The 2000 U.S. presidential election ended with a peculiar situation in which Supreme Court justices "elected" the president. Although the Democratic presidential candidate, Al Gore, was unconvinced by a hundred in his heart and was backed by the will to win the majority of the popular votes, he had to show complete respect and obedience to the authority of the Supreme Court on the surface and honestly declare the defeat of the campaign.
Who gave the Supreme Court such enormous political power? Is it the Constitution? No. The U.S. Constitution only stipulates the government structure of the separation of powers and checks and balances between the executive, legislative, and judicial powers, and does not explicitly give the Supreme Court the ultimate authority to give a hammer.
Is it voters and public opinion? Of course not. No one may dare to believe that the supreme political power of the Supreme Court is given to them by the Supreme Court justices themselves. In 1803, The Supreme Court's Chief Justice John Marshall, through his decision in Marbury v. Madison, initially established the supreme authority of the Supreme Court in the political life of the United States.
■ I. Partisan Struggle Judges Appointed by Starry Night
William Marbury is a 41-year-old wealthy businessman in Georgetown, Washington, D.C.; James Madison was a founding father of the United States and was secretary of state of the United States at the time. What is the political background of the wealthy businessman Marbury? Why did he sue Secretary of State Madison? Speaking of which, this extremely far-reaching litigation case was directly related to the partisan struggle in the US political arena at that time.
On January 20, 1801, President Adams appointed Secretary of State John Marshall as Chief Justice of the Supreme Court. After the Senate approved, Marshall officially took up his post on February 4, but he still acted as secretary of state, but did not receive the secretary of state's salary. This continued until the expiration of Adams' term on 3 March 1801. Then, before the new president came to power and the new Congress convened, the Federalists in Congress passed the Judiciary Act of 1801 on February 13, 1801, which reduced the quorum of the Supreme Court from six to five to prevent a stalemate in judgment. But in fact, since this provision will not take effect until after the retirement or death of any current justice, one of its purposes is clearly to reduce President Jefferson's chances of nominating a Democratic Republican to the position of justice. At the same time, it increased the number of Federal Circuit courts from three under the Judiciary Act of 1789 to six, thereby adding 16 federal circuit judge positions. In this way, the soon-to-be-ounce "lame president" Adams could take the opportunity to arrange for more Federalists to enter the federal judiciary before leaving office. Two weeks later, the Federalist-controlled Congress passed the Organic Act for the District of Columbia, officially establishing washington, D.C., and authorizing President Adams to appoint 42 Justice of the Peace for a five-year term. On March 2, 1801, President Adams nominated an all-colored Federalist to be magistrate, and William Marbury was on the list. The next day, on the night of Adams' departure from office (March 3, 1801), the incoming Senate hastily approved the appointment of 42 magistrates. Later generations ridiculed the judges as midnight judges.
■ 2. The obstruction of the official movement marbury sued the court
According to the regulations, all pleadings of appointment of magistrates should be signed by the President and sealed by the State Council before they can take effect. It was the time of the handover of the old and new presidents, and John Marshall, who was about to hand over the new secretary of state and prepare to preside over the swearing-in ceremony of the new president as chief justice, was so busy and dizzy that, due to negligence and hecticism, seventeen appointment orders could not be sent out in time before Marshall left office (Marshall admitted in a letter to his brother: "I am afraid that all kinds of blame will be blamed on me", "due to extreme hectic and the absence of Mr. Wagner [Marshall's assistant at the State Department]". As a result, the judge's letter of appointment, which had already been signed and sealed, was not sent in time), and Marbury happened to be among the unlucky ones.
Although Marbury's family was rich, he had lost his judge's position inexplicably, and he felt that he was too wronged to ask for an explanation. So Marbury pulled up three other brothers and sisters who shared the same illness and hired attorney general, who had served as the attorney general of President Adams' cabinet. The Attorney General is now generally translated as Attorney General. Although the position was created in 1789, it was only a part-time cabinet position, and it was not until William White's tenure that he became a full-time position—even then he remained a light commander, because the Justice Department was not established until 1870, and only then could he be called attorney General Charles Lee, who took Secretary of State Madison to the Supreme Court. They demanded that the Supreme Court issue an enforcement order (the original text is writ of mandamus, also translated as a writ of instruction, which in Anglo-American common law refers to an order issued by a judge with jurisdiction to a lower court, government official, institution, legal person, or individual requiring him to perform his or her legal duties), and ordering Madison to hand over the letter of appointment in accordance with legal procedures so that he can take office. The prosecution counsel's prosecution is based on section 13(d) of the judiciary act of 1789, which states that the Supreme Court of the CommonWealth has the power to issue an execution warrant against any persons holding office appointed under the authority of the United States in cases guaranteed by legal principles and practices.
