1 Party struggle
The US 1800 presidential election is an extremely important page in the history of American constitutionalism, and its historical significance and far-reaching influence far exceed the election war between Gore and Bush two hundred years later. In this presidential election, President Adams lost to the Democratic Party and the party's candidate Jefferson because of the infighting of the Federalists. The Federalist Party also suffered a crushing defeat in the simultaneous parliamentary elections. In this way, the Federalist Party not only lost the presidency, but also lost control of the Congress. In this context, the constitutional system of the United States is facing a severe test for the first time: whether the supreme power of the state can be handed over peacefully between different parties in a non-violent way in accordance with constitutional procedures is related to the life and death of the newly born United States of America. Fortunately, the powerful federalists put the national interest first. They refused to hand over power without a knife and a gun, but adopted the means of "legal struggle". They used the power entrusted by the Constitution to appoint federal judges and tried their best to control the federal judicial department that was not directly affected by the election, so as to maintain the position and influence of federalists in American political life and make a comeback.
1On October 20th, President Adams appointed Secretary of State john marshall as the Chief Justice of the Supreme Court. With the approval of the Senate, Marshall officially took office on February 4, but still acted as Secretary of State, but did not receive the salary of Secretary of State. This situation continued until the term of President Adams expired on March 3rd. 180 1. Then, before the new president came to power and the new Congress was convened, the federalists in Congress passed the judicial bill of 180 1 in February/3. But in fact, since this clause will only take effect after the retirement or death of any serving justice, one of its purposes is obviously to reduce the chances of President Jefferson nominating Democrats and Republicans to serve as justices. At the same time, according to 1789 judicial act, the number of federal circuit courts was increased from 3 to 6, thus increasing the position of 16 federal circuit judge. In this way, the outgoing lame duck President Adams can take the opportunity to arrange more federalists to enter the federal judiciary before leaving office. Two weeks later, the federalist-controlled Congress passed the Organic Law of the District of Columbia, formally established Washington, D.C., and authorized President Adams to appoint 42 magistrates in the District of Columbia for a five-year term. 1801March 2, President Adams nominated all federalists as justices of the peace, and William Marbury was on the appointment list. The next day, the day President Adams left office (180 1 March 3rd), the incoming Senate hastily approved the appointment of 42 magistrates. Later generations ridiculed these judges as midnight judges.
Go to court.
According to the regulations, all the letters of appointment of justices of the peace must be signed by the president, and the State Council's seal can take effect. It was the time when the new and old presidents handed over. On the one hand, john marshall will hand over to the new Secretary of State, and on the other hand, he will preside over the swearing-in ceremony of the new president as Chief Justice. As a result, due to negligence and haste, even 17 appointment orders were not issued in time before Marshall left office (Marshall admitted in his letter to his brother: "I am worried that all kinds of blame will be attributed to me" and "due to the extreme haste and the absence of Mr. Wagner [Marshall's assistant in the State Council], the signed and sealed appointment letters of judges were not issued in time", and Marbury happened to be among the unlucky ones.
Jefferson, the newly appointed Democratic President, has long been deeply dissatisfied with the federalists' practice of drawing a clear line with the party and giving cadres a "surprise" on the eve of the handover of power. When he heard that some federal judges' letters of appointment were stranded in the State Council, he immediately ordered the new Secretary of State, james madison, to seal up these letters of appointment and motioned Madison to "dispose of them like waste paper and garbage in the office".
Then, in view of the legislation made by the Federalist Congress on the eve of the general election, the Democratic Congress and the new Congress controlled by the party went head-to-head and passed the judicial bill of 1802 on March 8, 802, abolishing "18062".
However, the new Congress did not repeal the Organic Law of the District of Columbia, which appointed 42 magistrates. In order to prevent the federalist-controlled Supreme Court from challenging the bill passed by the new Congress, the Congress changed the date of the Supreme Court's session from twice a year to once, so that the Supreme Court was temporarily closed from 180 10 to 1803 for 14 months. When the Supreme Court reconvened, it was already February 1803.
