The latest prisoner votes judgment may be our Marbury v Madison – Jamie Fletcher & Charlie Eastaugh

20 October 2013 by

Marbury_v_Madison_John_Marshall_by_SwatjesterAt first glance, prisoner voting proponents may interpret the Supreme Court’s R (Chester) v Justice Secretary decision (see Adam Wagner’s previous post as a defeat for advancing prisoner voting rights in the UK. This blog post offers a different perspective. By comparing Chester to the seminal US Supreme Court case of Marbury v. Madison, we summarise that such proponents should take a step back and see the wood, rather than merely the trees. This is because Lord Mance’s Chester judgment offers human rights advocates, and therefore supporters of prisoner voting rights, an unequivocal foundation from which to defend future human rights claims.

Chester does not achieve the same ends as Marbury. Marbury established the institution of judicial review in the United States, against Congressional legislation. Chester does not disturb the supremacy of the UK Parliament. Comparison arises within the strategies of the leading judgments in each case. Chief Justice Marshall’s judgment in Marbury is celebrated not only for its conclusion, that the Constitution of the United States is the highest form of law and therefore “it is emphatically the province and duty of the judicial department to say what the law is”, but also for how it reached that conclusion.

Understanding Marbury’s facts is a prerequisite to appreciating the genius of Marshall’s judgment. The case concerned judgeship commissions granted under the Judiciary Act of 1801. After John Adams’ and Federalist Party’s defeat in the 1800 election, just one day before Jefferson took the Democratic-Republicans to the White House, Adams swelled the judiciary with federalist synthesisers to stem the tide of Jeffersonian democracy. Adams, in one such commission, had appointed William Marbury. Marbury’s commission, however, not been delivered before the end of Adams’ term. Upon taking office, Jefferson ordered his Secretary of State not to deliver Marbury his commission. Marbury motioned the Supreme Court for a writ of mandamus which would force the Jefferson Administration to grant his license.

There are three facets to Chief Justice Marshall’s Marbury judgment, which have gained it admiration, each of which Lord Mance seemingly replicates in Chester. The first of these tactics is the ‘red herring’. In interpreting Article III of the US Constitution, Marshall resolved that the Supreme Court did not have the power hear Marbury’s case because Marbury’s claim was not contained within the Constitution’s exhaustive list of the types of cases, which the Court can hear. In extending the Court’s ‘original jurisdiction’, Congress acted beyond its powers when enacting the Judiciary Act of 1801. Similarly, Lord Mance dismissed Chester’s appeal because, irrespective of any legislative amendments to the law prohibiting prisoner voting, he could surmise “with considerable confidence that the ban on Chester’s voting is one which the United Kingdom Parliament can, consistently with the Convention right… maintain.”

Both of these decisions are red herrings because, while they dismiss the present cases based on procedural or logical issues, the remainder of the judgments’ substance offers advocates great hope. While Marbury and Chester may represent immediate losses, in the long term we predict they will both become victories. Just as Marbury represented a victory because it established the institution of judicial review, Chester will become a victory for the foundations it provides the court when dealing with human rights law.

The second aspect of Marshall’s judgment, which turned Marbury into a victory for judicial review in the United States, demonstrates how Chester can also transform into a victory for prisoner voting advocates. Marshall opined, regardless of the procedural reasons preventing the U.S. Supreme Court from enforcing their decision, that Marbury’s commission was complete upon President Adams’ signing. In this part of his judgment, Marshall made a principled point that, despite the procedural issues that prevented Marbury’s commission – substantively – Marbury had a legal right to his commission. The only issue that prevented Marshall from granting Marbury his commission was that the Supreme Court did not have the power to hear his case.

Similarly, in Chester, Mance declared that the ECtHR jurisprudence formed “a clear and consistent line of decisions” (following Lord Neuberger in the 2010 case of Pinnock) , and that within this framework, the current “general ban” remains a “general, automatic and indiscriminate restriction on a vitally important Convention right”.