As soon as Madison saw that his opponent was not small, he came to block and equalize, and asked Levi Lincoln, the attorney general of President Jefferson's cabinet, to serve as his defense lawyer. This Mr. Lincoln really deserved to be the current attorney general, and he handled the case with such a grand deal that he did not even bother to go to the court after taking the case, but only wrote a written argument and sent it to the Supreme Court, claiming that marbury v. Madison was a political issue involving a partisan power struggle, had nothing to do with the law, and could not control this kind of partisan struggle that was not clear at all.
After receiving the complaint from the prosecution counsel and the written argument sent by the defense counsel, Justice Marshall, on behalf of the Supreme Court, wrote to Secretary of State Madison asking him to explain the reasons for the seizure of the warrant. Who would have thought that Madison would have ignored Marshall's letters. In the legal and historical environment at that time, Madison's behavior of being blind and lawless was a common thing, because the Supreme Court of the United States was really a judicial organ that lacked authority at that time. The constitutional sage Alexander Hamilton once commented: "The judiciary has neither military power nor financial power, cannot control social forces and wealth, and cannot take any initiative" and is "the weakest of the three separate powers" Although the U.S. Constitution, which came into effect in 1789, stipulated the division of powers and checks and balances between the executive, legislative, and judicial powers, this constitution and the constitutional amendments added later have never made any clear provisions on the ownership of the final power of interpretation of the constitution. This Constitution does not give the Supreme Court the privilege of giving dictates and dictates to the highest executive and the national legislature, let alone to force the president, the secretary of state, and congress to obey the Supreme Court's decisions.
In this way, the case of Marbury v. Madison actually put Archbishop Marshall in a dilemma of left and right, and there is no doubt that he will lose. He could, of course, formally issue an execution order ordering Madison to issue a letter of appointment in accordance with legal process. But Madison, backed by President and Commander-in-Chief jefferson of the U.S. Military, could have turned a deaf ear to the Supreme Court's enforcement order. If the Supreme Court, which has neither money nor a sword, forcibly issues orders to Secretary of State Madison and is ignored, it will only make the people of the world laugh off their teeth and further weaken the judicial authority of the Supreme Court. However, if Marshall refuses Marbury's reasonable litigation demands, it will be tantamount to voluntarily conceding defeat, admitting that the Supreme Court lacks authority and is unable to challenge the lawlessness of senior officials in the executive branch, which is not only ashamed of the Federalists in the same camp, but also disgraces the Supreme Court.
Whether to judge or not to try has become a major problem that has caused Marshall extreme headaches. After more than half a month of painstaking contemplation, he finally figured out a wonderful verdict with the best of both worlds, which surprised and praised the case to posterity. Marshall's decision not only demonstrated the unique authority of the judiciary, but also avoided head-on collisions and direct conflicts with the executive and Congress, laying the foundation for the establishment of judicial review, an important power in the system of separation of powers and checks and balances.
■ Third, the wonderful judgment of clever escape from the predicament is amazing
On 24 February 1803, the Supreme Judge granted a 5-0 vote (Justice William Cushing did not vote due to illness) in marbury v. Madison. Chief Justice Marshall presided over the announcement of the court's judgment.
Marshall first raised three questions in his judgment: First, was the complainant, Marbury, entitled to the letter of appointment he had requested? Secondly, if the complainant has this right and this right is violated, should the Government provide him with legal remedies? Third, if the government should provide legal relief to the complainant, should it be up to the Supreme Court to issue an enforcement order requiring Secretary of State Madison to distribute the letter of attorney to Marbury?
