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Walls and Windows

Dense, crowded with facts and rules, appellate decisions at times have hidden meanings. What those meanings imply––well, that’s the task of interpretation. At face value a sentence or paragraph may seem relatively simple. But what lurks beyond? “For all the great texts have esoteric significance, he believed and taught…” writes Saul Bellow in Ravelstein. Ascertaining the “esoteric significance” of an appellate opinion––well, such takes a bit of mental effort.

Let’s take an example: let’s consider the classic case of Marbury vs Madison.

In Marbury vs. Madison, 5 U.S. 137, 1 Cranch 137 (1803), William Marbury filed a mandamus action against James Madison to enforce his appointment as a Justice of the Peace. Mr. Marbury did not succeed. The Court declined the relief requested. In doing so, the Court ruled that the provision of the Judicial Act of 1789, upon which Mr. Marbury’s claim was based, was unconstitutional: it exceeded the authority of Congress since the Constitution already listed those areas where the Court had original jurisdiction. It was thus beyond the power of Congress by a mere legislative act to enlarge the jurisdiction of the Court. Once the legal basis of Mr. Marbury’s action was declared void, Mr. Marbury’s claim had to fall as well.

The Marbury Court had to argue and make clear that the Constitution can always work to override a mere legislative act. “Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.”

Marbury is routinely cited as precedent establishing the power of the Supreme Court to pass upon the constitutionality of legislative acts. Here, for example, are the words of a later Court: “The words of a second great constitutional authority, quoted as in conflict with the Congressional decision, are those of Chief Justice Marshall. They were used by him in his opinion in Marbury v. Madison, 1 Cranch, 137 (1803). The judgment in that case is one of the great landmarks in the history of the construction of the Constitution of the United States, and is of supreme authority, first, in respect of the power and duty of the Supreme Court and other courts to consider and pass upon the validity of acts of Congress enacted in violation of the limitations of the Constitution, when properly brought before them in cases in which the rights of the litigating parties require such consideration and decision, and, second, in respect of the lack of power of Congress to vest in the Supreme Court original jurisdiction to grant the remedy of mandamus in cases in which by the Constitution it is given only appellate jurisdiction.” Myers vs. United States, 272 U.S. 52 (1926).

So, what’s the “esoteric significance” of Marbury? Well, there’s a number of inferences one can draw.

First, Courts are not constrained by the issues framed by the parties, but can decide a case on grounds not raised. Yes, courts have to decide a case, but in doing so they do not have to answer the narrow question presented. They can invoke other forms of reasoning.

Second, the text of the Constitution controls. What’s stated––and equally as important what’s not stated––matter. If the Constitution sets forth certain terms and conditions with precise language, those terms are to be followed. Their scope and meaning cannot at will be legislatively enlarged, reduced––or ignored.

Third, a purely mental act––that required to carry out the reasoning and writing of a judicial opinion––can give rise to actual, real-world consequences. In this context, the space between thought and reality is bridged. And this link between the theoretical and actual is one so vital to a free people that it actually must be protected and guarded.

Fourth, the particular merits of any case are only as strong as the legal basis upon which it rests. Marbury had in fact a valid commission but he could not enforce it because the law on which he was basing his claim was declared to be unconstitutional.

Fifth, the judicial authority is one shaped, structured, and controlled by the Constitution. Once that baseline is established, then a proper balance can be struck.

“Today, Marbury v. Madison is regarded as the central decision in the canon of American constitutional law. But its greatness rests not on its intrinsic qualities as a legal decision nor on its historical significance in 1803. Rather, Marbury enjoys greatness because the doctrine with which it is so intimately associated––judicial review––has become such a significant feature of our constitutional structure.” Davison M. Douglas, The Rhetorical Uses of Marbury vs. Madison: The Emergence of a “Great Case,” 38 Wake Forest Law Review 375, 378 (2003).

Like a stone dropped onto still water, Marbury’s reverberations echo to this day. It’s now as vital and necessary as it was when it was first decided. Perhaps more so. Its ultimate significance? That a free nation takes seriously its underlying legal architecture. Those walls and windows do serve a purpose. Notwithstanding its mandamus denial, Marbury actually can be read as a decision protective of individual rights since its holding has empowered Courts since then to strike down unconstitutional legislative acts. Indeed, in one of its paragraphs the Marbury court in fact writes: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”