Strategically, therefore, both Marshall and Mance expounded law unnecessarily in their judgments, mooting abstract issues. A critique of both judgments is that making such abstract statements is superfluous; it goes beyond merely passing judgment. Nevertheless, Mance, like Marshall, felt these points necessary to declare, even if they did not relate to the immediate case. This indicates how the Court will probably act in future cases. While both Marbury and Chester, may fail, Marbury on procedural grounds, and Chester for logical and factual reasons, substantively it seems unlikely from Mance’s judgment future cases, dealing with less extreme inmates, will fail.

Thirdly, Chester is also comparable to Marbury because – implicitly within his judgment – Mance declares the future (expansive) role of the courts in human rights cases. Mance’s judgment leaves no doubt about whose job human rights adjudication is, and in relation to the current law, who decides on its application. This creates a parallel between Chester and Marbury’s most important function; of outlining the judiciary’s role in expound the law. In Marbury, it is clear that if the Constitution is law, it is the U.S. Supreme Court’s job to expound its meaning. Whereas in Chester the U.K. Supreme Court establishes that, only in narrow circumstances – so long as the HRA incorporates the ECHR into our law – can the government depart from it.

Marshall’s judgment held that the Supreme Court had the power to review Acts of Congress and to judge their constitutionality. While Mance did not declare judicial supremacy, he dismissed the Attorney General’s (AG) arguments, outlining the Court’s powers in future human rights cases. Chester limits future claims by the government that the courts should depart from jurisprudence of the ECtHR.

To achieve this Mance rejects the AG’s appeal that governments should have a wide margin of appreciation. The fact that prisoner voting did not represent a “fundamental substantive or procedural aspect of our law” meant for Mance that the government’s margin of appreciation should not be expanded. Consequentially, the case did not count as one of the “rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process.” Mance’s judgment, therefore, confirms that future governments possess an extremely narrow claim that Strasbourg jurisprudence should be departed from when it suits majorities or the national government. It is in this sense that Mance channels his inner Marshall and how Chester could be interpreted as providing us with a ‘Marbury moment’.

Strategic coup

Combined, these three facets form what Weinberg has labelled a ‘strategic coup’. Marbury secured the long-term foundations of the judiciary’s role in American democracy, while at the same time displaying an acute understanding of its own political limits as a non-majoritarian institution. While Chester does not establish an American structure of judicial review, it is confirmation that “[d]emocracy is about more than respecting the views of the majority, but also about safeguarding minorities, popular or otherwise. Moreover, it confirmed that the court would only depart from Strasbourg jurisprudence in a narrow set of circumstances. All this, despite the fact that Marbury never got his commission, nor Chester the right to vote while imprisoned.

While Alexander Hamilton affirmed that the judiciary “will always be the least dangerous” branch of government, controlling neither the sword nor the purse, it is important to remember that courts must “tread delicately”. Mance had to realise in Chester – as Marshall in Marbury – that, when constructing his judgment, he could not depart too radically from, or stand in direct opposition to, democracy’s majoritarian institutions. After all, as President Andrew Jackson is believed to have once said, “John Marshall has made his decision; now let him enforce it!” Had Marshall granted Marbury his commission, or Mance granted Chester’s right to vote, how would either of them have enforced their judgments?

In the face of such democratic opposition, and without power over neither the purse nor the sword, such a coercive act seems impossible. Nevertheless, it is the hypothesis of this blog post that Mance’s judgment in Chester should as revered as Marshall’s in Marbury. While prisoner voting proponents may be immediately disheartened by Mance’s conclusions, how Mance arrived at those decisions should provide them with much confidence about future human rights protection.

Jamie Fletcher, Lecturer in Law, University of Winchester, Twitter- @jimifletch

Charlie Eastaugh, PhD Candidate, University of Surrey

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  1. Dan Bunting says:

    Interesting article. Like the above posters, I doubt that this is a ‘Marbury’ moment, and I think that it may be reading too much into Mance’s speech to say that. For example – 73 – “I reject the submission that the Supreme Court could or should simply disapply the whole of the legislative prohibition on prisoner voting”

    I think it is interesting to see the difference in political (with a small p) views, particularly between Sumption and Kerr (historically) and Hale here.