Although Marbury is rich, he has a special liking for the magistrate, the seven sesame officials, and therefore inexplicably lost his position as a judge. He thinks it's really unfair. There must be a statement. Therefore, Marbury accepted three other people in the same situation as him. He is my brother, and hired the Minister of Justice, the former Minister of Justice in President Adams' cabinet, who is now generally translated as the Minister of Justice. Although this position was established in 1789, it was only a part-time cabinet position at that time, and it didn't become a full-time position until William White was in office-even so, he was still a army of one, because [the Ministry of Justice] was established in 1870, and only then could Attorney General Charles Lee be called a lawyer. They asked the Supreme Court to issue an execution order (originally written in Latin mandamus, also translated into mandamus writ, which refers to the order issued by a judge with jurisdiction to lower courts, government officials, institutions, legal persons or individuals to perform legal duties), and ordered Madison to hand over the power of attorney in accordance with legal procedures so that he could take office. The basis for the prosecution's lawyer's prosecution comes from the provision in Article 13 D of the Judicial Act 1789: The Federal Supreme Court has the right to issue a writ of execution to any court or to an official appointed under the authorization of the United States under the protection of legal principles and practices.
When Madison saw that his opponent was on a roll, he sent soldiers to block the match, and asked levi Lincoln, the Attorney General of President Jefferson's Cabinet, to be his defense lawyer. This Mr. Lincoln really deserves to be the current attorney general. He is full of style in handling cases. After taking the case, he didn't even bother to go to court. He just wrote a written argument and sent it to the Supreme Court, claiming that Marbury v. Madison was a political issue involving the struggle for party power and had nothing to do with the law. The Supreme Court can't handle this simple and straightforward partisan struggle.
On behalf of the Supreme Court, Justice Marshall wrote to Madison, Secretary of State, asking him to explain the reasons for detaining the power of attorney after receiving the complaint from the prosecution lawyer and the written argument from the defense lawyer. Unexpectedly, Madison simply ignored Marshall's letter. In the legal and historical environment at that time, Madison's arrogant and lawless behavior was very common, because the Federal Supreme Court was indeed a judicial institution lacking authority at that time. Alexander hamilton, a sage of the Constitution, once commented: "The judicial department has neither military power nor financial power, can't control social forces and wealth, and can't take any initiative", which is "the weakest of the three powers". 1789 The Constitution of the United States, which came into effect, stipulated the pattern of separation and checks and balances among the executive, legislative and judicial powers, but this Constitution and subsequent constitutional amendments never made any clear provisions on the ownership of the final interpretation right of the Constitution. This constitution does not give the Supreme Court the privilege of giving orders to the highest administrative authorities and national legislatures, let alone forcing the President, Secretary of State and Congress to obey the Supreme Court's ruling.
From the perspective of constitutional theory, according to the principles of constitution and system design of European thinkers John Locke, Charles Louis de Mutkiu and Rousseau, the functions and authorities of executive power, legislative power and judicial power should be strictly distinguished and independent of each other. In addition, in the separation of powers, if it is necessary to decide which one is in an advantageous position, it should obviously be the legislative power based on public opinion. In any case, it is not the unelected judiciary that occupies the highest and final authority.
From this point of view, Marbury v Madison actually put Justice Marshall in a dilemma, and there is no doubt that he will lose. Of course, he can formally issue an execution order and order Madison to issue a power of attorney in accordance with legal procedures. But Madison is backed by Jefferson, the president and commander-in-chief of the US military. He may turn a deaf ear to the injunction issued by the Supreme Court. The Supreme Court, which has neither money nor sword, will only make the world laugh and further weaken the judicial authority of the Supreme Court if it forcibly gives orders to Secretary Madison but ignores them. However, if Marshall rejected Marbury's reasonable litigation request, it would be tantamount to voluntarily admitting that the Supreme Court lacked authority and could not challenge the illegal behavior of senior officials in the administrative department, which not only humiliated the Federalist comrades in the same camp, but also humiliated the Supreme Court.