On the first question, Marshall pointed out: "This Court holds that the appointment is made as soon as it is signed by the President, and completed as soon as the Secretary of State affixes the Seal of the United States." "Since Mr. Marbury's letter of appointment has been signed by the President and affixed with the seal of state by the Secretary of State, he has been appointed; since the law which created the post conferred on the official the right to serve for 5 years without interference by the executive, the appointment is irrevocable and the legal rights conferred upon the official are protected by the laws of the state." Marshall concluded that "the refusal to issue his letter of appointment is, in the court's view, not an act authorized by law, but a violation of the legal rights conferred upon him." So, the Marbury case is a legal issue, not a political one.
Marshall's answer to the second question was also yes. He argued: "Everyone has the right to claim the protection of the law when they are violated, and one of the primary responsibilities of the government is to provide this protection." The government of the United States is proclaimed to be a government governed by the rule of law, not a government governed by man. If its laws do not provide remedies for violations of the legal rights conferred upon it, it certainly does not deserve this noble title. Marshall even went on the line and said: "If we want to get rid of this shame in our country's legal system, we must start from the special characteristics of this case."
Then, if we continue to deduce according to this line of thought and logic, in answering the third question, Marshall seems to have taken it for granted that it is time for the Supreme Court to issue an enforcement order to Secretary of State Madison to reinstate Marbury from his post and take up his post. However, Marshall took a sudden turn here, citing article 3, paragraph 2, of the Constitution as saying: "The Supreme Court has original jurisdiction in all cases involving ambassadors, other envoys and consuls, and the state as a party." The Supreme Court has appellate jurisdiction over all other cases other than those mentioned above. ”
If Marshall's above quotation is replaced by an easy-to-understand and straightforward vernacular, that is to say, the parties to Marbury v. Madison are neither foreign envoys nor representatives of the state government, so the Supreme Court has no first-instance jurisdiction over such cases of small people suing the government. Marbury sued the wrong place. Under constitutional jurisdiction, Marbury was to go to the U.S. District Court to sue Madison. If the case is ultimately appealed from the district court to the Supreme Court, then the Supreme Court has the power to hear it.
However, Charles Lee, the former attorney general of the federal attorney general Hirbery, who was hired by the wealthy businessman Marbury, was not a layman who was ignorant of the procedure, and the reason why he initially submitted Marbury's complaint directly to the U.S. Supreme Court was based on section 13 of the Judicial Act of 1789, adopted by Congress in September 1789.
In response to this question, Marshall explained: Section 13 of the Judiciary Act of 1789 is in conflict with the Constitution, because when it provides for the power of the highest court to issue enforcement orders to government officials, it actually expands the jurisdiction of the Supreme Court expressly provided for in the Constitution. If the Supreme Court implements section 13 of the Judicial Regulations of 1789, it will be tantamount to a public recognition that Congress can arbitrarily expand the powers expressly granted to the Supreme Court by the Constitution.
Marshall argues that the key question in the case is "whether the Constitution will govern 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 a supreme law that cannot be changed by ordinary means, or it is on the same level as ordinary law and can be changed when the legislature is happy. If it is the former, then the legislative bill that conflicts with the Constitution is not the law; if it is the latter, then the written constitution becomes a ridiculous attempt by people to limit an inherently unrestricted power. At this point, the sanctity of the Constitution is about to be revealed.
Then, Marshall threw the final killer while the iron was hot. He pointed out categorically: "The Constitution constitutes the fundamental law and the supreme law of the state," "Laws that violate the Constitution are invalid," and "judging what a law is obviously the function and responsibility of the judicial organs." If a judge does not assume the responsibility of upholding the Constitution, he violates the oath of office prescribed by the legislature, and "it is also an offence to prescribe or take such an oath."
Accordingly, Marshall officially declared that section 13 of the Judiciary Ordinance 1789 had been repealed as unconstitutional. This is the first time in the history of the US Supreme Court that a federal law has been declared unconstitutional.
■ Iv. The principle of judicial review of institutional innovation was pioneered
When Marbury saw that he had taken such pains to become a magistrate, he even made a white note that the president had signed it and the State Council had stamped it, and if he wanted to appeal from the grass-roots court to the Supreme Court, he did not know that he would have to wait until the year of the monkey. Discouraged, he had to withdraw the indictment. He later became the president of a large bank, much more affordable than being a magistrate.
On the face of it, The Federalist Marbury did not become a judge, And Madison did not issue a warrant for the detention of judges, and Marshall appeared to have lost the case. But in reality, Marshall was the real big winner in the case.
