MARBURY V. MADISON

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), established the power of judicial review in the U.S. Supreme Court. This power, which was later extended to all federal courts, authorizes the federal judiciary to review laws enacted by Congress and the president and to invalidate those that violate the Constitution.

The power of judicial review also permits federal courts to compel government officials to take action in accordance with constitutional principles, as the Supreme Court did when it ordered President richard m. nixon to release tapes he had made of conversations at the White House regarding a series of scandals that began with the burglary of the Democratic party's national headquarters in the watergate office complex in June 1972. Finally, judicial review empowers federal courts to decide legal issues raised by state constitutions, statutes, and common-law decisions that touch upon a federal constitutional provision.

Judicial review is also routinely exercised by state courts over state and federal constitutional questions. Unlike the federal power of judicial review, which derives from Marbury, the state power of judicial review usually derives from an express provision in a state constitution.

Marbury was an outgrowth of political struggles between the Federalist and Republican parties during the late eighteenth and early nineteenth centuries in the United States. These struggles began as a dispute between the Federalists and Anti-Federalists over the ratification of the Constitution.

The Federalists, including alexander hamilton and john jay, supported ratification of the Constitution as a means of creating a stronger national government that would replace the feeble central government formed under the articles of confederation. The Federalists believed that a strong national government was necessary to promote economic growth and geographic expansion and to protect U.S. citizens from internal and external aggression. The Anti-Federalists, including george mason and patrick henry, opposed ratification because they feared it would create a despotic national government that would vitiate state sovereignty and be unresponsive to local interests.

After the Constitution was ratified by the states, many disgruntled Anti-Federalists joined the republican party. Like their Anti-Federalist predecessors, the Republicans worked to curtail further growth of the national government, drawing their constituency from farmers and mechanics. The Federalists, meanwhile, sought an increased role for the national government, including the establishment of a federal bank, and drew their constituency from wealthy property owners and mercantilists.

During the administration of john adams (1797–1801), Federalists controlled the executive and legislative branches of the federal government and permeated the federal judiciary as well. However, the political tides turned against the Federalists during the elections of 1800, when the Republicans wrested control of both houses of Congress and thomas jefferson, their party leader, was elected president. Determined not to lose all its influence over the national government, the lame-duck Federalist Congress passed legislation that created a host of new federal judgeships and called for the appointment of 42 justices of the peace in the District of Columbia.

In the haste of filling these vacancies during the waning hours of his last night in office, President Adams neglected to deliver the commissions (warrants issued by the government authorizing a person to perform certain acts) of several appointees. One of the so-called midnight appointees who did not receive his commission was William Marbury. After Jefferson ordered Secretary of State james madison to withhold Marbury's commission, Marbury petitioned the Supreme Court for a writ of mandamus (a court order requiring an official to perform his duties) to compel Madison to deliver the commission.

The case was heard before Chief Justice john marshall and four associate justices. Marshall was one of the "midnight judges" President Adams had appointed to the federal bench during his last few months in office. Prior to his appointment to the Supreme Court, Marshall had served as secretary of state for the Adams administration. Ironically, it was Marshall who, serving in a dual capacity as the secretary of state and chief justice, had failed to deliver the commission to Marbury. None of these facts presented a sufficient conflict of interest for Marshall to disqualify himself from hearing the dispute.

Marshall's opinion, written for a unanimous Court, was divided into five parts, the first three being the least controversial. First, the Court held that Marbury had a legal right to serve as justice of the peace and was entitled to receive the commission memorializing that right. Marbury had been nominated for the office by the president and confirmed by the Senate, in accordance with the procedures set forth in the Constitution. When President Adams signed the commission and affixed the seal of the United States to it, the appointment was "complet[e]." Delivery of the commission was a mere "convenience" that did not interfere with Marbury's legal right.

Second, the Court ruled it was a "plain violation" of this right for Madison to withhold the commission. When a commission has been signed and sealed by the executive branch following a nominee's appointment and confirmation, the secretary of state, Marshall said, has a "duty" to "conform to the law" and deliver it as part of his "ministerial" responsibilities.

