politics and Marbury v. Madison.

Sean Wilson whoooo26505 at yahoo.com
Sun Oct 16 16:04:34 PDT 2005

Marshall's interpretation of the statute was not wrong. Sandy's position is simply confused. (I have quoted Section 13 at the bottom of mail). The argument for misinterpretation makes two points: (1) that Marshall truncated its full paragraph; and (2) that the statute never authorized a trial in the supreme court for mandamus anyway. The problem with this argument is threefold: (1) it asks that the eye ignore a semicolon; (2) none of the participants of legal culture at that time appear to be taking that position; and (3) it would mean, paradoxically, that the Circuit Courts would have the authority to hold a trial for mandamus, yet not have the remedy of mandamus statutorily provided for them. 


Perhaps the anthropological evidence is most convincing. No one offered the position, "your honor, this statute is being read incorrectly -- you have to pretend as if the semi colon is not there. The statute really only gives the Court the right to issue a mandamus on appeal. We are in the wrong forum today."  To the contrary, the cause of action filed by Marbury specifically relied upon Section 13, and everyone -- including Jefferson's Attorney General -- participated in an ACTUAL TRIAL where witnesses testified.  Indeed, no argument was made such as, "Judge, you are not allowed to have testimony here in a case like this." Hence, the truncation actually OPPOSES Sandy's view. It's no wonder he truncated it. 


Also, another point must be made. Although it possible today to read the statute another way using principles of statutory construction, we cannot be presentistic about this. You could interpret the words according to the canon that "statutes are interpreted to avoid unconstitutional results." If you did this, you could reach the decision that the statute is sloppily drafted, ignore the semicolon, limit the words to mean the granting of mandamus on appeal only, and dismiss the cause for want of the wrong Court. There are two problems with this: (1) the age of statutory construction was not yet upon the Court; and (2) there is not any anthropological evidence that I am aware of that suggested legal culture had yet adopted such orthodoxy. That is, Courts were still functioning in an agrarian society. Legislatures were meeting part time. This was the era of classical orthodoxy. There was no convention of interpreting statutes to sweep illegal results under the table. In fact, I!
 argue to you the opposite: legal culture was infested with a sort of "Bible logic" -- either/or premises; if it is wrong, it must be declared so, etc. Now, I know that judicial review was sparingly used, but my point is that the epistemology that existed in the classical era did not advocate this "specialized reading" approach that emerged in the era of positive law.


There is another major confusion in Sandy's argument. Sandy argues that Marshall's truncation of Article III is suspicious. This is most certainly NOT the case. Marshall truncated Article III because the part omitted had nothing to do with the tea in China! Neither the case nor Section 13 was about taking away the Court's appellate jurisdiction (which is the part Marshall truncated). The truncation is therefore not about mischief, it is further anthropological evidence about what legal culture of the day thought the ISSUE was. How does truncating Article 3 have anything to do with it?


Finally, this talk of high politics and low politics sounds like a bunch of law school jargon. It sounds as if lawyers are trying to do philosophy again. Let's clear this up a bit: Marbury has an epistemic value (its justification) that exists independently of Marshall's political views. You can argue that it does not exist this way in his mind, but you cannot take the position that arguments do not have a given value separate from the pleasure they give their advocates. My God, how would you people judge a debate? "You lose because you like your position."


Also, one can be absolutely delighted that a correct answer supports one's politics without the delight being the cause of the decision. Consider three possible options: (1) legal justification is very strong and the person is happy with the result (Marshall in Marbury); (2) legal justification is very strong and the person is unhappy with the result (Scalia in flag burning and the sentencing guideline case); (3) legal justification is absent or indeterminate and there is nothing other than desirable results upon which to judge (the Katz regime in search and seizure, or obscenity voting). Ideological judging tends to flourish the most in situation 3. (My research supports this).


Now what we have in Marbury v. Madison is not so much the politics of John Marshall, but rather the politics of law school professors and other legal academics. On one side, you have these Jefferson-drunk conservatives attacking the decision because they want to discredit the idea of judicial review in the Constitution (the right wing perspective); and, on the other hand, you have these "critical fad" scholars who want rationality to have no value in and of itself in law (the left-wing perspective). In between, there is one hell of a piece of judicial reasoning that has stood the test of time, regardless of the fact that it provided its author pleasure and represented a savvy solution to a nasty political problem.     




... The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writes of prohibition to the disctrict courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of the law, to any courts appointed, or persons holding office, under the authority of the united states. 
[There is a sentence right before this that is missing. It has to do with Section 13 mandating that trials in the Supreme Court should be by jury for actions at law (as opposed to equity). I wish I had the text of it in front of me, but I don't. I think it further makes the validity of the section problematic].

Sanford Levinson <SLevinson at law.utexas.edu> wrote:

No one who reads Bruce Ackerman's new book on the election of 1800 and
its aftermath could possibly believe that Marshall's decision wasn't
saturated in a mixture of high politics (his desire to establish a
certain role for the Court, partly to stave off Jeffersonian
depredations against the Constitution (or which the failure to deliver
the commission to Marbury was an example), and low politics (i.e., the
desire to avoid ordering Thomas Jefferson to give Marbury what he was
entitled to, which would have generated a constitutional crisis and
perhaps the impeachment of Marshall). The reading of Section 13 is
dishonest (because he doesn't even quote it accurately, ditto for
Article III), and the reading of Article III, to put it mildly,
debatable. As I have argued elsewhere, what literally makes no sense is
to read Section 13 and Article III as in conflict with one another,
unless one is engaging in completely motivated judgment, as I believe
Marshall (and his Federalist colleagues) were. 
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