Another semester, another section of constitutional law. This week I taught Marbury v. Madison for the umpteenth time. Beyond teaching the mechanics of the Original Jurisdiction clause and the Judiciary Act of 1789, I always try to convey to my students why Marshall wrote the opinion backwards: Why decide the merits question about the commission before the jurisdictional question? The answer, as all know, was that Marshall was trying to establish the principle of judicial review for federal legislation. (And no, he did not create judicial review; read Hamilton in Federalist No. 78.)
Yet, lurking in the background was a fear. If Marshall had in fact ordered Secretary of State James Madison, an appointee of President Thomas Jefferson, to deliver Marbury's commission, it is likely the order would have been disregarded. It is not a certainty, but there was definitely that risk. If so, Marshall recognized what would happen if his court issued an order that was ignored: the court, as an institution, would be diminished.
At this point in class, I always ask students why do people follow court orders. The usual answer is that if you ignore the court, you will go to jail. That's fine, but it is the executive branch that will actually arrest a person and incarcerate them. Judges do not get off their benches and place handcuffs on a person. As Hamilton explained in Federalist No. 78, courts have neither force nor will, only judgment. Courts depend on the executive branch to enforce their judgments.
