Marbury v Madison - It's Simple Once You Get Past the Complexity

By Art Cashin

On this day (-1) in 1803, the U.S. Supreme Court assumed immense power by announcing that it lacked power. In that single act it threw a curve-ball past a hostile President and redefined the Constitution. And this is how it happened.

When John Adams lost the Presidency to his adversary, Thomas Jefferson, Adams rushed to fill lots of political posts before the new guy got in. In that rush, the Secretary of State forgot to get all the appointments posted before Adams’ term expired.

So, Jefferson said the appointments were invalid and he could appoint his own guys. One of Adams’ appointees decided, in what has become an American tradition; to sue to get the job he was promised. His name was William Marbury, and he sued the incoming Secretary of State, a guy named James Madison. So, naturally when it hit the Supreme Court docket, it was called “Marbury vs. Madison” (now known as,
perhaps, the most important judicial decision in U.S. History).

The Chief Justice was a guy named John Marshall. Since he was appointed to the Court by Adams, Messrs. Jefferson and Madison figured they would not get a fair shake. So they told associates that if Marshall found for Marbury they would ignore the Court and hide all its quill pens.

So, Marshall was in a quandary. He knew that Marbury had a good case but to decide in his favor could destroy the Court. He decided to throw one of the biggest curveballs in judicial history. He wrote that Jefferson & Madison were probably wrong guys who might have put gum on folks’ seats during the Constitutional Convention. He said Marbury clearly deserved his post. EXCEPT – - – - (and this was the big one) – - – - the act under which Congress had granted to the Supreme Court the right to mediate appointment disputes (the Judiciary Act of 1789) was unconstitutional.

Thus Jefferson was presented with a decision that said – - You don’t have to give Marbury the job because I don’t have the power to make you give Marbury the job because I have decided the law that gave me that power was unconstitutional. (And now since I demonstrated that I have the power to interpret the Constitution that gives me more power than you or Congress now have.)

The decision forever changed American history, politics and government. Marshall is universally renowned as the most important Chief Justice in history (mainly for this decision). But the answer to one of the twelve best bar bets of all time (call our 900 number for clues) is – - – - who was Adams’ dopey Secretary of State, whose error set up the whole crisis. Okay so you guessed it. Yup! The same John Marshall – - himself a last minute appointment – - to the Supreme Court.

Many thanks to Mr. Cashin and UBS Financial Services who graciously allow his historical musings to be republished on this site. To enjoy more of Art’s posts simply click on “Cashin’s Comments” in the label section on the sidebar.