    If you are looking for Marbury, there’s more hope with Hale – for example para 88 “Of course, in any modern democracy, the views of the public and Parliamentarians cannot be the end of the story. Democracy is about more than respecting the views of the majority. It is also about safeguarding the rights of minorities, including unpopular minorities. “Democracy values everyone equally even if the majority does not”: Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 132. It follows that one of the essential roles of the courts in a democracy is to protect those rights.”

    But we are a long way from our Judges stepping up like Marshall did. Maybe, like our revolution, we had our Marbury moment too early for it to stick? Coke CJ in Dr Bonham’s Case said ” in many cases the common law will control Acts of Parliament and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right or reason, or repugnant, or impossible to be preformed, the common law will control it and adjudge such Act to be void”. It never caught on properly.

    1. ObiterJ says:

      It is interesting to note Lady Hale’s obiter dictum at paragraph 90 – ‘If there is a Constitution, or a Bill of Rights, or even a Human Rights Act, which guarantees equal treatment in the enjoyment of its fundamental rights, including the right to vote, it would be the task of the courts, as guardians of those rights, to declare the unjustified exclusion unconstitutional.’

  2. ObiterJ says:

    I am not entirely sure about the longer term implications of this case. It seems difficult to forecast whether the case will prove to be beneficial to human rights protection or not. It may be that the rejection of the Attorney-General’s ‘forceful submissions’ (per Lord Mance) will play into the hands of those who seek to distance the UK from Strasbourg. On the contrary, it may be that the decision to follow the clear line of Strasbourg decisions will set a marker for other areas of dispute and enhance protection for rights.

  3. frednach says:

    I do not know the whole facts of this case in Chester, but if it be compared to Marbury v Maddison then a few facts need to be pointed out. The US has alas a written constitution unlike the UK with Supreme Court judges politically appointed with long tenure (hence Burger court, Taney, Warren), thus usually, the political master can hardly be seen to undermine his appointee and vice versa (indeed, it can be argued Bush won the election on account of Chief Justice Reqhuest whom he appointed to strival all the votes in Florida), in contrast to the UK with judges ‘independently’ selected on the direction of the Lord Chancellor et tal aided by common law principles.

    Justice Marshal made a further memorable in roads in to the role of the judiciary and the old constitution by declaring that, the constitution was a ‘living, breathing instrument’ meaning amenable to judicial scrutiny to meet the demands of the era or change, if it was to meet the modern demands a constitution must be flexible and adaptable. Thus what constitutes for example cruel and unusual punishment forbidden by the constitution today is not necessarily the same as yesteryear. Like wise the debate over prisoner’s voting rights is akin to that debate about the role of the UK courts to evaluate precedents or change of sea air in European jurisprudence- a blanket ban may in seen in time irrational or incompatible against ECHR, but what is the difference between a ‘dangerous prisoner’ or convict and a dangerous reformist such as a Judge of the Marshal Harland caliber with one with denied the vote and one with the freedom to vote with impunity, perhaps?

  4. (i) “offers human rights advocates, and therefore supporters of prisoner voting rights”

    Perfectly possible to advocate human rights, but think that depriving someone of liberty of movement is much more serious than depriving them of the power to vote, so that if the former is justifiable, the latter is a fortiori. there is no legitimate ‘therefore’ here.

    (ii) Who exactly are you claiming disputes that the ECtHR has clearly said that a general ban on UK proisoner voting is incompatible with the Convention? Why would anyone think that Mance re-stating the obvious was significant?

    (iii) This post is, frankly, ridiculous. Comparing Chester generally, the result of which was never in doubt, and the rather bland judgement of Mance specifically with Marbury v Madison.takes hyperbole to a new level.

    1. Steve Greer says:

      I completely agree with the above. Without bothering to waste time on pointing out the very many flaws that litter this post, suffice to say it shows a complete lack of understanding of the HRA and its case law.

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