Marbury v. Madison: A Bicentennial Symposium OUR MARBURY* 89 Virginia LR 1235 (2003) ** Louise Weinberg INTRODUCTION. 1236 I. CHIEF JUSTICE MARSHALL’S FIRST DECISION (AND HOW TO READ IT) . 1245 II. PROBING THE CONVENTIONAL NARRATIVE. 1260 A. Of Effrontery and Retreat. 1260 B. Burr. 1265 C. Of Guts and Federalism . 1267 D. Righteous Anger. 1272 E. Why Do We Think Jefferson Would Not Have Complied?. 1275 F. The Courage to Tangle with the Chief Justice. 1277 G. Stuart v. Laird . 1281 H. The Impeachment of Justice Chase. 1287 I. Noncompliance . 1294 J. Why Marbury Lost . 1296 III. MARBURY’S MISSING ARGUMENT: THREE FUNCTIONS OF THE HOLDING ON JURISDICTION . 1297 IV. MARBURY’S STRAINED AND IMPLAUSIBLE STATUTORY CONSTRUCTION . 1303 A. Charles Lee’s Jurisdictional Problem . 1303 B. What Statutory Construction? . 1310 C. The Question for Decision . 1316 D. How Jurisdiction Cases Are Decided . 1317 E. Disembodied Mandamus: The Alleged Precedents . 1321 * This paper was presented at the Annual Meeting of the Association of American Law Schools in Washington, D.C., Jan. 4, 2003. A faculty colloquium based on an earlier draft was presented at the University of Texas Law School. My thanks to co-symposiasts John Hart Ely, Robin West, Michael Dorf, Chris Eisgruber, and Ted White for valuable perspectives. I am grateful to Stuart Benjamin, Mitch Berman, Philip Bobbitt, David Cruz, Calvin Johnson, Doug Laycock, Sandy Levinson, Tony Lewis, and Scot Powe for generous comments and other helps. I would like to acknowledge the splendid resources now accessible to scholars. We have Maeva Marcus’s collection of documents on the history of the Supreme Court, including early unpublished opinions. With Charles Hobson’s publication in 2002 of Volume 11 of the collection of the papers of John Marshall long under his editorship, we now have this magisterial work in near completion, with Hobson’s particularly valuable notes. In addition, we have internet access to the Library of Congress, including such searchable collections as the 65,000 papers of George Washington. There are biographical and other materials available at the various websites of the United States Government. There are also the resources of the great university libraries. I have relied particularly on the University of Virginia’s open, easily accessed, searchable, and printable collection of the letters of Thomas Jefferson, displayed both in his original hand and in transcription, and on the electronic text collections of the Avalon Project at Yale. In citing to sources found on the internet I have tried to provide traditional hard copy sources in preference to URLs. ** Holder of the Bates Chair and Professor of Law, The University of Texas. F. Charles Lee’s Alternative Jurisdictional Hypotheses. 1331 G. Reaching for a Constitutional Question . 1335 H. “He Wrote It Backwards” . 1341 V. MARBURY’S STRAINED AND IMPLAUSIBLE CONSTITUTIONAL INTERPRETATION. 1349 A. A Curious Device . 1349 B. An Originalist Excursus: What the Exceptions and Regulations Clause Was About . 1356 C. Of Additions and Epicycles. 1370 D. The Power to Add is the Power to Destroy: Of Hazard and Accountability . 1374 E. Bullying the Court . 1379 F. Of Floors and Ceilings. 1382 G. Ah, The Recantation! . 1384 H. Vanishing in a Puff of Smoke. 1388 VI. SECURING THE APPELLATE POWER. 1389 VII. MARBURY’S UNCONVINCING SUPPORT OF JUDICIAL REVIEW . 1395 VIII. MARSHALL’S MARBURY . 1403 CONCLUSION . 1407 (2003) 89 Virginia LR 1236 INTRODUCTION THERE is a conventional narrative of Marbury v. Madison,1 a story we have been telling ourselves about the case. The story can be found in Beveridge’s great Life of John Marshall,2 and a few years earlier in Corwin’s writings.3 Parts of the narrative may trace back to more obscure (2003) 89 Virginia LR 1237 earlier sources.4 The background is the election of 1800. The Republicans have swept the political branches, but the Federalists are hunkered down in the judiciary. A partisan war on the judiciary ensues.5 The new Republican President, Thomas Jefferson, refuses to recognize some of 1. 5 U.S. (1 Cranch) 137 (1803). 2. 3 Albert J. Beveridge, The Life of John Marshall 50-156 (1919) [hereinafter 3 Beveridge, The Life of John Marshall]. 3. Edward S. Corwin, Marbury v. Madison and the Doctrine of Judicial Review, 12 Mich. L. Rev. 538 (1914) [hereinafter Corwin, Marbury and Judicial Review], reprinted in Edward S. Corwin, The Doctrine of Judicial Review (1962) (1914) [hereinafter Corwin, The Doctrine of Judicial Review]; Edward S. Corwin, The Establishment of Judicial Review (II), 9 Mich. L. Rev. 283 (1911) [hereinafter Corwin, Judicial Review (II)]; Edward S. Corwin, The Establishment of Judicial Review (I), 9 Mich. L. Rev. 102 (1910) [hereinafter Corwin, Judicial Review (I)]. 