Whether to judge or not has become a big problem for Marshall. After more than half a month's hard thinking, he finally came up with a wonderful judgment of killing two birds with one stone, which amazed and praised future generations. Marshall's judgment not only shows the unique authority of the judicial department, but also avoids the direct collision and direct conflict with the administrative authorities and the Congress, laying the foundation for establishing judicial review as an important power in the system of decentralization and checks and balances.
3 review principle
It took Marbury too long to appeal from the grass-roots court level to the Supreme Court, and he had to withdraw the lawsuit.
On the surface, Marbury, a Federalist, did not serve as a judge, and Madison, the Secretary of State, did not issue a warrant to appoint detained judges. Marshall seems to have lost the case. But in fact, Marshall is the real big winner in this case.
First of all, Marshall declared to the National Legislature Congress through this case that not only the Constitution is superior to all laws, but also the key power to judge whether the law itself conforms to the Constitution has nothing to do with the legislature. In other words, the legislature is not allowed to legislate at will, and only the Supreme Court is the final arbiter of all legal-related issues.
Secondly, Marshall announced to the highest administrative department of the country through this case that the final interpretation right of the Constitution belongs to the judicial department. Therefore, the judicial department has the right to judge whether the actions and administrative orders of administrative organs are unconstitutional and to impose sanctions on the unconstitutional actions and orders of administrative organs. In this way, although the Constitution stipulates that any law must be decided and passed by the Congress and the President, the Supreme Court has the power to interpret the law and the final power to decide whether the law is unconstitutional. Once the Supreme Court's ruling is made, it becomes the final ruling and constitutional convention, and all government departments and states must abide by it. Therefore, the Supreme Court not only has the power of judicial review, but also has the "final legislative power" in a sense. Mei Sen, an American scholar, believes that compared with British kingship, the Supreme Court of the United States is not only a symbol of authority, but also holds real power. "It can make Congress, the president, governors and legislators bow to their knees".
Marshall's genius lies in that on the surface, he claimed that the abolition of article 13 of the judicial regulations13 was a restriction on the Supreme Court's own authority, so Congress could not find any excuse to confront the Supreme Court and there was no reason to impeach the Supreme Court justices. In addition, although Marshall announced that the judicial department had the right to judge whether the actions of the administrative authorities were unconstitutional, he did not issue an execution order to Secretary of State Madison, but only suggested that Marbury go to the lower court to sue Madison. In this way, the government can't find any excuse to oppose the Supreme Court, and it can't challenge Justice Marshall's ruling at all. In fact, Jefferson and other Democrats and Republicans are ready, even if the Supreme Court issues an injunction, they will not enforce it. However, while clearing Marbury's name, Marshall avoided the trap set by democracy and party members and turned his judgment to the fundamental question of which is more important, the law or the constitution.
The American legal system is a combination of statute law and case law. Because the legislative and administrative departments can't overturn the Supreme Court's judgment on Marbury case, this judgment will be cited by later generations as a constitutional convention that follows the precedent principle in the common law system of Britain and the United States. According to statistics, in the later judgments of the Supreme Court, the Marbury case ranked first among the cited cases, reaching hundreds of times.
According to this classic case, the gradually established judicial review power of the federal court contains quite rich contents: first, the federal court is the final arbiter of the constitutionality of legislation and actions of the federal legislative and administrative departments; Second, the federal court is the final arbiter of whether the legislation and actions of state legislatures and administrative departments are constitutional; Third, the federal courts, especially the Federal Supreme Court, have the right to review the criminal and civil litigation laws and regulations of state courts to determine whether these litigation laws and regulations meet the requirements of the federal constitution.
Marshall's ruling on Marbury case strengthened the competitive position of the federal judicial department with the other two government departments, and made the judicial department stand with the legislative and administrative departments. On the other hand, he enhanced the prestige and reputation of the Federal Supreme Court as a government agency, and made the Supreme Court the final interpreter of the Constitution. More than a hundred years later, Justice Benjamin N. Cardozo of the United States Supreme Court praised: "Marshall deeply imprinted his thoughts on the American Constitution. The reason why our constitution has today's form is because Marshall exercised it with the flame of his firm belief when it was still elastic and plastic. " Jean E. Smith, the author of Marshall's biography, praised: "If George Washington founded the United States, then john marshall decided the American system."