Third, the Marshall opinion said a writ of mandamus was the proper remedy because mandamus is a "command" directing "any person, corporation or inferior court of judicature … to do some particular thing … which appertains to their office and duty."

Marshall's opinion next addressed the question of whether the Supreme Court had the power to issue Marbury the writ. This question turned on the Court's jurisdiction. Article III of the U.S. Constitution confers upon the Supreme Court two types of jurisdiction: original and appellate. Original jurisdiction gives courts the power to hear lawsuits from their inception, when a complaint or petition is "originally" filed with the tribunal. Appellate jurisdiction gives courts the power to review decisions that were made by lower courts and have been "appealed" in order to reverse a purported error. Under Article III, the Supreme Court has original jurisdiction over politically sensitive disputes such as those "affecting ambassadors" or those in which one of the 50 states is named as a party. In all other cases, the Supreme Court retains appellate jurisdiction.

In petitioning the Supreme Court directly for a writ of mandamus, Marbury was asking the Court to invoke its original jurisdiction pursuant to section 13 of the judiciary act of 1789, which authorized all federal courts to issue such writs "in cases warranted by the principles and usages of law." Yet Marbury was not an ambassador or state government entitled to have the Supreme Court hear the case under its original jurisdiction. As a consequence, Marshall opined that section 13 impermissibly attempted to enlarge the Supreme Court's original jurisdiction to include disputes such as those presented by Marbury v. Madison, in contravention of the constitutional limitations placed on that jurisdiction by Article III.

However, Marshall suggested that merely because a piece of legislation violates a constitutional principle does not necessarily mean that the legislation is unenforceable. "[W]hether an act repugnant to the constitution can become law of the land," Marshall noted, "is a question deeply interesting to the United States." Observing that the Constitution expressly delegates and limits the powers of Congress, Marshall asked, "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?"

Marshall argued that the "distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation." Marshall continued:

It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act…. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it… . If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

For Marshall, the idea that an unconstitutional act of legislature could "bind the courts and oblige them to give it effect" was "an absurdity too gross to be insisted on." Thus, Marshall concluded that congressional legislation contrary to the federal Constitution is null and void and cannot be enforced by a court of law.

Having ruled that the Judiciary Act of 1789 was invalid and unenforceable, Marshall next asked whether the judiciary was the appropriate branch to be vested with authority to overturn unconstitutional legislation. Although it is commonly accepted today that the power to nullify state and federal statutes falls within the purview of the judicial branch of government, the Constitution does not specifically delegate this power to any one branch. Under the explicit provisions of the Constitution, then, the executive and legislative branches might have argued in 1803 that they were no less entitled than the judicial branch to be entrusted with the power of judicial review.

The Court rejected this idea:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Marshall was arguing that it was the historical role of courts to settle legal disputes by interpreting and applying the law. In some instances, the applicable statutory or common law has conflicted with other laws, Marshall said, and it has been the obligation of courts to resolve "the operation of each."

Earlier in his opinion, the chief justice had described the federal Constitution as a special kind of law that was "paramount" to all other laws in the United States. It then followed, the chief justice reasoned, that courts carried the responsibility to interpret and apply the Constitution's provisions. This responsibility inevitably entailed review of cases where laws passed by the legislative and executive branches conflicted with the strictures of the Constitution. By resolving such conflicts, Marshall maintained, courts were doing nothing more than fulfilling their traditional role of settling legal disputes.

Marshall also questioned whether members of the legislative and executive branches could objectively evaluate the constitutionality of legislation they passed. It is sometimes said that a diner, not the cook, is the best judge of a meal. Following the same reasoning, Marshall hinted that the legislative and executive branches could not impartially review legislation that they had helped prepare or enact. It is far from clear, for example, whether the Federalists in Congress who supported the Judiciary Act of 1789 could have put aside their partisan views long enough to exercise the power of judicial review over the Marbury dispute in a fair and neutral manner.