4. The narrative does not appear in works as late as Henry Flanders, The Life of John Marshall (1905) [hereinafter Flanders, John Marshall]; Allan B. Magruder, John Marshall (1885). 5. See, e.g., 2 George Lee Haskins & Herbert A. Johnson, History of the Supreme Court of the United States 136-81 (1981) (Chapter on “Jefferson’s Attack on the Federal Judiciary”); Edward S. Corwin, John Marshall and the Constitution: A Chronicle of the Supreme Court 53-85 (1919) [hereinafter Corwin, Marshall and the Constitution] (Chapter on “Jefferson’s War on the Judiciary”). For useful background, see James F. Simon, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (2002); Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971) [hereinafter Ellis, The Jeffersonian Crisis]; Donald O. Dewey, Marshall Versus Jefferson: The President John Adams’s last-minute judicial appointments—the so-called “midnight judges.”6 The Republican Congress embarks on a purge of the Federalist judiciary with a series of arbitrary impeachments. Meanwhile, Congress fires all the federal circuit judges by repealing7 the 1801 statute that created the federal circuit bench.8 To avoid an immediate challenge to this enormity, Congress shuts down the Supreme Court of the United States for the entire year of 1802. It is a constitutional crisis. (2003) 89 Virginia LR 1238 In the traditional account, the new Chief Justice, John Marshall, presides over a low-prestige Supreme Court.9 He wants to build it up, just as the political branches want to tear it down. Then along comes William Marbury. Although Marbury is not one of the new circuit judges, he is one of the midnight judges.10 Jefferson does not acknowledge Marbury’s appointment because Marbury’s commission was found in a batch of midnight judges’ commissions that were never delivered. As the story has it, John Marshall, under threat of impeachment himself, is badly frightened. Marbury’s case presents him with a dilemma. If he orders Secretary of State James Madison to deliver Marbury’s commission, Madison will not obey, and the Supreme Court will be a laughingstock. But if Marshall declines to order Madison to deliver, it will look as though the Supreme Court is backing down. The Court will still be a laughingstock. Either way, the Court will suffer a blow to whatever small authority it possesses, rendering it even more politically vulnerable. In Marbury v. Madison, so the story goes, Chief Justice Marshall dodges both horns of this dilemma and achieves a “strategic coup.”11 Marshall holds that the Supreme Court has no jurisdiction. Political Background of Marbury v. Madison (1970) [hereinafter Dewey, Marshall versus Jefferson]. 6. Cf. Letter from Thomas Jefferson to Mrs. John [Abigail] Adams (June 13, 1804), in 10 The Works of Thomas Jefferson 84, 85 (Paul Leicester Ford ed., 1905) (“I can say with truth, that one act of Mr. Adams’ life, and one only, ever gave me a moment’s personal displeasure. I did consider his last appointments to office as personally unkind.”). [Note, some editions of the Ford collection of Jefferson’s works bear the alternative title of “The Writings of Thomas Jefferson.” Since other collections of Jefferson’s papers tend to bear this last title, and since the edition of Ford to which I have access uses the word, “Works,” throughout these notes the cited series is referred to as “The Works of Thomas Jefferson.” ] 7. Judiciary Act of 1802 [“Repeal Act” ], ch. 8, § § 1-2, 2 Stat. 132 (Mar. 8, 1802) (repealing the provisions of the Circuit Court Act of 1801, ch. 4, 2 Stat. 89). 8. Judiciary Act of 1801 [“Circuit Court Act” ], ch. 4, 2 Stat. 89 (Feb. 13, 1801), repealed by Judiciary Act of 1802, ch. 8, § § 1-2, 2 Stat. 132. 9. See, e.g., William R. Casto, The Supreme Court in the Early Republic 249 (1995) (“[T]oday the early Supreme Court is usually dismissed as a mediocre collection of reasonably competent lawyers.”); 2 Haskins & Johnson, supra note 5, at 7 (arguing that the Court was a “relatively feeble institution during the 1790s”); see also Seriatim: The Supreme Court before John Marshall 1 (Scott Douglas Gerber ed., 1998) (arguing that it has been a mistake to neglect the early Court, in part because studying the early Court can tell us what the Supreme Court might have been like if Marshall had not put his stamp upon it). 10. Marbury had been named a justice of the peace for the District of Columbia, but his appointment had not been perfected by the delivery of an official commission. This presented the new Jefferson administration with the opportunity of treating it as null. The openings for justices of the peace had been created in that part of the organic law of the District of Columbia that organized its first system of courts. An Act Concerning the District of Columbia, ch. 15, § 11, 2 Stat. 107 (Feb.