Constitutionalism, Democracy and Rights: An Introduction

• Author: Simeon C. R. McIntosh
• Pages: 1-91

Constitutionalism, Democracy and Rights

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In 1803, the United States Supreme Court heard and determined the

case of Marbury v. Madison.1 In the simplest terms, the case involved a

petition by Marbury for a writ of mandamus to be issued by the Supreme

Court, under its original jurisdiction, ordering Secretary of State

Madison to deliver to him the commission to which he claimed he was

entitled.

The case grew out of a series of events in 1801 on the eve of the

inauguration of President-elect Thomas Jefferson.2

In one of the last acts of his presidency, John Adams pushed through

the Organic Act of the District of Columbia, creating forty-two justices

of the peace. The forty-two new justices were selected on 2 March

1801; Senate confirmation followed a day later. John Marshall, as

the departing Secretary of State under the Adams administration, was

responsible for signing, sealing, and delivering the forty-two

commissions. Though Marshall was able to complete the first two

tasks, the delivery of the commissions created a problem. On March

4, 1801, the last day of the departing administration, Marshall had to

perform a duty mandated by the judicial position he had assumed

thanks to yet another last-minute act by Adams during his tenure as a

lame duck. As the new Chief Justice of the United States Supreme

Court, Marshall had to swear in the new president, his Republican

political adversary, Thomas Jefferson.3

CONSTITUTIONALISM, DEMOCRACY AND

RIGHTS: AN INTRODUCTION

Chapter 1

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FUNDAMENTAL RIGHTS AND DEMOCRATIC GOVERNANCE

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Being unable to complete the task of delivering the commissions,

Marshall assigned the task to his brother James,

who, “finding that he could not conveniently carry the whole, returned

several of them” to the Secretary’s desk. The new Secretary of State,

Madison, refused to deliver the commissions; Marbury, a would-be

recipient, filed a writ of mandamus in the Supreme Court, and thus

Marbury v Madison.4

In filing his writ, ‘Marbury was following the jurisdictional mandates

of the Judiciary Act of 1789, which, in addition to establishing inferior

federal courts as authorised by Article III of the Constitution, decreed

that the Supreme Court “shall have power to issue ... writs of mandamus

... to ... persons holding office, under authority of the United States.”’5

Marshall began his opinion for the Court by addressing Marbury’s

right to the commission and noted that the appropriate remedy, in

this instance, would be the writ of mandamus. He stated:

The last act to be done by the President, is the signature of the

commission. He has then acted on the advice and consent of the

senate to his nomination. The time for deliberation has then passed.

He has decided. His judgment, on the advice and consent of the

senate concurring with his nomination, has been made, and the officer

is appointed. This appointment is evidenced by an open, unequivocal

act; and being the last act required from the person making it,

necessarily excludes the idea of its being, so far as respects the

appointment, an inchoate and incomplete transaction.6

But such a writ could not be issued from the Supreme Court, since

the congressional act that authorised the Court to issue such a writ

was, itself, unconstitutional and therefore without legal effect. In

essence, it was the Judiciary Act’s purported expansion of the Court’s

original jurisdiction that occasioned Marshall’s articulation of the

Constitutionalism, Democracy and Rights

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doctrine of judicial review: the power of the court to pronounce on the

constitutional validity of legislative (and executive) decrees.

Marshall grounded his case for this power of the court in certain

basic premises. First, the Constitution is the ‘supreme law of the land.’

This, Marshall understood to be the case not simply because the

Constitution declares this to be so; but, rather, in redacting the story

of the founding, he understood that the ‘people’ of the United States,

assembled in special conventions in their respective states, ‘ordained

and established’ the Constitution to be their fundamental law. And,

following from this, it is the Constitution which defines and determines

what other norms are law.7

Next, is the fact that the Constitution vests the judicial power of

the United States in the Supreme Court, ‘and in such inferior courts

as Congress may from time to time ordain and establish.’8 What is

more, it is peculiarly the province of the judiciary (the court) to

determine the rights and obligations of the parties, in cases and

controversies, in the application of the law, which obviously includes

the Constitution qua law. And this project of applying the law obviously

includes interpretation; for, implicit in this premise is the Court’s

obligation to apply only valid law; meaning, law that it determines to

be valid. ‘It is,’ therefore, distinctly within ‘the province and duty of

the judicial department to say what the law is. [And] Those who apply

the rule to particular cases must of necessity expound and interpret

the rule.’9 Therefore, where a law conflicts with the Constitution, ‘the

courts must decide on the operation of each…This is the very essence

of the judicial duty …Those who controvert the principle that the

constitution is to be considered, in court, as a paramount law…subvert

the very foundation of all written constitutions.’10

Indeed, for Marshall’s entire argument for the power of judicial

review is only plausible in the context of the written constitution. For,

‘To what purpose are powers limited, and to what purpose is that

limitation committed to writing, if these limits may, at any time, be

passed by those intended to be restrained?’ ‘Certainly all those who