The Offending “Misquote,” and the Use and Misuse of Terms

The key piece of evidence offered by Rose to demonstrate his claim about Marshall is the chief justice's interpretation and citation of Article III, section 2, paragraph 2, most importantly the so-called exceptions clause. Anderson, in his response, makes several keen observations on Rose's claims about the misquotation and demonstrates problems incumbent in Rose's account. As Anderson rightly claims counter Rose's assertions, Marshall did not ignore the exceptions clause in Marbury or claim it mere surplusage. Marshall's interpretation and application of the exceptions clause employed paragraph 1 of Article III, sec. 2 and clause 1 of paragraph 2 of the same section as necessary predicates.

The affirmation of Congress's power to render exceptions and regulations in paragraph 2 of Article III, section 2 is interpreted by Marshall and the Court as providing a “negative inference” for congressional authority to expand original jurisdiction (Rehnquist 2001, 32). Marshall's interpretation is thus: “Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all” (Marbury v. Madison, 5 U.S. [1 Cranch] at 174). It is not that Marshall misquoted the Constitution or acted to deceive his audience, it is that he interpreted the clause in an exclusive sense. That is to say, the Court found the Constitution as excluding cases in original jurisdiction from the scope of the exceptions clause.

In the Court's treatment of the exceptions clause Marshall makes clear that reading the clause as allowing the expansion of original jurisdiction, as Rose does and as the attorney at bar for Marbury did, would render the Constitution's specific language about original jurisdiction cases “mere surplusage.” The chief justice most certainly was not advocating his position that the clause was superfluous and therefore of no value to Marbury in his claims. Marshall was saying that if one accepted Rose's interpretation of the exceptions clause such a reading would render the rest of the jurisdictional language as meaningless (a conclusion unacceptable under Marshall's rules of interpretation). For the Court, to read the clause in such a manner would leave “the distribution of jurisdiction made in the Constitution” as “form without substance” (Marbury, at 174). For the Court this interpretation is a matter of constitutional integrity. To hold congressional authority over the Court's jurisdiction as without limit would do damage to the Constitution and the premise of the Constitution as “fundamental law.” Furthermore, the Court's application of Section 13 of the Judiciary Act of 1789 would lead the court into inflicting harm. The desire to avoid the judiciary from doing such harm to the Constitution is at the core of Clinton's exposition of functional coordinate review—the type of review Clinton argues Marshall envisioned (1989).

Beyond the suspect interpretation of Marshall's treatment of the exceptions clause, Rose's accounting of Marbury and the Court's actions is troubling for his treatment of the “ambassadors, other public ministers and consuls” provision of Article III. In cases involving such individuals the Constitution confers onto the Supreme Court original jurisdiction. After quoting Article III, section 2, paragraph 2, Rose states, “It was reasonable for Marbury to conclude that he was a public official who had been nominated by President Adams and confirmed by the Senate but whose office was unlawfully withheld from him” (2003, 211). As such, Marbury could seek redress in the form of mandamus in an original jurisdiction action before the Supreme Court. Rose contends it was only through “Marshall's considerable ingenuity” that the chief justice could avoid such a conclusion (2003, 211). That “ingenuity” took the form of the “misquote” of Article III, Section 2, paragraph 2 as briefly discussed above and more thoroughly considered in Anderson's response.

There is a problem, however. Rose's approach loses the operant definitions of these terms “public minister” and “consul.” Furthermore, in his accounting of the clause and Marbury's status, Rose performs a trick for which he brings Marshall and the Court to task. Rose conflates the terms “public ministers” with “public official.” These terms are not exact synonyms as used in the Constitution, yet Rose treats them as such. Through the Federalist Papers (see, e.g., Federalist 42), President Washington's “Second Annual Message,” the text of the Constitution, and other documents of the period, it is clear that “public ministers” and “consuls” refers to a class of officers related to the conduct of foreign affairs.

