Marbury v. Madison

Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), argued 11 Feb. 1803, decided 24 Feb. 1803 by vote of 5 to 0; Marshall for the Court. Marbury was the first Supreme Court case to apply the emergent doctrine of judicial review to a congressional statute. William Marbury had been appointed a justice of the peace in the District of Columbia late in the administration of Federalist President John Adams. Along with a number of other Federalist partisans appointed to federal judgeships, Marbury fell within the group of “midnight judges” targeted for political attack by the incoming Republican administration of Thomas Jefferson. Marbury's signed and sealed commission remained undelivered when the new secretary of state, James Madison, took office. Madison refused to deliver the commission to Marbury, who then invoked the original jurisdiction of the United States Supreme Court, asking that the Court issue a writ of mandamus to Madison, ordering him to deliver the commission.

Congress altered the date of Supreme Court terms, thereby delaying hearing Marbury's case until February 1803. In the interval, the Federalist‐sponsored Judiciary Act of 1801 was repealed and circuit judges appointed under its provisions were dismissed. (See Judiciary Acts of 1801 and 1802.) Stuart v. Laird (1803), a challenge to the discharge of the circuit court judges, was argued on the date Marbury was decided. Justice William Paterson upheld the constitutionality of the dismissals. Newly elected Republican legislatures, at both the state and federal levels, were contemplating or bringing impeachment proceedings against Federalist judges. Republicans, including Jefferson himself, believed that, having lost at the polls, the Federalist party intended to frustrate Jeffersonian legislative programs through the power of the judiciary. This charged political atmosphere was aggravated by special circumstances present in Marbury's case. Chief Justice John Marshall had been appointed during the last months of the Adams administration and thus was virtually a “midnight judge” himself. (Ironically, Marshall was also the outgoing Federalist secretary of state who, probably because of an oversight, failed to deliver Marbury's commission.)

In his opinion for the Court, Marshall held that Marbury was entitled to his commission and that Madison had withheld it from him wrongfully. Mandamus was the appropriate remedy at common law, but the question presented was whether it was available under Article III's grant of original jurisdiction to the Supreme Court. To decide that question, Marshall was required to compare the text of Article III with section 13 of the Judiciary Act of 1789, by which Congress authorized the mandamus writ. Finding that the statute conflicted with the Federal Constitution, Marshall considered it “the essence of judicial duty” (p. 178) to follow the Constitution. He concluded that “the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument” (p. 180).13

Since affirming relief was denied, the decree in Marbury was self‐executing, and notable as an example of self‐restraint in the face of what Marshall described as an arbitrary denial of Marbury's property rights. The opinion also seemed to preach respect for those rights to Jefferson and his subordinates, and it provided the judiciary, both state and federal, with a potent weapon for protecting individual rights against the actions of legislative majorities. At the time, it was attacked in newspaper articles by Judge Spencer Roane of Virginia and Judge John Bannister Gibson of Pennsylvania in Eakin v. Raub (Pa., 1825). Critics contended then (as now) that the judiciary should not arrogate to itself the right to pass upon the validity of a legislative act. Such thinking, coupled with his personal animosity to Marshall, moved President Jefferson to encourage members of the House of Representatives to begin impeachment proceedings against Justice Samuel Chase during the summer of 1803.

Marbury was not the first case to enunciate the principle of judicial review. Precedents existed in the state courts and in the lower federal courts where judges had refrained from following a law they considered contrary to the provisions of the state or federal constitution. Marshall's was the first statement of the doctrine by the United States Supreme Court. Marshall delineated a comprehensive rationale for the practice of judicial review. He justified it by the concepts of limited government, the written constitution, and the rule of law. Colonial lawyers, most notably James Otis arguing the Writs of Assistance Case in Massachusetts (1761), had drawn upon Sir Edward Coke's statement in Dr. Bonham's Case (1610) that parliamentary statutes contrary to custom and right reason were invalid. In The Federalist no. 78 (1788) Alexander Hamilton argued that limited government required that courts of justice be empowered to “declare all acts contrary to the manifest tenor of the Constitution void,” and Marshall's opinion in Marbury reflected much of Hamilton's reasoning (See Federalist, The).