After Marbury v Madison, President Jefferson flew into a rage. In Jefferson's view, the relationship between the executive, legislative and judicial departments should be one of separation of powers and equality. Why should the judicial department rely on the power of judicial review? Jefferson said: "The Constitution does not give judges the power to make decisions for law enforcement agencies, just as law enforcement agencies have no right to make decisions for judges. In their respective areas of responsibility, these two institutions are equal and independent of each other. " "The Constitution wants to check and balance the various cooperation departments of the government. However, if judges are empowered to decide whether laws are unconstitutional, so that judges can act arbitrarily not only within the scope of the judicial department, but also within the scope of the actions of the legislative and law enforcement departments, the judicial department will become an authoritarian and tyrannical institution. "
President Jefferson's worries are largely based on political reality. If the Supreme Court under the control of federalism repeatedly uses the power of judicial review to overturn the important laws enacted by democracy and the party congress, then the separation of powers and checks and balances system in the United States will be paralyzed by partisan struggle. Even if Congress can initiate constitutional procedures to impeach the Supreme Court justices, the result will be to completely weaken the political status and judicial authority of the Supreme Court. No matter what happens, a constitutional crisis seems destined to happen.
However, the secret of politics lies in compromise. Although President Jefferson was worried, to his surprise, under the leadership of Justice Marshall, the Federal Supreme Court was self-disciplined and stopped. It didn't use the power of judicial review, but simply proceeded from the interests of the party, confronted President Jefferson, democracy and partisans, and frequently vetoed the legislation of the new Congress, making the Supreme Court an "autocratic and tyrannical institution". 1803 On March 2, that is, six days after the Marbury case ended, the Supreme Court under the control of federalists compromised and recognized the constitutionality of judicial decree 1802. More importantly, in the more than 30 years after Marbury case, Marshall Court never used the power of judicial review. During his eight-year term, Jefferson also showed the constitutional spirit of putting the overall situation first and transcending party differences, and retained the main achievements of federalists in strengthening federal authority.
Some American constitutional scholars believe that Marshall's wise judgment on Marbury case was actually the product of partisan struggle at that time, which did not have any actual legal effect at that time, but laid the foundation for the judicial organs to review the constitutionality of congressional legislation in the future. In addition, there is a very obvious contradiction in this judgment, because the legal basis of Marshall's judgment is that the Supreme Court has no power of first instance. In this case, he should not make any judgment at all, but should return the case to the federal district court with jurisdiction according to law. However, Justice Marshall did not do so. On the one hand, he accepted the case according to article 13 of 1789 judicial regulations, and on the other hand, he declared it unconstitutional on the grounds of violating the Constitution. However, Marshall seems to be able to argue that he didn't know that he had no jurisdiction when he accepted the case, and that his lack of jurisdiction was only a new understanding gained during the trial. Also, Marshall is one of the parties to the origin of this case and should have avoided it, but he didn't. At the beginning of the founding of the United States, laws and regulations were very imperfect. For example, from February 4th, 180 1 year to March 3rd,1year, Marshall, as the third chief executive after the president and vice president, served as the chief justice of the Federal Supreme Court, which obviously violated the principle of separation of powers. In contrast, in the Marbury case, Marshall, as a party, did not shy away, which was just a piece of cake. This judicial decision, which was largely due to the need of partisan struggle, later became a milestone in the process of American constitution.
1789 The American Constitution, which came into effect, was praised by later generations as a great model of human political system design. In fact, this evaluation seems a bit too high. The reason is that 1789 Constitution has not made a pioneering contribution to the final interpretation of the Constitution, which actually involves the separation and balance of the three powers, the national constitutional system with American characteristics and the basic principle of constitutional rule of law, that is, greater power or greater law. Due to historical limitations, this constitution does not explicitly stipulate that the Supreme Court has the power of judicial review, which makes the judicial organs in the weakest side of the three powers and makes the system of separation and checks and balances of the three powers exist in name only. According to this constitutional design, the Federal Supreme Court, which lacks authority, is actually dispensable. For example, in Marbury's case, Secretary of State Madison simply ignored the letter from the Supreme Court asking him to explain why the appointment documents were seized.
