Marbury v. Madison, 5 U.S. 137 (1803) 

                Commentary by Jon Roland

The dictum in this case has been the subject of a great deal of commentary, 
but before going on to adding some more, something should be said about the 
actual holding and decree, which are wrong. Marbury was claiming a property 
right in a commission as Justice of the Peace granted to him by the outgoing 
President John Adams as one of his final acts, against a refusal to accept 
delivery of the commission by Madison, as a cabinet official under President 
Jefferson, the successor to Adams. Chief Justice Marshall ruled that Marbury 
had such a property right, but that the Supreme Court lacked the 
constitutional authority to issue a writ of mandamus to Madison, and the 
Judiciary Act of 1789 was unconstitutional in assigning it original 
jurisdiction for such a writ of mandamus.

This decision must be regarded as political. Marshall was afraid of being 
impeached and removed from the Court if he ruled in favor of Marbury. 
Pressure was strong to do that for Justice Samuel Chase, who would be tried 
in the Senate two years later for his part in the Alien and Sedition Acts 
trials. So Marshall temporized in this case, but in so doing also delivered 
one of the more important dicta that would guide further jurisprudence ever 
since.

Did Marbury have a property interest in his commission? No, he did not. He 
would have had under the British monarchical constitution, but under the 
Constitution for the United States, there can be no property right in an 
appointment to a public office. Even if there were, the procedure 
established of granting a commission that did not become effective until 
delivered and accepted made the grant incomplete without the acceptance, 
just as a grant deed of real property is not complete until delivered and 
accepted by the grantee. Madison had the authority to refuse to accept 
delivery, and when he did, any rights Marbury might have had terminated. The 
right had not vested.

Does the Court have the authority to issue a writ of mandamus to an 
executive branch official? Of course it does. Any order of any court is an 
order to an executive branch official. It might be directed primarily at a 
civilian, but implicit is the authority to an official to enforce it if the 
subject of the order fails to comply.

On the other hand, Marshall is correct on one point. If the official refused 
to obey the order there is not much the court can do about it. At that point 
the only remaining remedy is removal from office, and perhaps prosecution 
after removal.

So, the Judiciary Act of 1789 was not unconstitutional on this point. 
However, the dictum explaining the duty of the court to rule a statute 
unconstitutional if it was in conflict with the constitution was sound, as 
far as it went. The problem was that it left the impression that this was 
the exercise of a power of the court that only the court had. The misleading 
statement was, "It is emphatically the province and duty of the judicial 
department to say what the law is." It is misleading because it connotes 
that as the "province" is is exclusive of the other departments. The logic 
of constitutional republican government is that everyone, not just the 
courts, and not just public officials, has the duty to enforce the law, and, 
where conflicts in the law arise, resolve those conflicts and apply the 
correct law. When one of the laws in conflict is the constitution, then the 
duty is of constitutional review, which is only judicial review when it is 
judges that happen to do it. It is not an exclusive power of the courts. It 
is a duty of everyone subject to the Constitution.

So what happens if the Supreme Court rules in a case that a statute is 
unconstitutional, but the Congress or the President disagrees with them? 
They are bound to respect the decision in that case, unless they have strong 
enough conviction of the wrongness of the decision to refuse to abide by it, 
but the ruling does not remove the statute from the books. It could still be 
enforced by the Executive in other cases. But the Court is indicating by its 
decision that it will not enforce the statute in other cases, and that any 
attempt to do so by the other branches will not be productive. Confronted 
with that refusal by the Judiciary to enforce, it is to be expected that the 
Executive will stop trying to enforce it, and the Congress will stop trying 
to fund it. It takes all three branches to cooperate in establishing and 
enforcing a law, and the refusal of any one of them defeats the effort.

The same principle extends to civilians. If jurors refuse to convict under a 
criminal statute that at least one of them considers to be unconstitutional, 
then the enforcement of the act fails, and it becomes a dead letter. If the 
required majority of the jury in a civil case fail to support the plaintiff 
in an action authorized by law, then that law becomes moot.

This also points to the conclusion that under a constitutional requirement 
for unanimous verdicts of twelve jurors in criminal trials, if the objective 
is to have a 50 percent chance of a prosecution succeeding in obtaining a 
guilty verdict, and the jury is selected at random from the population, then 
there needs to be at least 94 percent support for the criminal statute in 
the community. If there is not, then mathematically there is a better than 
50 percent chance that in a random jury of twelve at least one of them will 
disagree with the law enough to refuse to convict someone of violating it. 
The choice of a jury size of twelve is not an accident of history. As it 
happens, human societies have historically had an average of about six 
percent of their populations who were disposed to delinquency if not 
disciplined by the other 94 percent, who tend by nature to not engage in 
delinquent behavior even without the sanction of law. However, whenever a 
majority of less than 94 percent has attempted to impose its morality on the 
remainder by criminal laws, the result has, in general, been 
counterproductive and even destructive of social cohesion and respect for 
law and lawmaking. This indicates that a constitution should require that 
any criminal laws be passed by a legislative majority of at least 94 
percent.




