The Most Dangerous Branch of Government

Following Adams's defeat in one of the most volatile presidential contests in American history, a bitter Federalist Congress expanded the judiciary and Adams rushed to fill the new slots with "midnight" appointees. As Secretary of State, Marshall was tasked with delivering the commissions to the new appointees. It was a task he was unable to complete.

The new Secretary of State, James Madison, was ordered by the new President, Thomas Jefferson, to cease delivery of the commissions. And this precipitated a lawsuit from one of Adams's appointees. The case found its way to the United States Supreme Court, an entity seen by many as unimportant and impotent -- and with good reason.

Yet an interesting twist was at work. One of Adams's "midnight" appointments was to make John Marshall the new Chief Justice of the Supreme Court. Thus, when Marbury v. Madison came before the Court, it was Marshall (faced with arguably a conflict of interest, given his role in delivering Adams's commissions) who would hear the case.

In one of the most clever and brilliant decisions ever rendered, Marshall (backed by his colleagues on the Court) ruled that Mr. Marbury was entitled, under the Judiciary Act, to his appointment. This was a slap in the face of President Jefferson. But lest this decision set up an unwanted confrontation with the popular new President, Marshall quickly added that the applicable portion of the statute was unconstitutional and thus invalid. Therefore, there was nothing the Court could do for Marbury.

Marshall had given Jefferson a victory on the matter itself, though he had slapped him on the wrist. More importantly, however, by restricting the Court's ability to intervene on the matter at hand, he set the precedent for a much more powerful form of intervention: judicial review.

In doing so, Chief Justice John Marshall gave teeth to what The Federalist mildly asserted and the text of the Constitution itself only alluded to, namely that the judicial branch serves as the primary arbiter of constitutionality. And, within that framework, it is the right of the judicial branch to rule a given law or statute "null and void" when it violates the Constitution.

Marshall served for thirty-four years on the High Court, elevating the judicial branch from a vague and barely consequential branch of government to a formidable institution that guards the Constitution itself. While he would himself be surprised and perhaps uncomfortable with how activist the

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