Looking at the Law Social Education 66(7), pp. 400-408 © 2002 National Council for the Social Studies may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and Marbury v. Madison: to what purpose is that limitation committed to writing; if these limits Bicentennial of a Land- may, at any time, be passed by those intended to be restrained? —Chief Justice John Marshall, mark Decision Marbury v. Madison (1803) The powers of the legislature are defned and limited; and that those limits

James H. Landman the federal judiciary authority to invalidate in the 1800 elections. The 1800 Republi- laws passed by popularly elected represen- can victory has been seen “as a victory for The year 2003 will mark the bicen- tatives, given that federal judges are neither democracy and as the culmination of a peri- tennial year of Marbury v. Madison, one of elected nor directly accountable to pub- od of popular involvement in politics.”2 This the most infuential opinions of the United lic opinion? What are the checks on the emphasis on populism, combined with the States Supreme Court. Authored by Chief judiciary’s power of judicial review? actions of the Federalists in their fnal days Justice John Marshall, Marbury v. Madi- This article frst discusses Marbury of power, set the stage for a battle between son affrmed the Court’s power of judicial v. Madison in its historical context and Jeffersonian Republicans and Federalists review—its ability to review congressio- then offers a sketch of the opinion’s legacy. over the federal judiciary. Chief Justice John nal and executive acts and overturn those Marbury v. Madison remains a vital part Marshall and Marbury v. Madison were at it deems unconstitutional. The case also of Supreme Court jurisprudence and con- the center of this battle. established the federal judiciary’s position tinues to shape our understanding of the After their defeat and before Jefferson’s as a co-equal, independent branch of the powers our Constitution grants—and the inauguration, Adams and the Federalist- federal government. limitations it places on—the branches of dominated Congress passed the highly Marbury v. Madison has had a last- government at both the state and federal controversial Judiciary Act of 1801 and ing impact on Supreme Court adjudica- levels. In its bicentennial year, as questions additional legislation concerning the Dis- tion, serving as a precedent for some of the about government power are again at the trict of Columbia’s judicial system. The Court’s most famous (Brown v. Board of center of national debate, Marbury v. Judiciary Act reduced the Supreme Court Education) and infamous (Dred Scott v. Madison deserves our study and attention from six to fve members, eliminated cir- Sandford) decisions. It also underlies cur- more than ever. cuit-riding duties for Supreme Court jus- rent debates over “judicial activism” and tices, reorganized the federal courts into “judicial restraint.” “A Masterwork of Indirection”: six judicial circuits, and created sixteen The study of Marbury v. Madison Marbury v. Madison in its Political Context federal circuit judgships, among other pro- opens numerous perspectives on American Marbury v. Madison has been described visions.3 The District of Columbia legisla- political and legal history. The case was at as a “masterwork of indirection, a brilliant tion created a circuit court of three judges to the center of debate between the Federal- example of [Chief Justice John] Marshall’s serve during good behavior (for life, unless ists and Jeffersonian Republicans, offering capacity to sidestep danger while seeming to impeached) and allowed the appointment insight into one of our nation’s frst great court it, to advance in one direction while his of as many justices of the peace as the presi- political struggles. opponents are looking in another.”1 As these dent deemed necessary to serve fve-year The power of judicial review estab- references to “danger” and “opponents” terms. lished by Marbury has since defned many suggest, Marbury v. Madison was decided The Judiciary Act was not without vir- of the most signifcant eras in Supreme in a climate of considerable political risk for tue. The arduous task of “riding circuit,” Court history—the Civil War, the Lochner- the Supreme Court. That the Court man- which required Supreme Court justices to era Court of the early twentieth century, the aged to emerge from this risk claiming the travel to serve assigned circuit court duties New Deal, the civil rights movement, and power of judicial review over congressional in addition to their Supreme Court duties, the Court’s recent turn toward federalism and executive actions is remarkable. had been an issue for the justices since the and states’ rights. And the issue of judi- Marbury v. Madison has its roots in the Court’s inception. The creation of new cial review raises questions central to our waning days of John Adams’s presidency and circuit court judgeships also ensured that understanding of America’s constitutional his Federalist Party’s domination of Con- judges who had presided over a case at trial democracy. How is the voice of the people gress. Thomas Jefferson and his Republicans would not hear the same case on appeal. But represented in our democracy? What gives had just defeated Adams and the Federalists the overwhelming perception of the Judi-

Social Education 14 A portrait by Alonzo Chappel of Chief Justice John Marshall.

