although the decision itself has frequently been criticized, the principle of judicial review has never been seriously challenged from that day to this.
And maybe the reason for this is that it solves, at least in practical terms, a seemingly insoluble problem of the doctrine of the separation of powers: doesn’t someone, some power, need to have the final say? Marbury v Madison says yes! someone does, and that someone is the Constitution of the United States, the utterance of We the People. The Constitution stands above all three branches, and is equally binding on them all; BUT, it is a living someone, it can be amended. But it’s quite hard to amend.
The Constitution has the final say. The Constitution can be amended. The Constitution is hard to amend. Not foolproof – especially in the presence of what we now call bad actors – but surprisingly resilient.
So what was it all about? After Jefferson won the 1800 election Adams and the Federalists looked for ways to thwart the incoming administration. One of these was to commission sixty new judges and magistrates (sound familiar?). But they had very little time to do it, and each commission had to be written out on parchment, signed by Adams, and sealed by the Secretary of State, John Marshall. And then they had to be delivered to each appointee, collectively and derisively known by the Jeffersonians as the Midnight Judges, before the dread day, March 4, of Jefferson’s inauguration. Marshall called on his kid brother James to do the deliveries, and he did most of them on time but not all. Among the undelivered was that to William Marbury, a wealthy Maryland financier, and staunch Federalist.
Jefferson, now president, declared that the undelivered commissions, including Marbury’s, were void because undelivered, and he instructed Madison, now Secretary of State, not to deliver them. Marbury complained, and eventually took Madison to the Supreme Court. And now things do get truly interesting even for those who are not (as I am) Supreme Court decision nerds.
The Chief Justice of the Supreme Court just happened to be John Marshall, previously (and simultaneously) Secretary of State under Adams; and the one who had had to keep his right hand (assuming he was right-handed) sealing those commissions for all the Midnight Judges. As far as I can tell, no one raised any concern, nor even an eyebrow, about that.
→ judgemental interpolation: are we better or worse than they ←
Then, the decision again. Marbury based his case on Section 13 of the Judiciary Act, 1789, that established the federal judiciary system. The Court ruled that Marbury was right that his claims were justified by Section 13 … unfortunately, there was just a little problem, Section 13 itself was in conflict with Article III of the Constitution defining the jurisdiction of the Supreme Court. Section 13 gave the Court more power than it deserved.
The decision in which the Supreme Court established judicial review over all actions by the other two branches was based on striking down a section of a law that, the Court said, gave it too much power.
Immediately, the decision also led the Court to an unfortunate conclusion, although Marbury clearly had received an injury – the non-delivery of his commission – and therefore, according to the principle in common law inherited from Rome, ubi ius, ibi remedium (where there is a right there is a remedy), deserved restitution, the Court, according to the Constitution, simply could not give it to him.
Poor old Marbury never did get his commission, but he went on making lots and lots of money so he probably didn’t mind very much.
In the meantime, Marb v Mad holds as binding: courts low to high can review and challenge all laws and orders issued by legislature and executive, local, state, and federal. Why argue about it?
We all know the answer to that one: bad actors. Yes, we all know that, but we’re not acting according to what we so clearly know. We still behave as though these actors are normal ones, ordinary dramatis personae. They aren’t, they know it, we know it, but they are betting on us not acting on our knowledge. So far their bets are paying off.
We are all proceeding as usual, some good things, some bad things, hey, roll with the punches. Yes. Roll with the punches, but so as to punch back. The Trump regime aims to flatten opposition. Their assault on the entire judiciary branch, including the Supreme Court, has no legal basis, it’s just force. Do what we want, or else!
And the problem is what’s a poor US Supreme Court, or a Federal Appellate Court, or a Federal Court, or a State Supreme Court, or a State Appellate Court, or a State Court … what can they do? What if the federal executive just says no?
Hey, I’m just an elderly Marxist economist, you’re not expecting me to have the answer are you?
Love and solidarity, Bobby
This just in: The Trump Admin is threatening to shut down the Social Security Administration in its entirety because a judge has ruled that DOGE may not have access to SSA data, including all data of all participants in the Social Security system, including you and me. We have much more to say about this. Stay tuned.
And for the complete text of Marbury v Madison: