Vol. 16 No.2 (February 2006), pp.133-138

 

ARGUING MARBURY V. MADISON, by Mark Tushnet (ed.). Stanford: Stanford University Press, 2005.  224pp.  Paper.  $19.95. ISBN: 0804752263.  Cloth.  $50.00. ISBN: 0804752265.

 

Reviewed by Robert Justin Lipkin, Professor, Widener University School of Law (Delaware).  Email: Robert.J.Lipkin [at] law.widener.edu.

 

Imagine one morning reading in your daily newspaper that on that very day the Supreme    Court of the United States will hear oral arguments in MARBURY v. MADISON. You make you way to the Court where, as luck would have it, you are escorted to a reserved seat. You can barely contain your eagerness when the Chief Justice intones: “The Court will now hear the case of WILLIAM MARBURY v. JAMES MADISON.”  Incredible you say? Well technically, and given the impossibility of time travel, yes. But Mark Tushnet and company have done the next best thing in ARGUING MARBURY V. MADISON, an intellectual “Jones” for any self-respecting Supreme Court junkie.

 

What distinguishes this collection of essays on MARBURY and the institution of judicial review from the raft of law review symposia celebrating the case’s two-hundredth anniversary is an actual transcript of an oral argument conducted by flesh and blood judges and advocates. Since Madison failed to show up in the original case, this “re-argument” is the closest and, to my knowledge, the only transcript of an oral argument we possess. The re-argument took place on February 14, 2003 at the Georgetown Law Center. Representing Marbury was Georgetown’s Mark Tushnet. David Strauss, of the University of Chicago, represented Secretary of State Madison. Harry Edwards and David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit and Sonia Sotomayor and Robert Katzmann of the U.S. Court of Appeals for the Second Circuit were the judges hearing the case.

 

ARGUING MARBURY v. MADISON is an important contribution to the literature on MARBURY v. MADISON, and perhaps more importantly, to the history and jurisprudence of judicial review. Predictably, but happily, controversial claims taken as canonical are made throughout the book. For one example, the first sentence in editor Tushnet’s introduction states that MARBURY “is taken as the origin of judicial review.” Tushnet then indicates—referring to Suzanna Sherry’s article—that “scholars have known for years that this understanding is wrong.” Both claims—that MARBURY is the origin of judicial review and that scholars have known for years that it is not—are overstatements. Scholars still debate the origin of judicial review and MARBURY’s significance in its development. Admittedly, and to generalize shamelessly, political scientists seem more inclined than law professors to dismiss MARBURY as the origin of judicial review. Some exemplary scholars, such as Sandy Levinson and to a lesser extent Bruce Ackerman, even suggest, unpersuasively in my view, that MARBURY was a [*134] rather unimportant case especially compared to the Court’s capitulation to the political branches the following week in STUART v. LAIRD. And indeed, they are correct if the only measure of the case is its political impact.  At the time, MARBURY had little political effect in establishing a powerful judiciary, while STUART v. LAIRD’s surrender to the Jeffersonians was politically breathtaking. But why restrict the measure of this case to its political significance at the time?  MARBURY’s significance lies in creating a guiding framework within which judicial review has been challenged and defended for centuries. So, it is no surprise that the controversy over MARBURY’s pre-eminence persists.

 

More important, Tushnet’s assertion overlooks the jurisprudentially and conceptually prior task of explaining just what is involved in designating a particular case as the “origin” of this practice. Does it mean that the case created judicial review from whole cloth? Or does it mean, more modestly, that the case presents the best judicial explanation of judicial review up until that time? If the Supreme Court itself never before explained judicial review in such detail, why does it matter in evaluating MARBURY’S importance that the constitutional culture at that time included the idea of some sort of judicial review or even that the Court engaged in judicial review early in its brief history? These and other questions need resolution for Tushnet’s claim to be substantiated. However, pining over the absence of a jurisprudential analysis of these contested issues should not detract from appreciating the utility of Tushnet’s introduction as a revealing lens through which to view the oral argument that follows. 

 

The transcript of the oral argument is illuminating despite suffering from the fate of almost all such transcripts. The reader must carefully piece together the advocates’ positions from their limited statements and from their often interrupted responses to the Court’s questions. Concise briefs submitted by each attorney might have heightened the effect of this simulation.

 

Counsel Tushnet’s position, as far as I can tell, is that a plausible interpretation of Section 13 of the Judiciary Act of 1789 and its underlying policies “taken as a whole makes it sensible to read the provision as authorizing this Court to issue a writ of mandamus in an original case” (p.14). Tushnet maintains, in effect, that the phrase “or persons holding office” is separable from the entire phrase “to any courts appointed or persons holding office” and thus no prior judicial action is required. In short, the second phrase in the disjunction itself can be read to warrant the Court’s issuing a writ of mandamus ordering the Secretary of State to deliver Marbury’s commission. And while this reading of the particular provision is not the most obvious one (or perhaps not even obvious at all), Tushnet contends that it is at least a plausible interpretation, which “makes sense structurally in terms of this statute . . . and makes sense as a matter of policy that Congress could reasonably make a judgment that issuing writs of mandamus to high federal officials should be something left to the [*135] judgment of this Court by conferring jurisdiction on” the Court to do so (p.15).

 

The central inquiry was whether Congress could authorize the Court to issue a writ of mandamus, a power not mentioned in Article III, thereby increasing the Court’s original jurisdiction. The colloquy between Marbury’s counsel and the Court reveal two arguments supporting this claim. First, and most familiar, is the argument that Article III, Section 2 provides a baseline for, and not a limit on, the Court’s original jurisdiction. While Congress cannot eliminate original jurisdiction in the textually specified categories, it may increase the Court’s original jurisdiction just as long as it maintains the baseline.

 

A second, more intriguing, argument is this. Since Congress can make exceptions to the Court’s jurisdiction by removing categories of cases from federal appellate review, Congress can also transfer these eliminated cases to the Court’s original jurisdiction. In counsel Tushnet’s words: “Article III, Section 2 identifies a universe of cases and divides that universe into two parts.  But the exceptions clause allows Congress to redraw the line, or shift a case out of the appellate jurisdiction and into the original jurisdiction” (pp.17-18). What could possibly justify such a remarkable position? According to Marbury’s counsel, Congress’ use of the exceptions clause to eliminate jurisdiction of these cases entirely “would raise troubling questions about ‘one Supreme Court’ [and] the notion of a single court that will define federal law for the entire nation” (p.18).  Hence, if Article III grants Congress the authority to remove a particular category of cases from the Court’s appellate jurisdiction, it must permit the Court to deposit these cases in the Court’s original jurisdiction.

 

Although this second argument is novel, as far as I am aware, when challenged by Judge Edwards, Marbury’s counsel retreats, as appellate attorneys are wont to do, to the first argument (p.17). The remainder of Tushnet’s argument concerns whether Marbury needs a statement from the Court concerning his commission, and if so, whether the case is ripe for judicial determination. Several interesting exchanges ensue about the nature of deciding issues such as these in the infancy of the Republic. At that point Marbury’s time runs out.

 

Counsel Strauss moves—well he really only suggests—that the Chief Justice recuse himself. The Chief Justice’s involvement in signing the commissions and his brother’s failure to deliver them certainly would warrant recusal today. After further jockeying about why Madison or his attorney failed to make an appearance in Court, Strauss announces the quite astonishing news that he, Strauss, was “dispatched by the future” to represent Madison. (If true, I may need to revise my earlier remark about the impossibility of time travel).

 

Once the argument addresses jurisdiction, Strauss explains that his client denies that Section 13 grants the Court jurisdiction in this case. The Secretary also denies the general power of the Court to declare statutes unconstitutional but seems tentatively to [*136] accept a “defensive” prerogative of constitutional review where any branch of government may decline to exercise power it denies it has under the Constitution (p.27). And this, in Strauss’ words, applies to “a category of cases specifically implicating the prerogatives of this Court in which I would say the Court may refuse to exercise powers” (p.29).

 

However, if the Court has no “general power . . . to declare acts of Congress unconstitutional,” what remedy exists for citizens harmed by unconstitutional governmental action? Remedies for such actions, according to Madison’s counsel, include the common law, and if Marbury was harmed he could sue for damages in a court having jurisdiction over such common law actions (p.27). Yet, this suggested remedy is virtually tantamount to precluding courts from redressing unconstitutional, statutory harms as well as governmental conduct prohibiting free speech or equal protection unless these harms are prohibited by the common law.