AP Photo

November/December 2002 15 ciary Act was that the Federalists were try- were entitled to hold their offces “during refusal to deliver the commission clearly ing to load an expanded federal bench with good behavior.” Could these positions be violated that right, he seems to be leading Federalist judges before the party lost its eliminated through repeal of the authoriz- the Court toward a direct confrontation hold on Congress and the presidency—in ing legislation? with the Jefferson administration. It is only other words, pack the courts. Then, in December 1801, the Supreme in the fnal pages of the opinion, in which Before he left offce, Adams nomi- Court directed James Madison, Jefferson’s Marshall declares that Congress violated nated, and the Federalist-controlled Sen- secretary of state, to show cause why the the Constitution in granting the Supreme ate quickly confrmed, all sixteen federal Court should not issue a writ of mandamus Court power to issue the writ sought by circuit court judges (promptly labeled the (an order compelling executive offcers as Marbury, that this confrontation is evaded. “Midnight Judges”) authorized by the new well as the lower federal courts to perform The genius of the opinion is that it manages judiciary act. Republicans were infuri- a specifc action) directing Madison to to recognize the legitimacy of Marbury’s ated. Moreover, because the law reduced deliver commissions to William Marbury claim, chastise Jefferson’s administration the Supreme Court’s size, Jefferson would and two other coplaintiffs whom Jefferson for refusing to deliver it, and claim the right have to wait for the retirement of two Fed- had not reappointed to justice of the peace to defne constitutional limits on Congress’s eralist-appointed justices before he would positions. The “show cause” order signaled power, while denying the Supreme Court’s have the chance to make his frst Court that the Supreme Court was preparing to power to give Marbury the remedy he nomination. intervene in the controversy surrounding seeks. William Marbury was part of another Adams’s “midnight appointments.” Many Although Marbury is celebrated wave of “midnight appointments”—one of commentators have identifed the order as today primarily because it establishes the the forty-two justices of the peace nomi- the event that propelled the Republicans Supreme Court’s right of judicial review, in nated and confrmed for service in the Dis- into action against the Judiciary Act. On 1803, attention—and controversy—focused trict of Columbia in the fnal four days of March 8, 1802, Republicans passed an act much more on those sections of the opinion Adams’s term; and John Marshall himself that revoked the Judiciary Act of 1801 and asserting the Court’s right to inquire into the was the individual responsible for authen- eliminated the newly created sixteen circuit legality of certain actions taken by the execu- ticating and delivering his commission to judgships. They then passed a new Judi- tive. This is probably because the power of serve. Marshall had become John Adams’s ciary Act on April 29, 1802, which again judicial review over congressional legisla- secretary of state in 1800. In 1801, Adams required Supreme Court justices to “ride tion had been largely accepted in American nominated Marshall chief justice of the circuit.” jurisprudence by 1803. Precedents for Mar- Supreme Court, and the Senate confrmed The Court thus faced an administra- shall’s opinion include Alexander Hamil- him on January 27, 1801. He nonetheless tion that considered Adams’s appointment ton’s Federalist No. 78, asserting the duty of continued to serve as Adams’s secretary of of the District of Columbia justices of the courts of justice “to declare all acts contrary state for the remaining two months of the peace null and void, and that would likely to the manifest tenor of the Constitution president’s term. He was thus responsible refuse to recognize a Supreme Court order void”5; the opinions of several state supreme for placing the Seal of the United States on to deliver the commissions to Marbury and courts that had claimed power to review the Adams’s judicial commissions and deliv- his coplaintiffs. It also faced a Congress that constitutionality of actions by state legisla- ering them to the individuals concerned. was demonstrably hostile to a judiciary tures; and even statements by members of Marbury’s commission was among a hand- dominated by Federalist appointees, and Congress—including Jeffersonian Republi- ful that were sealed but not delivered before that had proved willing to use its powers cans—who, during debates on the repeal of Adams’s term expired. of impeachment against the judiciary. The the 1801 Judiciary Act, had acknowledged When Jefferson took offce, he refused to Supreme Court was in an apparent bind. the Supreme Court’s ability to declare acts acknowledge Adams’s commissions for the On the one hand, it could fnd in Mar- of Congress unconstitutional. District of Columbia justices of the peace, bury’s favor but demonstrate its weakness The Supreme Court had itself implic- although he reappointed twenty-fve of the by issuing an order that the executive branch itly claimed the power of judicial review individuals selected by Adams to a reduced would refuse to acknowledge. On the other, prior to Marbury. In Chisholm v. Georgia number of thirty positions (Marbury was it could deny Marbury’s claim but risk the (1793), some ten years before Marbury, one of seventeen of the Adams appointees appearance of submission to Congress’s Justice Iredell’s dissenting opinion asserted not reappointed by Jefferson). threatened power. that, in instances where an act of Congress Republican response to the 1801 Judi- The political turmoil underlying Mar- exceeded the authority prescribed by the ciary Act was a more complicated matter. bury v. Madison is barely visible on the Constitution, “any act to that effect would Although it was profoundly unpopular surface of Marshall’s opinion when he notes be utterly void, because it would be incon- with both Jefferson and the now Repub- “the peculiar delicacy of this case, the nov- sistent with the constitution, which is a lican-controlled Congress, there was no elty of some of its circumstances, and the real fundamental law, paramount to all others, immediate action taken against it. One of diffculty attending the points which occur which we are not only bound to consult, but the diffculties associated with repeal of the in it.”4 And as Marshall proceeds through sworn to observe.”6 act was that it had created federal judges his analysis, frst affrming Marbury’s legal Marbury v. Madison’s signifcance thus who, under Article III of the Constitution, right to the offce, and then asserting that lies not in the “invention” of the doctrine

Social Education 16 Provide students with copies of section 25 of the Judi- purse; no direction either of the strength or of the wealth ciary Act of 1789, which can be found at air.fjc.gov/ of the society; and can take no active resolution whatever. 3history/legislation_frm.html . Ask them to read it, and then It may truly be said to have neither FORCE nor WILL, hold a discussion about what that section means. How does the but merely judgment. . . .” jurisdiction of the Supreme Court today compare to the jurisdiction As a class, discuss Hamilton’s vision. Ask students to write a of the Court as originally proposed in section 25 of the 1789 act? paragraph about Hamilton’s view, in light of what they’ve learned from studying their case. Specifcally, do students believe that the Have students conduct research on “circuit riding.” What judiciary merely exercises judgment? Why or why not? was “circuit riding?” Who rode the “circuits?” What were the main objections to the practice? Does the practice still take Michelle Parrini and Jennifer Kittlaus are program managers and editors for the 4 ABA Division for Public Education in Chicago, Illinois. place in the United States? In other countries?

