RMM-Episode 032: Marbury v. Madison, how a PGM of Virginia established the doctrine of Judicial Review

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Nov 11 2020 104 mins   6

In this episode Ben reads Chief Justice Marshall's opinion in Marbury v. Madison. This case founded the concept of Judicial Review integral to our Separation of Powers; a quote from Marshall is written in stone in the Supreme Court today: 

"It is emphatically the province and duty of the judicial department to say what the law is." 

Struggling to maintain legitimacy for the new Court (its first Chief Justice, John Jay, had already stated the Court lacked "energy, weight, and dignity"), Marshall, Past Grand Master of Virginia, cemented the ideal of Judicial Review almost by accident, maneuvering his opinion through a political minefield, to avoid an otherwise irreconcilable rift with the Executive. 

It is ironic that such expedience emerged so vital a tenet as the Separation of Powers.

Marbury had come to the Court to compel the new Secretary of State, James Madison, to deliver his commission papers, for a Judgeship John Adams had granted him. After losing the election in 1800, Adams had appointed a slew of judges before Jefferson took office (the so-called "midnight judges"). Once in office, Jefferson appointed Madison Secretary of State and commanded him not to deliver any commissions to Adams' men. 

Marbury came to the Supreme Court for redress, not necessarily because of any legitimacy the fledgling Court was seen to possess , but because, before becoming its Chief Justice (appointed by Jefferson), John Marshall was Adams' Secretary of State to whom the duty of delivering the commission papers had properly devolved....

Marshall's opinion is legendary - not only because of its emergence of Judicial Review, but, perhaps more importantly (though overlooked modernly) because he saved the Court in a political dodge.

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