However, the principle that the Supreme Court has the right to interpret the Constitution can actually be deduced from the provisions of the American Constitution. In the theoretical exploration of the father of the American Constitution, there is also a discussion that the Supreme Court should have the power of judicial review. Article 3, paragraph 2, of the Constitution of the United States stipulates that one of the powers of the Supreme Court is to accept disputes involving the Constitution and federal laws. Since it is a constitutional dispute, it is obvious that the Supreme Court should make clear its interpretation of the Constitution when making a ruling. In Volume 78 of the Federalist Collected Works, Hamilton, the founder of the Constitution, pointed out: "It is the proper and unique duty of the court to interpret the law, and the constitution should actually be regarded as the fundamental law by judges, so the right to interpret the Constitution and any laws enacted by the legislature should belong to the court. If there are irreconcilable differences between the two, the law with greater effectiveness and function shall prevail, that is, the constitution takes precedence over the law. " In Hamilton's view, the legislature must be subject to certain restrictions and constraints. "This restriction must be enforced by the court, so the court must have the right to declare the legislation that violates the explicit provisions of the Constitution invalid." Therefore, Marshall's judgment has a fairly solid foundation.
However, Marshall did not give a convincing explanation from the constitutional theory on the important issue of why the unelected Supreme Court has the right to declare the laws enacted by Congress on behalf of the people unconstitutional. However, the foundation of institutional innovation is not perfect constitutional theory or legislation. In Anglo-American common law system, the evolution and innovation of laws and regulations are mainly based on judicial practice and the accumulation and development of judicial experience and practice. The law formed by parliamentary legislation is only a part of the law, and a large number of laws are composed of court precedents. In fact, in the process of legislation, courts and judges in common law countries have already occupied and played an extremely important role. This habit and tradition of making and interpreting laws is of great significance to the formation and development of American judicial review system.
It should be pointed out that during the colonial period and the early independence of the United States, influenced by the British Privy Council's review of the judicial precedent of colonial legislation in North America, some cases similar to the judicial review system have appeared in state courts. 1786 is one of the most famous cases. The basic situation of this case is that the Rhode Island state legislature stipulated that paper money is legal tender, but the state Supreme Court judge considered the bill "unpopular and unconstitutional" and eventually lost its legal effect.
Due to the profound influence of English common law tradition on North American colonies, the outstanding thought of the father of the Constitution, the respect of American politicians for political rules at that time and later, and the extraordinary wisdom and efforts of Justice Marshall in judicial practice, the US Supreme Court gradually became a pivotal role in the system of checks and balances in the historical process of constitutional rule of law. It makes the American political system truly have the characteristics of separation of powers and mutual checks and balances, and makes the judicial review system an important feature that distinguishes the American constitutional system from the political systems of western democratic countries such as Britain and France, and becomes the cornerstone of the American constitutional rule of law.
Today, 200 years later, Justice Marshall is the only person in the history museum of the Supreme Court College in the United States who enjoys the special treatment of full-length bronze statues. On the dining room wall dedicated to the nine justices, the portraits of Marbury and Madison are hung side by side.
In the American presidential election in 2000, there was a strange situation in which the Supreme Court justices "elected" the president. Although Al Gore, the Democratic presidential candidate, was deeply unconvinced and won the support of the public who won the majority of popular votes, he had to show full respect and obedience to the authority of the Supreme Court and honestly declare his defeat.
Without Justice Marshall's amazing judgment in Marbury v. Madison, I'm afraid there would not be the supreme authority of the Supreme Court today, and supporters of Gore and Bush might really fight in front of the White House.
4 wonderful judgment
On February 24th, 1803, the Supreme Court ruled on Marbury v. Madison by a vote of 5-0 (Justice william cushing was unable to vote due to illness). Chief Justice Marshall presided over the announcement of the court's decision.