Provide students with some background information about President Franklin D. Roosevelt’s 1937 proposal 5to increase the number of U.S. Supreme Court justices. (A brief introduction may be found at the American Presi- dent documentary website, www.americanpresident.org/kotrain/ courses/FDR/FDR_Domestic_Affairs.htm. All other readings for this activity may be found at newdeal.feri.org/court.) Ask the entire class to read President Roosevelt’s address to Congress about it. Then divide students into groups. Ask one group to read the objections of the U.S. Senate Committee on the Judiciary to the proposal, and then report back to the rest of the class the reasons why the committee did not support the proposal. Ask other groups to each read one of the newspaper/magazine articles of the day, and report back on the arguments made in the article. Make sure that groups report on articles both for and against the proposal. (Visit newdeal.feri.org/court.) After each group has delivered its report, hold a discussion with the entire class about the pros and cons of the proposal. Describe the outcome. Ask students if they think the outcome was desirable and why.

Have students research a Supreme Court case. Ask them to summarize the issues raised by the case and the 6Court’s decision. Ask them also to consider the larger consequences of the decision, or what happened as a result of the decision. Three examples are Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), In re Gault, 387 U.S. 1 (1967), and United States v. Nixon, 418 U.S. 683 (1974). (Information about these cases is on the Oyez Project of Northwestern Uni- versity’s website, oyez.nwu.edu. For a student handout summariz- ing In re Gault, visit www.abanet.org/publiced/lawday/schools/ lessons/handout_gault2.html.) Then furnish students with the fol- lowing excerpt from Alexander Hamilton’s Federalist Paper No. 78, in which he discussed his vision for the judiciary: “Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dan- gerous to the political rights of the Constitution. . . . The judiciary . . . has no infuence over either the sword or the

November/December 2002 17 of judicial review, but in the embedding of This language provides the basis for With respect to Congress, Marbury has that doctrine frmly within American con- more recent Court pronouncements: that less to say, but subsequent decisions by the stitutional discourse. The political climate Marbury v. Madison “declared the basic Marshall Court demonstrated its willing- surrounding the opinion made Marshall’s principle that the federal judiciary is ness to give broad deference to Congress’s affrmation of judicial review risky, but that supreme in the exposition of the law of the ability to interpret and apply the Constitu- risk was mitigated by what constituted “an Constitution”; and that “ever since Mar- tion within its sphere of power. Most nota- act of judicial self-denial.”7 Marbury struck bury, this court has remained the ultimate ble is McCulloch v. Maryland, the case that down section 13 of the 1789 Judiciary Act, expositor of the constitutional text.”9 affrmed Congress’s power to charter a cen- which had given the Supreme Court “power Judiciary supremacy in constitutional tral bank for the nation. In upholding this to issue . . . writs of mandamus, in cases war- matters was, however, far less settled at the power, the Court offered an expansive read- ranted by the principles and usages of law, time Marbury was written than was the ing of the “necessary and proper” clause of to any courts appointed, or persons holding Court’s power to review for itself the con- the Constitution’s Article I, section 8, which offce, under the authority of the United stitutionality of a law it was being asked to grants Congress the power “to make all laws States.”8 Finding that “to issue such a writ apply in an individual case. The notion of which shall be necessary and proper for car- to an offcer for the delivery of a paper, is the federal judiciary’s supremacy as exposi- rying into execution” the powers explicitly in effect the same as to sustain an original tor of the Constitution is part of Marbury’s granted to Congress. “Where the law is not action for that paper,” Marshall held that legacy, but it also rests upon a foundation the 1789 act illegitimately extended the of trust in the Court’s ability to determine original jurisdiction of the Supreme Court cases impartially and in accordance with beyond the original jurisdiction defned the public’s interest. Emerging from the taint and limited by Article III, section 2 of the of partisan politics under the Federalist U.S. Constitution. As a result, the Supreme administration, the Court had to earn this Court lacked jurisdiction to provide Mar- trust over the course of many years. Welcome to Our Booth! bury a remedy for what the Court had iden- Marshall was careful in his Marbury The ABA Division for Public Education invites tifed as his violated right to his judicial opinion to acknowledge that the other all educators attending the 82nd NCSS Annual commission. branches of the federal government were Conference in Phoenix, Arizona, to visit our responsible for interpreting the Constitu- booth, where we will be giving away Marbury’s Legacy: From Judicial Review to tion within their own spheres of power. INSIGHTS ON LAW & SOCIETY Magazine Judicial Supremacy Marshall’s assertion that “it is emphatically Winner of the Association of Educational Pub- The Supreme Court’s ruling on the writ of the province . . . of the judicial department lishers (EdPress) Distinguished