Was Marbury v madison an activist or restraint case?

Answer 1

~Have you read the case? Or even a summary of it? Do you understand the import of the case? Have you an inkling of a concept of the ramifications of the case?

Have you read the Constitution, particularly Article III? Can you find anything in the powers clause that accords the Court the authority to determine the constitutionality of an act of Congress or the Executive, let alone a state law or city ordinance or school district enrollment code? Now compare and contrast the last paragraph of Article I, Section 8 and ask yourself why Marshall neglected to mention it in the decision.

John Marshall's brilliance spawned Earl Warren's age of enlightenment.

Can there be an iota of doubt as to activism vis-a-vis restraint under even the most cursory analysis of THE most significant case EVER decided by the Court?


Actually, Marbury should be viewed more in terms of Supreme Court wisdom vs. Supreme Court cowardice, and the case, when viewed in the context of the times and the background of the case and events leading up to it, is a fine example of each with a little intellectual dishonesty thrown in to boot.

Marshall could have simply made his ruling based on Article III, Section 2 (clause 2) and made the ruling he was so clearly compelled to make as a matter of law. He could have ignored the Judiciary Act of 1789, § 13 entirely. The Judiciary Act was, or should have been ruled to be, irrelevant to the litigation and not otherwise addressed.

By doing so, however the Court could not have avoided the constitutional crisis that Marbury, John Adams and the Federalists had tried to create. Marshall's complicity in the scheme is uncertain. He was, after all, the Secretary of State who had sealed and then failed to deliver the commissions. His ethics are questionable, too. Given his personal knowledge of the facts of the case and his involvement in the events underlying the litigation, why did he not recuse himself due to his obvious conflict of interest? Knowing his cousin, President Thomas Jefferson, would have ignored and disobeyed the writ of mandamus he clearly had the power (and duty?) to issue, Marshall instead opted for a little name calling, a cop-out and a power grab. Given the sentiment to impeach him which was extant at the time the decision was rendered, Marshall showed more than a little moxie in not recusing himself and then in making the decision he made.

Marbury, on the other hand, could have won his case simply by filing it in a more appropriate court, either before or after the Supreme Court ruling. Given Marshall's ruling, he didn't have to bring an action at all. He simply needed to take his bench. Obviously it was not the job he was after but the constitutional crisis and turmoil the case was intended to engender. Marshall outwitted his fellow Federalists on that one and tweaked the noses of the Jeffersonians at the same time. Everything considered, Jefferson won the battle and the Court won the war. Marbury, as he intended from the beginning, packed his bags and went home.

Oh, the games the Founding Fathers played. Is it any wonder the seeds of the Civil War were already sprouting in 1803 and several New England states (yes, I mean New England) were already contemplating secession?

Had Marshall had the courage to make the proper ruling, the government and constitution could well have collapsed. His wisdom prevented that. At the same time, by contriving an unnecessary issue not germane to the litigation and inserting that issue into the case as the primary focus of the decision (ie: the efficacy of the Judiciary Act), he ostensibly refused to allow congress to expand the original jurisdiction of the Supreme Court as set forth in Article III and, in so doing, he made the greatest power grab that has ever been made by any governmental branch or agency in US history.

I trust that is sufficient for your homework?

[Hopefully you have a better understanding of the terminology in your query and a little better grasp on the parties and issues of the case than does redunico.]

Answer 2

I would say it was a restraint case. The Executive Branch tried to do something to gain power and the Supreme Court put restraints on it.