Marshall first raised three questions in the judgment: first, did Marbury, the plaintiff, have the right to obtain the power of attorney he requested? Secondly, if the complainant has this right and this right has been violated, should the government provide him with legal relief? Third, if the government should provide legal relief to the complainant, should the Supreme Court issue an execution order requiring Secretary of State Madison to issue a power of attorney to Marbury?
Regarding the first question, Marshall pointed out: "We believe that once the president signs the power of attorney, the appointment will be made; Once the Secretary of State seals the United States, the power of attorney is completed. " "Because Mr. Marbury's power of attorney has been signed by the President and sealed by the Secretary of State, he has been appointed; Because the law that created the position gives the official the right not to be interfered by the administrative organ for a term of five years, this appointment is irrevocable. It gives the official various legal rights and is protected by national laws. " Marshall's conclusion is: "refusing to issue his power of attorney is not an act authorized by law in our court, but a violation of the legal rights granted." So the Marbury case is a legal issue, not a political issue.
For the second question, Marshall's answer is yes. He argued: "Everyone has the right to ask for legal protection when they are infringed, and one of the primary responsibilities of the government is to provide such protection. The American government has been declared a government ruled by law, not by man. If its laws do not provide remedies for infringement of the legal rights granted, it certainly does not deserve this lofty title. " Marshall even said online: "If we want to remove this shame of our country's legal system, we must proceed from the particularity of this case."
Then, according to this thinking and logic, Marshall seems to have announced that the Supreme Court should issue an injunction to Madison, Secretary of State, to reinstate Marbury and take up his post. However, Marshall suddenly changed the subject here and quoted the second paragraph of Article 3 of the Constitution as saying: "The Supreme Court has original jurisdiction over all cases involving ambassadors, other envoys and consuls, with the state as one party. In addition to the above, the Supreme Court has appellate jurisdiction over all cases. "
If Marshall's quotation is changed into plain and straightforward vernacular, that is to say, the parties in Marbury v Madison case are neither foreign envoys nor representatives of the state government, then the Supreme Court has no right of first instance for such cases. Marbury sued the wrong place. According to constitutional jurisdiction, Marbury should go to the federal district court to sue Madison. If the case finally appeals from the local court to the Supreme Court step by step, then the Supreme Court will have the right to hold a hearing.
However, Charles Lee, a lawyer hired by Marbury, a wealthy businessman, and a former federal attorney general, is not a layman who doesn't understand the proceedings. The reason why he directly submitted Marbury's complaint to the Federal Supreme Court at the beginning was based on the 1789 Judicial Regulations 1789 passed by the National Assembly in September.
In order to solve this problem, Marshall explained: Article 13 of the Judicial Regulation 1789 conflicts with the Constitution, because when it stipulates that the Supreme Court has the right to issue administrative orders to government officials, it actually expands the jurisdiction of the Supreme Court as expressly stipulated in the Constitution. If the Supreme Court implements Article 13 of the Judicial Regulation 1789, it is tantamount to openly admitting that the Congress can arbitrarily expand the power explicitly given to the Supreme Court by the Constitution.
Marshall believes that the key issue in this case is whether the Constitution controls any legislation that is inconsistent with it, or whether the legislature can change the Constitution through an ordinary law. There is no middle way between these two options. The constitution is either the supreme law that cannot be changed by ordinary means, or it is at the same level as ordinary laws, and the legislature can change it if it is happy. If it is the former, then the legislative bill that conflicts with the constitution is not a law; If it is the latter, then the written constitution becomes an absurd attempt by people and is used to limit an essentially unrestricted power. " Having said that, the sanctity of the constitution has been vividly portrayed.
Then, Marshall threw the last killer mace while the iron was hot. He categorically pointed out that "the constitution constitutes the fundamental law and the supreme law of the country", "laws that violate the constitution are invalid" and "it is obviously the authority and responsibility of the judicial department to determine what the law is". If a judge does not assume the responsibility of upholding the Constitution, it will violate the oath of office stipulated by the legislature. "It is also a crime to stipulate or take such an oath."
On this basis, Marshall officially announced the cancellation of section 13 of judicial regulations 1789, because it was unconstitutional. This is the first time in the history of the United States Supreme Court that the federal law is unconstitutional.