Achievement mandamus requested by William Marbury to say what the law is” is one of the most Award for Excellence in Educational Publishing limited the Court’s power in one fairly nar- frequently quoted lines from the opinion, Each Insights issue contains articles, instructional resources, and cartoons and illustrations that will row respect, but Marshall’s opinion claimed but Marshall also notes, help you build solid understandings about the for the Court a much more broadly defned The province of the court is, solely, law and legal system among your students. This power of judicial review. This aspect of to decide on the rights of individu- year’s three issues are devoted to the rights and the opinion and its main arguments can be als, not to inquire how the execu- limitations of youth under the Constitution (fall), summarized as follows. The Constitution tive, or executive offcers, perform the meaning and dynamics of the rule of law (winter), and the family and law (spring/summer). was the product of the people’s exercise of duties in which they have a dis- their original right to establish the prin- cretion. Questions, in their nature Reaching more than twenty-fve million people ciples for their government. This exercise political, or which are, by the con- each year, the ABA Division for Public Educa- represented a “very great exertion” (176) stitution and laws, submitted to the tion’s programs, publications, and resources are by the people, one that cannot and should executive, can never be made in this designed to educate and inform youth, under- graduate college and university students, and not be frequently repeated. The principles court. (170) adults about law and the justice system so that established by this “great exertion” are fun- they are better equipped to meet the challenge of damental, and their authority is supreme. Earlier in the opinion, Marshall clari- productive engagement in our democracy. Because “it is emphatically the province fes what he means by political questions: and duty of the judicial department to say “The subjects are political. They respect For more information about services we have to help you enrich your classroom, write to the what the law is” (177), if two laws confict, the nation, not individual rights, and being ABA Division for Public Education at 541 N. it is left to the courts to decide which is the entrusted to the executive, the decision Fairbanks Court, Suite 1500, Chicago, IL 60611- governing law. And in a case in which a law of the executive is conclusive” (166). As 3314; fax 312-988-5494; or visit our website at opposes the Constitution, “the Constitu- examples, Marshall cited the actions of an www.abanet.org/publiced. tion is superior to any ordinary act of the executive offcer performed according to legislature; the Constitution, and not such the president’s direction and the president’s ordinary act, must govern the case to which power to nominate to the Senate and to they both apply” (178). appoint the person nominated.10

Social Education 18 prohibited, and is really calculated to effect free state of Illinois and at Fort Snelling in United States citizens of the United States any of the objects entrusted to the govern- present-day Minnesota, then part of federal and of the state in which they reside. ment,” wrote Marshall in his opinion for territory that had been proclaimed free ter- Although Dred Scott dealt a serious the Court, “to undertake here to inquire ritory by the 1820 congressional act known blow to the Court’s reputation, the Court into the degree of its necessity, would be to as the Missouri Compromise. had by the 1850s established itself as an pass the line which circumscribes the judi- In 1850, Scott was declared free by a institution suffciently strong to withstand cial department, and to tread on legislative Missouri state trial court, whose decision the damage inficted by the opinion. And as ground. This court disclaims all pretensions was overturned by the Missouri Supreme the nation moved past the Civil War years to such a power.”11 Court. Scott’s lawyers then initiated a new and Reconstruction, the Court found within Following Marbury v. Madison, no suit in the federal courts, which eventually the language of the Fourteenth Amendment other congressional action was judged made its way to the Supreme Court in 1856. grounds from which it launched the frst unconstitutional for the remainder of In 1857, the Court ruled by a 7-2 major- period of Supreme Court history defned Marshall’s more than three decades as ity that it had no jurisdiction over the case primarily by the Court’s exercise of judicial chief justice, demonstrating the Court’s because, although states could grant rights review—the Lochner era. observance of the line circumscribing of citizenship to blacks, blacks were not Section one of the Fourteenth Amend- the judicial department. But the Supreme citizens of the United States with a right to ment provides that Court’s power of judicial review did not sue in the federal courts. No State shall make or enforce any lay dormant. In a series of decisions, the Having found that Scott lacked stand- law which shall abridge the privi- Court asserted its power to review the ing to sue in federal court, Chief Justice leges or immunities of citizens of decisions of state supreme courts and the Taney could have concluded his opinion the United States; nor shall any State actions of state legislatures when they for the majority. Instead, Taney went on to deprive any person of life, liberty, touched on issues involving the Constitu- address