First, Marshall announced to the national legislature, Congress, through this case, that not only is the Constitution above all laws, but the vital power to determine whether the laws themselves conform to the Constitution have nothing to do with the legislature. In other words, the legislature may not legislate at will, and only the Supreme Court is the ultimate arbiter of all issues related to law.
Second, Marshall announced through this case to the country's highest executive branch that the final interpretation of the Constitution rested with the judiciary. Thus, the judiciary has the power to determine whether the acts and administrative orders of the executive authorities are unconstitutional and to sanction the unconstitutional acts and orders of the executive authorities. Thus, although the Constitution stipulates that any law should be decided and passed by Congress and the President, the Supreme Court has the ultimate power to interpret the law and has the power to determine whether the law is unconstitutional. The Supreme Court's decision, once rendered, becomes a final ruling and a constitutional practice that must be observed by all branches of government and the Länder. Therefore, the Supreme Court not only has the power of judicial review, but also, in a certain sense, the "right to finalize the law." American scholar Alpheus T. Mason believes that compared with the British crown, the US Supreme Court is not only a symbol of authority, but also holds real power, "it can make Congress, president, governor and legislators submit to submission."
Marshall's cleverness lies in the fact that on the surface his approach is seamless, because the act of declaring section 13 of the Judiciary Ordinance 1789 to be revoked as unconstitutional is a restriction on the Supreme Court's own competence, so Congress cannot find any excuse to confront the Supreme Court, nor is there any reason to impeach the Supreme Court justices. In addition, although Marshall declared that the judiciary had the power to determine whether the administration's actions were unconstitutional, he did not issue an enforcement order to Secretary madison, but only recommended that Marbury go to the lower court to sue Madison. In this way, the administration will also find no excuse to live with the Supreme Court, nor will it be able to challenge Justice Marshall's ruling. In fact, Democrats like Jefferson are prepared that they won't enforce even if the Supreme Court issues an enforcement order. However, the road was one foot high and the devil was one foot high, and Marshall came to a bright repair boardwalk, and while fighting for Marbury's reputation, he avoided the trap set by the Democratic And Republicans and turned the judgment to the fundamental issue of whether the law and the constitution were more important or less.
The U.S. legal system is a combination of statute law and case law, and since the legislature and executive branch cannot overturn the Supreme Court's decision in Marbury, this decision will be cited forever as a constitutional practice in accordance with the principle of stare decisis in the Common Law system. According to statistics, in the subsequent judgments of the Supreme Court, the Marbury case ranked first in the number of cited cases, hundreds of times.
The judicial review power of the federal courts, which has been gradually established on the basis of this classic case, includes a considerable amount of content: first, the federal courts are the final judges of the constitutionality of the legislation and acts of the federal and executive branches; second, the federal courts are the final judges of the constitutionality of the legislation and acts of the state legislature and executive branch; and third, the federal courts, and in particular the Federal Supreme Court, have the power to review the statutes of criminal and civil procedure of the state courts to determine whether these procedural regulations meet the requirements of the Federal Constitution.
Through the ruling in the Marbury case, on the one hand, Marshall strengthened the position of the federal judiciary to compete with the other two government departments, so that the judicial department began to stand on the same footing with the legislative and executive branches; on the other hand, it enhanced the prestige and reputation of the Supreme Court as a government agency, making the Supreme Court the ultimate interpreter of the Constitution. It can be said that this is a great milestone in the history of the American political system and the history of the human political system. More than a hundred years later, U.S. Supreme Court Justice Benjamin N. Cardozo exclaimed, "Marshall has deeply imprinted his ideological imprint on the American Constitution." Our constitutional law takes on its current form because Marshall tempered it with the blaze of his own convictions while it was still elastic and malleable. Jean E. Smith, author of Marshall's biography, praised: "If George Washington created America, John Marshall affirmed the American system."
Today, two hundred years later, in the Museum of The History of the Supreme Court of the United States, only Justice Marshall enjoys the special treatment of a full-body bronze statue. On the walls of the nine justices' dining rooms, portraits of Marbury and Madison hang side by side, as if to remind every justice that a soup and a meal are not easy to come by.
Had it not been for Justice Marshall's astonishing and brilliant decision in Marbury v. Madison, I am afraid that there would be no supreme authority in the Supreme Court today, and Gore and Bush's respective supporters might have waged a real war in front of the White House.