Marshall stressed the duty of judges to apply the law to cases before them. Carried to its logical conclusion, this meant that the life, liberty, and property of citizens depended upon the exercise of judicial review as a constitutional check on legislative discretion.

Marbury stands as the classic expression of judicial review in American constitutional law. It embodied what might be called “coordinate branch” judicial review. The more common form of judicial review in the federal system involves the statutes and judicial decisions of the states and the degree to which they conflict with the federal Constitution and thus violate the Supremacy Clause of Article VI. This subordination of state laws to the federal Constitution is what Professor Edward S. Corwin called the “linchpin of the Constitution,” without which the federal union would falter.

Marshall's opinion conceded that the federal government has only the limited authority conferred upon it by the terms of the Constitution; all other political power and sovereignty is reserved either to the states or to the people by the Tenth Amendment. Thus concepts of limited government most vigorously circumscribed the powers of the federal government at least before the Civil War. In Marbury, Marshall was asked to expand the meaning of the Constitution to permit Congress to grant a mandamus power not expressly given under Article III. But paradoxically, the authority to exercise judicial review was itself not conferred by any explicit constitutional provision or any act of Congress. The decision asserted one power even as it rejected the proffer of another.

The Court did not again exercise its power of “coordinate branch” judicial review until 1857 when it held the 1820 Missouri Compromise unconstitutional in the case of Dred Scott v. Sandford. After 1868, judicial review of state statutes and decisions has become more frequent in Supreme Court jurisprudence owing to the expanded functions of the federal government and the creation of American citizenship, with attendant rights under the Fourteenth Amendment. Dred Scott undermined a political compromise over slavery's expansion into the territories. It also dealt with the issue of federal jurisdiction—that is, whether diversity of citizenship conferred jurisdiction on the lower federal court over slavery's freedom suits. Chief Justice Roger B. Taney invoked a “higher law” than the Constitution in an effort to defend owners' property rights in slaves, just as antislavery publicists urged moral and natural law principles in support of federal power to abolish or restrict slavery. By 1900, the federal judiciary, led by the Supreme Court, evolved the principle of substantive due process to restrict state and federal legislative power to regulate economic enterprise. This required a broader concept of judicial review than had been provided in Marbury.

The Supreme Court's decision in Cooper v. Aaron (1958) marked the high tide of expanded judicial review. Citing Marbury, the unanimous Court declared that “the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since [Marbury] been … a permanent and indispensable feature of our constitutional system” (p. 18). Cooper v. Aaron slighted the fact that presidents have vetoed legislation on constitutional grounds (Andrew Jackson's veto of the Maysville Road bill in 1830 being one example), and that Chief Justice Marshall had always been careful to defer to the political branches—Congress and the president—when important matters of domestic and foreign policy were involved.

Although the significance of Marbury has been enlarged over time, the case remains one of the fundamental judicial opinions in American constitutional history. It correctly assessed the role of the judiciary in maintaining constitutional limitations on legislative action; it provided a rationale for subjecting statutes to constitutional examination; it commanded judges to abide by constitutional norms, and it recognized the limited jurisdiction of all federal courts.

See also Judicial Power and Jurisdiction; Judicial Review.

Bibliography

Robert L. Clinton , Marbury v. Madison and Judicial Review (1989).
Edward S. Corwin , John Marshall and the Constitution: A Chronicle of the Supreme Court (1921).
Grove Charles Haines , The American Doctrine of Judicial Supremacy, 2d ed. (1959).
George L. Haskins and and Herbert A. Johnson , History of the Supreme Court of the United States, vol. 2, Foundations of Power: John Marshall, 1801–15 (1981).

Herbert A. Johnson