the constitutionality of the Mis- or property, without due process of tion or federal legislation. The supremacy souri Compromise. Concluding that “the law; nor deny to any person within of the federal government over the states, right of property in a slave is distinctly and its jurisdiction the equal protection in other words, became the focus of the expressly affrmed in the Constitution” and of the laws. Court’s power of judicial review, not the that “no word can be found in the Con- judiciary’s supremacy among the branches stitution which gives Congress a greater Part of a cluster of amendments passed of the federal government as interpreter of power over slave property, or which enti- in the years following the Civil War (which the Constitution. By granting broad discre- tles property of that kind to less protection also included the Thirteenth Amendment, tion to the federal Congress and the presi- than property of any other description,” discussed above, and the Fifteenth Amend- dent and by focusing the power of judicial Taney declared “that the act of Congress ment, confrming the right to vote regard- review on the states, the Court may well which prohibited a citizen from holding less of race, color, or “previous condition have circumvented fears of the power’s and owning property of this kind in the of servitude”), the Fourteenth Amend- countermajoritarian potential to undo the territory of the United States north of the ment was initially read solely in terms of actions of popularly elected representa- line therein mentioned, is not warranted the protections it guaranteed to former tives during the highly populist Jeffersonian by the Constitution, and is therefore void; slaves. But in the 1870s, a group of lawsuits and Jacksonian eras of the early nineteenth and that neither Dred Scott himself, nor known as the Slaughterhouse Cases argued centuries. Because the issues involved in any of his family, were made free by being for a more expansive understanding of the the states’ rights decisions involved only a carried into this territory; even if they had amendment. The suits challenged that a discreet segment of the population, and at been carried there by the owner, with the state-granted monopoly to a centralized times pitted one state against another, it was intention of becoming a permanent resi- slaughterhouse company infringed upon diffcult to argue that the Court’s decision dent.”13 In so doing, the Court made clear the right to labor of independent butch- in any one of these cases was subverting the that it would play no role in fashioning a ers that was included within the privileges interests of a national majority.12 judicial compromise for the slavery debate of citizenship protected by the Fourteenth When the Supreme Court again used its and placed signifcant constraints upon Amendment. A fve-member Court major- power of judicial review to strike down an Congress’s ability to negotiate compromise ity rejected this argument, but the seeds for act of Congress, it needed all the good will it between the free and slave states legisla- a more expansive reading of the amendment had accumulated during Marshall’s tenure tively. Dred Scott is frequently identifed as were sown in Justice Field’s dissent. Field as chief justice. The case was Scott v. Sand- a turning point in American history, setting argued that rights such as a right to labor ford, commonly known as the Dred Scott the nation frmly on course toward the Civil were part of the “privileges and immuni- decision, which is perhaps the most reviled War. It was ultimately rendered moot by the ties” enjoyed by United States citizens. opinion in Supreme Court history. The case Thirteenth and Fourteenth Amendments The Slaughterhouse Cases also identi- was initiated by Dred Scott, a slave living in to the Constitution, which, respectively, fed the battleground upon which Lochner- Missouri, who sued for his freedom based abolished slavery in the United States and era conficts between the Court and state on a four-year period he had spent living made all persons born or naturalized in the and federal legislators would be fought. On with his master, Dr. John Emerson, in the the one hand was the legislative prerogative

November/December 2002 19 to enact regulations protecting the health, sions. The scheme would have enlarged States v. Lopez that announced the Supreme safety, and morals of citizens, known at the the size of the court by up to fve mem- Court’s intention to defne an outer limit state level as the “police powers.” Loui- bers, ensuring that Roosevelt would have on Congress’s legislative authority under siana’s centralized slaughterhouse legisla- a majority on the Court sympathetic to his the Commerce Clause, striking down the tion, for example, was justifed by the need agenda. It is unclear whether the political Gun-Free School Zones Act of 1990 on to protect public health from potentially pressure put on the Court made it change its the grounds that the act “neither regulates a unsanitary slaughtering practices. On the course, but a key “swing vote” justice moved commercial activity nor contains a require- other hand were “privileges and immu- to form a majority that began upholding ment that the possession [of a frearm] be nities” of United States citizens, as well challenged New Deal legislation (dubbed connected in any way to interstate com- as the “life, liberty, or property” that the by journalists as “the switch in time that merce.”15 Fourteenth Amendment protected against saved nine”). More important was the furor Five years later, both