 

Strauss advances his client’s (as well as President Jefferson’s) departmentalist conception of American constitutionalism which maintains that each federal branch of government has the authority and responsibility to interpret the Constitution for itself, at least pertaining to its own constitutional powers. In this view, according to Madison’s attorney, the very process of enacting legislation presupposes Congress’ judgment that the legislation is constitutional and this “judgment simply cannot be overridden because this Court disagrees” (p.29).  Judge Edwards challenges Strauss to show where the Constitution says that when Congress enacts legislation it should be assumed constitutional and that the Court is bound by this assumption under Article III. In response, Strauss claims to see this proposition “in the fact that congress is empowered to pass laws under Article I of the Constitution” (p.29). Later Strauss weakens his position somewhat by asserting “when any official exercising authority under the Constitution . . . one thing he or she must take into account is, what other branches of government, other agencies, other officials said” (p.32, emphasis added). (This is a weakened position because assuming a law is constitutional because Congress has enacted it and taking Congress’ enactment into account in assessing its constitutionality are vastly different claims.) Further, Strauss insists the Constitution nowhere says that the courts have the final word on the constitutionality of congressional legislation. In Strauss’ view, no “literal support” for this proposition can be found in the Constitution (p.32). Indeed, according to Strauss, the Framers could very well have included such language in Article III had they thought the Court should have such power. But they did not.

 

The argument ends inconclusively as surely it must. Predictably, the Court resists the proposition that the three branches of government are not only co-equal in power, but also have equal authority to interpret the Constitution. However, Madison’s counsel is steadfast in his departmentalist conviction that the Court lacks the authority to issue a writ of mandamus ordering Madison to [*137] deliver Marbury’s commission. In rebuttal, counsel Tushnet urges the Court to recognize that constitutional law is “a special kind of law;” it reflects the people’s understanding of itself as a nation, and must be approached in ways that differ from ordinary statutory interpretation (p.36). Counsel Strauss earlier (p.30) seems to agree with this conception of constitutional law, one apparently at odds with the current reigning paradigm of a legalized Constitution.

 

Following the transcript of the oral argument, David Strauss, now in his constitutional law scholar persona, provides a sobering perspective “On Having Mr. Madison as a Client.” At the time of MARBURY, the relationship between the executive and judicial branches was anything but harmonious. To the contrary, it was marked with executive hostility toward the courts. Indeed, Jefferson had so little respect for the justices of the Court that odds are he would not have even thought twice before attacking them politically had they been imprudent enough to oppose him stridently and forcefully. Reciting these historical facts reveals nothing new. Strauss’ treatment of them is illuminating, however, because he vividly describes how they might have posed special problems for Madison’s attorney in 1803. Madison’s attorney, while remaining civil, probably would have deliberately refrained form making any conciliatory gestures toward the Court. Rather, there is the distinct possibility that Madison’s counsel might have used the failure of the Chief Justice to recuse himself “to signal that the administration was prepared to attack the Court publicly if need be” (p.41).  Indeed, one shudders to think how the hostility toward the Court would have played out had the Court issued the writ.

 

ARGUING MARBURY V. MADISON includes essays by Suzanna Sherry, Susan Low Bloch, Barry Friedman, Douglas Reed, Stephen M. Griffin, Vicki C. Jackson, and Louis Michael Seidman. These essays continue the conversation begun in the transcript.  The issues include but are not limited to: the relationship between MARBURY and STUART v. LAIRD; myths surrounding MARBURY;  the role of the common law and natural law as features of the intellectual background of MARBURY; the clever strategy of bringing the case in the Supreme Court instead of available lower courts for the distinct purpose of achieving federalist goals; whether tacit consent underlies the legitimacy of judicial review; and whether understanding democracy as rights provides a useful measure of the type of judicial review appropriate for contemporary self-government. 

 

The format of these articles pairs principal articles with responses, and hence lends itself pedagogically to useful examinations in courses or seminars designed to examine the central problems of American constitutionalism. The book, in my view, also provides an excellent stand-alone text for law school seminars pursuing an in-depth examination of MARBURY v. MADISON.  

 

The transcript and the well-crafted articles also should be a terrific starting place for scholars beginning to develop [*138] an expertise in the scholarship of MARBURY and judicial review. And more advanced scholars will simply delight in studying the transcript of an actual oral argument in this case as well as reading the rich and diverse array of articles and responses by a distinguished group of constitutional scholars advancing no common agenda except a refined sense of relevance, felicity of style, and passion for the historical, analytic, and normative evolution of American constitutionalism. The participants in this project deserve our gratitude for producing a volume that should occupy a principal place in the literature of MARBURY v. MADISON and the role of the courts in American democracy. 

 

CASE REFERENCES:

MARBURY v. MADISON, 5 US 137 (1803).

 

STUART v. LAIRD, 5 US 299 (1803).

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© Copyright 2006 by the author, Robert Justin Lipkin.