For clarity, the following definitions from Black's Law Dictionary of the “public minister” and “consul” terms are offered here. Of course Black's was not the source of the specific language for the Framers, but the text does offer the traditional understanding of these types of officers (the understanding in force during the Founding as inherited from English law):

It is precisely because these were the definitions in operation within the Constitution that rendered it necessary to list them as they were in Article III (along with the other categories of important and unique litigants). The listing of these individuals whose inclusion in suits may trigger the Court's original jurisdiction is intentional. All the categories of litigant are related to the issue of foreign service and related to sovereign or semi-sovereign entities.

Marbury, as a prospective justice of the peace for the District of Columbia, fits none of these definitions. As such, Rose's assertions are flatly incompatible with the legal and historical record. Any discussion of Marbury fitting these categories of original jurisdiction is therefore unwarranted and unpersuasive as evidence for Marshall's alleged chicanery.

The Modern Tendencies in Reading Marbury

While Rose puzzles over the lack of attention paid over the last 200 years to the misquotation by chronicling the historical scholarly treatment, the most intriguing question remains unaddressed. That question is: what drives many modern commentators and jurists to interpret Marbury as the progenitor of modern judicial review? The answer appears to be that Marbury was recast as such at the dawn of the 20th century, and this recasting was retold and became accepted jurisprudential history.

The only means to accurately recapture Marshall's expression of judicial review is to extricate it from the mythology in which it has been enshrined. This mythology holds at its core assumptions that Marbury was wholly political and that the Marbury Court's understanding of judicial review is the same, or at least largely similar, to that articulated by the Court in such cases as Cooper v. Aaron (1958).

One possible explanation for the stress on Marshall's political acumen may be that modern commentators fail to place the concept of judicial review enunciated within the case within its historical context or appreciate the contemporaneous reaction to Marbury. Few also seek to accurately understand how the Court itself viewed the Marbury principle in its subsequent cases. The lack of reference by the Court to a broad-gauged judicial power is striking and may indicate that Marbury was not originally understood or applied as it is today. The case was likely not seen, as it is now, as the watershed event in which the Court seized its broad power of judicial review (a power leading the Court to its stature as the authoritative institution for constitutional interpretation across categories of law and policy). It is only because we have assumed as much that we can be lead to a conclusion of Marshall as a deceptive political genus of the first rank.

There was serious reaction to Marbury, but such response, as Rose rightly cites, was focused on the Court's assertion that it was empowered to issue writs against executive officers. While the Court clearly articulated that such power only extended to those cases “where a specific duty is assigned by law, and individual rights depend upon the performance of that duty,” the Court was attacked. In such cases in which the Court could intervene, “The individual who considers himself injured has a right to resort to the laws of his country for a remedy.” For all other cases, according to the Court, the acts of executive officials are only “politically examinable.” Such cases might include executive decisions and actions related to the negotiation of treaties, for example.

It was on this portion of the decision and others speaking to the power of the Court vis-à-vis the executive that drew the focus of contemporary critics. The contemporaneous reaction to Marbury was largely not focused on the power of judicial review or the statutory course charted by the Court. As Christopher Wolfe has rightly argued, “Jefferson was furious that Marshall would criticize him on the merits for many pages before saying that the Court had no jurisdiction, but he did not object to the statutory interpretation on which the judicial review had been based” (Wolfe 1994, 87).

As Clinton and others have noted, Marbury was not cited as a precedent for expansive judicial review of national laws for the better part of the nineteenth century. It was not until Pollock v. Farmers' Loan and Trust Co. (1895) that Marbury was cited as such a precedent, and it was not until well into the twentieth century that Marbury was read as the authoritative statement of expansive judicial review—under which the Court has virtually unchecked authority to determine the constitutionality of both acts and actions of other branches across categories of law and policy (Clinton 1999). Given the historical record, it is reasonable to posit that Marbury was not seen as the sweeping case it is seen as now.