United States v. state abridgement “without due process that erupted in response to the scheme, Lopez and Marbury v. Madison were cited of law.” With the “privileges and immu- which ultimately confrmed popular sup- in a case that affrmed a lower court decision nities” clause having been limited by the port for an independent Court (the scheme striking down the federal Violence Against majority in the Slaughterhouse Cases, the is cited as one of President Roosevelt’s few Women Act (42 U.S.C. §13981). In United “due process” clause emerged as the source political failures). States v. Morrison (2000), the Court again for “fundamental liberties” that the Court The Court’s use of judicial review in found that Congress had exceeded its Com- identifed beneath the language of the Con- the post-1937 years followed two prima- merce Clause authority when it enacted the stitution and the Fourteenth Amendment, ry paths. The frst was the protection of legislation. The Court rejected an addi- including the freedom to labor and the minority rights, based on a broad restate- tional Fourteenth Amendment claim on the liberty to contract. ment of what was meant by the Fourteenth grounds that the legislation was not directed In Lochner v. New York, decided in Amendment’s guarantee of equal protection at a state or state actor, but at individuals. 1905, a Court majority used the Fourteenth under the laws. This path is typifed by the In both Lopez and Morrison, the Court Amendment-based theory of “substantive Court’s 1954 decision in Brown v. Board rejected what it saw as an attenuated causal due process” to strike down a New York of Education, which effectively overturned chain between essentially noneconomic state law regulating the maximum number the doctrine of “separate but equal” that violent conduct and the aggregate effect of of hours bakers could work in a given week the Court had adopted in 1896 in Plessy v. that conduct on interstate commerce. The as an improper interference with both bak- Ferguson and struck down state “Jim Crow” congressional record cited in Morrison, for ers’ and their employers’ liberty of contract. laws that had mandated segregated public example, noted fear of interstate travel and a Perhaps the most controversial aspect of schools. diminution of national productivity as part the Lochner decision was the perceived The second path followed the Court’s of the commerce-related aggregate affect of usurpation by the Court of the legislature’s identifcation of a constitutional “right to violence against women. Such reasoning, authority to determine proper responses to privacy,” typifed by the Court’s decision the Court said, would essentially dissolve public issues unless the proposed legisla- in 1973’s Roe v. Wade to strike down state the boundaries between the national and tion is in clear violation of the Constitution. legislation prohibiting abortion. Decisions the local, and would erode the police pow- Today, this would be described as “judicial based on the right to privacy have been more ers that the Constitution had vested in the activism.” The Lochner majority, for exam- controversial over the long term than the states. ple, called into question arguments citing Court’s equal protection decisions; some the health risks faced by bakers, which commentators see in the right to privacy a Conclusion had supported the New York legislation. modern-day equivalent of the “substantive As this overview suggests, Marbury v. And, over the next thirty years, as the Court due process” rights defned by the Lochner- Madison and its legacy have played a cen- weighed “substantive due process” guaran- era Court, lacking an explicit foundation in tral role in shaping the Supreme Court’s tees against the “police power” legislation the Constitution’s text. Yet few today would powers and our perceptions of the Court. that was beginning to defne the modern- argue that, absent a constitutional amend- It has defned both “conservative” and day regulatory state, it was diffcult to detect ment, either the Congress or the executive “progressive” eras in the Court’s history. a consistent standard of review.14 branch has the right to ignore the Court’s The power of judicial review established The end of the Lochner era coincided holdings when interpreting or applying the by Marbury has enabled the Court to enact with the Court’s confict with the federal Constitution in its own sphere of power. and enforce revolutionary change in our Congress and the Roosevelt administra- The current Court has opened a new understanding of constitutional provisions, tion over “New Deal” reforms. Following path of judicial review in the areas of fed- as in Brown v. Board of Education’s reversal the Court’s review and invalidation of key eralism and states’ rights. Congress has for of the “separate but equal” doctrine, or to pieces of New Deal legislation, President many years tied much of its legislation to slow the pace of national change, as in the Franklin D. Roosevelt in 1937 threatened to a broad interpretation of its constitutional Lochner-era Court’s resistance to the new push through Congress a “court-packing” right to regulate interstate commerce. But regulatory state. This power has, not unex- scheme as an alternative to constitutional in 1995, Chief Justice William Rehnquist pectedly, drawn both criticism and praise amendments overriding the Court’s deci- authored a majority opinion in United over the Court’s history. But it has never

Social Education 20 ences, 1-800-257-5126 or www.flms.com. Provides an overview of this historic case.

