A symposium sponsored recently by the American Philosophical Society marked the two hundredth anniversary of the landmark decision Marbury v. Madison in 1803. The moderator was Supreme Court Justice David Souter, and five of the most distinguished constitutional lawyers and judges across the country presented papers on the significance of the decision.
Without getting into the details of the case, it is fair to say the principle established was perhaps one of the four or five most significant governmental moments in the history of this country, for the ruling held that the Supreme Court had the ability to declare a law, that has been adopted by Congress and signed into law by the President, to be void because it is “repugnant” to the provisions of the Constitution. It meant that of the three branches of government – – executive, legislative, and judiciary – – the absolute, final voice was with the judiciary.
Previously among Anglo-American legal scholars there had been considerable discussion, but it was not clear how the issue would be resolved among the three branches. In England, we were told, Parliament had been supreme; however, John Marshall, who as Chief Justice wrote the opinion in Marbury in 1803, chose a different path. That the Supreme Court in effect could “anoint” itself with this power and that it would be accepted by the executive and legislative branches of the government was a tribute both to the altruism among the politicians of the moment (many of the founders were still active and involved) and, perhaps more importantly, to the deftness of Chief Justice Marshall in framing and resolving the issues in such a manner as to minimize dissent. He was fully appreciative of the significance of the moment and gave much thought to the Court’s approach to the issues before it.
Though the incoming President, Thomas Jefferson, may not have agreed with the principle the case stood for, he was very happy with the outcome (which voided the appointment of 17 federal judges by John Adams on his last day in office), and Jefferson accepted it. Even though the Supreme Court, as a new entity, was cloaked with none of the solemnity and respect it commands today (at that time it actually spent some of its time conducting ordinary trials), it is interesting to conjecture on the path Jefferson might have followed if he had decided to challenge the decision. Of course, there was no higher court to appeal to; a decision just to ignore the ruling by either the President or the Congress could have had an enormously destabilizing effect on what was then a fragile constitutional experiment. (And then there would have been the further question of whom between the President and Congress would have been “supreme”; a serious and disruptive struggle might have led to anarchy.)
After 200 years the concept of a Supreme Court’s ruling being final and beyond further appeal is tightly woven into the fabric which is our government; and while we may criticize the Court’s rulings from time to time, in the end we accept them routinely. The wit and wisdom of Justice Souter throughout the symposium were irrepressible and left all with a new appreciation of this crucial point in a young nation’s struggle to survive.
Finally, it is further worthy of note that the American Philosophical Society, firmly anchored in Philadelphia, is also celebrating an important birthday; it was founded “For Promoting Useful Knowledge” by Benjamin Franklin 260 years ago! Happy Birthday.
— Ken Butera