Clinton, in his Marbury v. Madison and Judicial Review, offers the most thorough treatment of how Marbury came to be understood as the source of the Court's broad power of judicial review. Clinton identifies two sources for the rise of Marbury mythology: progressive revisionist legal historians/academics and jurists. Clinton finds the misapplication of the case by jurists and the misinterpretation of Marbury and judicial review in the late 19th century amplified and ossified by 20th century citation to this revised Marbury.

In fact, legal commentators, including Marshall's most famous biographer, Albert Beveridge, had begun the process of recasting Marbury before the Justices of the Court accepted Marbury as the precedent for expansive judicial review:

It is hard to imagine how Rose's thesis about the case is not the product of such nourishment, and how his work is not adding further fiber and will sustain the view of Marbury as the moment in time when Marshall seized for the Court the power to stand as singular guardian of the Constitution's meaning. However, this revision of Marbury may miss Marshall's true contribution. Marshall's concept of judicial review was a more limited one, and was one more consonant with the form of government crafted in the Constitution. Clinton labels Marshall's idea functional coordinate review—the power to invalidate unconstitutional acts which impact on the judicial function or rely on judicial action, and not a broad power “to issue ‘final’ interpretations on constitutional questions generally” (1989, 117).

Clinton's most important contribution to the discussion of judicial review and Marbury is his survey of the citations to Marbury by the Court. His most striking evidence is the lack of citation to Marbury as a precedent for judicial review—a finding he argues indicates the Court accepted Marshall's narrow version of judicial review (limited to those cases implicating a judicial function). In the only other case before 1865 in which the Court invalidated an act of Congress, the infamous decision in Dred Scott v. Sanford (1857), the Court failed to mention Marbury for its power of judicial review. “This pattern continued during the period from 1865 through 1894, the year before the fateful Pollock and Knight decisions. During these years, the Court invalidated national laws in no fewer than twenty cases, yet Marbury is mentioned in none of them” (Clinton 1989, 119).

In all, there is precious little support within the Court's decisions from 1803–1957 to suggest Marbury was understood as creating a sweeping power of judicial review (especially in the case of those decisions prior to the 1920's). The Court almost exclusively recognized Marbury as speaking to other matters (e.g., right/remedy maxim, mandamus, etc.) or to a narrow conception of judicial power.

The limited reference to Marbury to justify judicial power does not last, however.

The citation to Marbury changes dramatically in the second half of the 20th century. In this period, the Court comes to find Marbury as the origin of broad judicial review, and potentially of judicial supremacy. And it is cited and internalized by the Court and commentators through the successive generations. The decision in Cooper v. Aaron (1958) is the clearest exposition of this power, and the Court connects the power to Marbury. In Cooper the Court articulates a position in which its interpretations are the authoritative constructions of the Constitution and its decisions are in effect of equal station with the original document. Since Cooper, Marbury has been cited repeatedly as the foundation for the Court as ultimate, or nearly ultimate, arbiter of the Constitution's meaning. During this past half century the Court has been more likely than in the past to exercise review, and more likely than not these instances of review are cases most decidedly not of a “judicial nature” as understood by Marshall and the Marbury Court.

Clinton concludes his original historical survey thusly,

While such discovery will likely not end the Court's broad use of judicial review, it is important in a legal system reliant on precedent to accurately determine the provenance of a case or an idea. Clinton's thesis is provocative in its own right, and has not been universally accepted (Alfange, Jr. 1993), but it remains one of the most convincing accounts of the Court's treatment of the Marbury precedent across time and the case's metamorphosis into mythology.

Through the presuppositions of conventional “textbook” scholarship on Marbury, ones Rose amply displays, Marbury has gained mythical status. Interestingly, Clinton compares the Marbury myth to Plato's noble lie, “In essence, Marbury has become a myth— one which like Plato's noble lie, imparts the flavor of time-honored truth to what is really a modern idea of judicial guardianship” (1989, 126). “Judicial guardianship” is the modern understanding of broad-gauged review. This mythology based on presupposition may have an obfuscating power over the clear consideration of American legal development and readings of the Court's decision in the case.