CD-ROM “Marbury vs. Madison (1803).” Landmark Student Activities The Interpreters: An Interactive Look at the Supreme Court Cases, a project of Street Michelle Parrini and Jennifer Kittlaus Judicial Branch. Part of the “Branches of Law and the Supreme Court Historical Government” series. A Cambridge Educa- Society. www.landmarkcases.org/ tional Program, 1999. Available from Films marbury/home.html. Contains a wealth of Have students do some research to for the Humanities and Sciences, 1-800- resources and activities designed to help familiarize themselves with the back- 257-5126 or www.flms.com. Explains the educators teach the case. 1ground of Marbury v. Madison, 5 judicial branch’s organization, providing “Marbury vs. Madison (1803).” The James U.S. 137 (1803). Who was Marbury, who a step-by-step look at how decisions pass Madison Center at James Madison Univer- was Madison, and why did these parties through the system. Also discusses the sity. www.jmu.edu/madison/ end up in court? What were the events that reasoning behind the checks and balances marbury. Includes general information and caused this legal confict? What specifcally system. commentary about the case and its major players. did Madison refuse to do? Be sure to have Websites The Supreme Court Historical Society. www. students look into the “midnight judges,” “Basic Readings in U.S. Democracy.” U.S. supremecourthistory.org. The “Research- or “midnight appointees,” and discuss why Department of State International Infor- ing the Court” section contains extensive they were so controversial. Also have them mation Programs. usinfo.state.gov/usa/ information on the justices, including look into the political signifcance in this infousa/ biographies, papers, nomination hearings, case of the presidency’s transferring from facts/democrac/demo.htm. See “Part II: and bibliographies. See the “History of the President Adams to President Jefferson. Creating a Government” for an article on Court” section for a discussion of the Mar- As a class, examine the Supreme Court’s shall Court and Marbury v. Madison. Marbury v. Madison and the full text of the decision, and explain to students why the Court’s decision. “Thomas Jefferson on Politics & Govern- Court, despite saying that Marbury was “The Federalist Papers.” The Avalon Project at ment.” Compiled and edited by Eyler Rob- Yale Law School. www.yale.edu ert Coates. etext.lib.virginia.edu/jefferson/ entitled to his commission, claimed it was /lawweb/avalon/federal/fed.htm. Papers quotations/jeffcont.htm. Contains 2,700 not able to force Madison to deliver it to written in support of the ratifcation of the quotations from Thomas Jefferson’s writ- him. Talk about the Court’s claim that the Constitution. See nos. 76-78 for Hamilton’s ings. For Jefferson’s thoughts on judicial power to issue writs under the Judiciary Act discussion of the judiciary. review, see “III. The Structure of Republi- of 1789 was unconstitutional, and the sig- “Judicial Review.” FindLaw. caselaw. can Government.” nifcance this had in affrming the Supreme lp.fndlaw.com/data/ “White House History Journal.” The White Court’s power of judicial review—the power constitution/article03/13.html. House Historical Association. www.white- to review congressional and executive acts Provides a multifaceted look at judicial househistory.org/ and overturn those they deem unconsti- review, citing relevant Supreme Court 04_history/04_history.html. “Article VII. cases, scholarly debates, and guidelines Midnight Appointments” discusses the tutional. for its use. events and circumstances behind President “Landmark Judicial Legislation.” The Federal Adams’s last-minute appointment of judges. Ask students to take a look at the Judicial Center. air.fjc.gov/history/ summaries of the acts from the legislation_frm.html. Provides full text Court Cases 2“Timeline for Landmark Judi- of the Judiciary Acts of 1789, which Marbury v. Madison, 5 U.S. 137 (1803). cial Legislation” at the Federal Judi- established the federal court system, 1801, supreme.lp.fndlaw.com/supreme_ ciary Center website, air.fjc.gov/history/ which reorganized the federal judiciary court/landmark/marbury.html. Through legislation_frm.html. Ask pairs of students and established circuit judgeships, and this landmark case, the Supreme Court 1802, which abolished the circuit judge- asserted its power of judicial review. to create organizational charts about the ships and reorganized the federal courts. Ashwander v. Tennessee Valley Author- structure of the judiciary created by each ity, 297 U.S. 288 (1936). laws.fndlaw. act starting with the Judiciary Act of 1789 com/us/297/288.html. In his concurrence, through 1982. Ask each pair to report on the Justice Brandeis outlines conditions under structure of the courts under its particular which the Supreme Court will not deter- act. Distribute copies of the charts to stu- mine the constitutionality of legislation. dents. Hold a discussion with the entire class about how the federal courts have changed over time.

November/December 2002 21 been a power outside the control of the No. 78,” The Avalon Project at Yale Law School, other branches of government. The extrem- online at www.yale.edu/lawweb/ Resources avalon/federal/fed78.htm. ity of the Dred Scott opinion, for example, 6. David P. Currie, The Constitution in the Michelle Parrini and Jennifer Kittlaus was moderated by the Civil War amend- Supreme Court: The First Hundred Years, 1789- ments, while the president’s and Senate’s 1888 (Chicago, Ill.: Univ. of Chicago Press, Books 1985), 20. power to nominate and confrm justices to Clinton, Robert L. Marbury v. Madison and the court has sustained a link between the 7. Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law (Lawrence, Judicial Review. Lawrence, Kans.: Uni- views of our elected offcials and the views Kans.: University Press of Kansas, 1996), 55. versity Press of Kansas, 1994. Attempts to refected on the Court. 8.  Stat. 73, Chap. XX, Sec. 13; available online shed light on this historic Court decision, At the same time, judicial review has from the Federal Judicial Center at air.fjc.gov/his- which the author argues has been grossly ensured that the Supreme Court’s justices, tory/landmark/02a_frm.html. misinterpreted and misused by legal schol- once confrmed, have suffcient power to 9. Cooper v. Aaron, 358 U.S. 1, 18 (1958), and ars and historians. United States v. Morrison, 529 U.S. 598, 617 n. exert their independence from the political Currie, David P. The Constitution in the 7 (2000). See also Rachel E. Barkow, “More Supreme Court: The First Hundred Years, branches and enforce constitutional limits Supreme than Court? The Fall of the Political 1789-1888. Chicago, Ill.: University of on their powers. The Court’s supremacy in Question Doctrine and the Rise of Judicial Supremacy,” Columbia Law Review 102 (2002): Chicago Press, 1992. Takes a critical look constitutional interpretation rests primar- 241. at the Court’s frst one hundred years, ana- ily on popular respect and esteem for the 10. For a full overview of Marshall’s formulation of lyzing and evaluating decisions, while also Court’s opinions; that such supremacy is the “political question doctrine” in Marbury, see comparing and contrasting the work of the widely acknowledged today is indicative Barkow, “More Supreme than Court?”, 248-50. different eras. of the care with which the Court has gen- 11. McCulloch v. Maryland, 17 U.S. 316, 423 DeVillers, David. Marbury v. Madison: (1819). erally wielded its power of judicial review. Powers of the Supreme Court. Berkeley 12. See Barry Friedman, “History of the Counter- And that power today is as important as Heights, N.J.: Enslow Publishers, Inc., majoritarian Diffculty, Part One: The Road to 1998. Provides commentary on this his- ever. As the executive branch has sought to Judicial Supremacy,” New York University Law Review 73 (1998): 409-412. toric case, including a look at the long-term strengthen its ability to fght terrorism, the effects of the Court’s decision. federal judiciary has demonstrated its will- 13. Scott v. Sandford, 60 U.S. 393, 451-52 (1856); note that the offcial title of the case incorrectly Kahn, Paul W. The Reign of Law: Marbury v. ingness to balance the need for executive names Sanford as “Sandford.” Madison and the Construction of America. action against the limitations the Constitu- 14. See Paul Kens, “Lochner v. New York,” in The New Haven, Conn.: Yale University Press, tion has placed on executive power. Both Oxford Companion to the Supreme Court of the 2002. Argues that the idea that “the rule the district and appellate federal courts United States, ed. Kermit Hall (New York and of law is rule by the people” is a myth sus- Oxford: Oxford University Press, 1992), 509- tained by legal rhetoric. According to the have engaged in these deliberations over 511. the past year, and we can reasonably expect author, law “must be central to religious, 15. United States v. Lopez, 514 U.S. 549, 551 (1995). anthropological, and philosophical studies that a Supreme Court holding on the limits of American life.” of executive power will follow. James H. Landman is director of community Nelson, William E. Marbury v. Madison: The As the quote that opened this article programs for the ABA Division for Public Origins and Legacy of Judicial Review. declared, Marbury v. Madison was intend- Education in Chicago, Illinois. Lawrence, Kans.: University Press of Kan- ed to give purpose to the limitations on gov- sas, 2000. Studies and analyzes this land- ernment power that had been committed mark case, in a style both general readers to writing in the Constitution. Describing and students can understand. and enforcing those limitations has been Newmyer, R. Kent. John Marshall and the the ongoing work of the Supreme Court Heroic Age of the Supreme Court. Baton Rouge, La.: Louisiana State University ever since. G Press, 2002. Explores the events and expe- riences that shaped Chief Justice Marshall’s Notes constitutional interpretation. 1. Robert G. McCloskey, The American Supreme Perhac, Michael, and Mark A. Graber, eds. Court, 3rd ed. (Chicago, Ill.: University of Chi- Marbury Versus Madison: Documents cago Press, 2000), 40. and Commentary. Washington, D.C.: CQ 2. Barry Friedman, “The History of the Counter- Press, 2002. Discusses judicial review majoritarian Diffculty, Part One: The Road to Judicial Supremacy,” New York University Law from constitutional, political, and philo- Review 73 (1998): 371. sophical standpoints; also focuses on the 3. Discussions of the 1801 and 1802 Judiciary lasting impact of the Court’s decision. Acts are based on summaries of the legislation prepared by the Federal Judicial Center and are Films available online at air.fjc.gov/history/ Marbury v. Madison. Part of the “Equal legislation_frm.html. Justice Under Law: Landmark Cases in 4. Marbury v. Madison, 5 U.S. 137, 154 (1803). Supreme Court History” series. 30 min- Subsequent references will be made parentheti- cally by page number. utes. WQED Pittsburgh, 1987. Available from Films for the Humanities and Sci- 5. Alexander Hamilton, “The Federalist Papers:

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