Chief Justice Marshall's opinion in Marbury has been the object of much criticism. Constitutional historians claim that Marbury represents a paradigm of judicial activism, which is marked by judges who decide cases based on issues not argued before them. This criticism seems to be particularly apt when applied to Marbury because, as constitutional scholar Leonard W. Levy has pointed out, "[In] no other case in our constitutional history has the Court held unconstitutional an act of Congress whose constitutionality was not at issue." Neither Marbury nor Madison had attacked the constitutionality of the Judiciary Act.

Against this criticism, historians have weighed the dilemma confronting Chief Justice Marshall. As a Federalist appointed to the Supreme Court, Marshall attempted to facilitate the growth of the national government through his judicial opinions. To achieve this end, Marshall aspired to establish the Constitution as the supreme law of the land, under which the executive, legislative, and judicial branches of both state and federal governments would be subordinate. He also hoped to establish the Supreme Court as the ultimate arbiter of the Constitution, providing the final word on the meaning and application of any constitutional principles.

Marshall realized that none of these aspirations would be realized unless the Supreme Court gained respect and acceptance from Congress and the president. After all, the Supreme Court depended on the executive branch to enforce its decisions. President andrew jackson once underscored this point when he exclaimed, "John Marshall has made his decision [in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832)], now let him enforce it!" (as quoted in Coleman v. United States Bureau of Indian Affairs, 715 F.2d 1156 [7th Cir. 1983]).

Marshall also needed to curry the favor of Congress, which possessed the power to limit the appellate jurisdiction of the Supreme Court under Article III, Section 2, of the Constitution. In addition, Congress possessed the power to impeach the Supreme Court justices, a power that it unsuccessfully exercised in 1805 when the Senate acquitted Federalist justice samuel chase of wrongdoing.

Marbury was the powder keg threatening to upset the delicate relationships between the coordinate branches of the federal government. Marshall understood that if the Court ordered Madison to deliver the commission to Marbury, the Jefferson administration might ignore the order and tarnish the Court's reputation by exposing it as an impotent institution. On the other hand, if the Court ruled in favor of Madison, Marbury and the Federalists who had appointed and confirmed him would suffer a humiliating defeat. In either instance, the executive branch would be perceived as preeminent.

The chief justice's solution to this dilemma was what one constitutional scholar has called a "masterwork of indirection, a brilliant example of Marshall's capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking in another" (McCloskey 1960, 40). Marshall's opinion in Marbury denied a Lilliputian power to the Supreme Court with one hand, while grabbing a titanic power for the judicial branch with the other.

By rejecting Marbury's claim on the ground that the Supreme Court did not have original jurisdiction to issue the writ of mandamus under the Constitution, Marshall established the power of judicial review in the nation's highest court. While appeasing the Jeffersonian Republicans with a victory over President Adams in the battle over the president's midnight appointments, Marshall introduced the idea that the federal Constitution is the fundamental law underlying both the state and federal governments. In striking down a section of the Federalist-supported Judiciary Act, Marshall identified the Supreme Court as the authoritative interpreter of the Constitution.

Each of these accomplishments set the stage for a gradual accretion of power, respect, and prestige in the federal judiciary. As the power of the federal judiciary increased, so did the power of the entire federal government, something that proved important in President Abraham Lincoln's efforts to preserve the Union during the Civil War.

further readings

Curtis, Michael Kent. 2003. "Judicial Review and Populism." Wake Forest Law Review 38 (summer): 313–74.

Levy, Leonard W. 1988. Original Intent and the Framers' Constitution. New York: Macmillan.

McCloskey, Robert G. 1960. The American Supreme Court. Chicago: University of Chicago Press.

Nelson, William E. 2000. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence: Univ. Press of Kansas.

Prakash, Saikrishna B., and John C. Yoo. 2003. "The Origins of Judicial Review." University of Chicago Law Review 70 (summer): 887–982.

Randolph, Ryan. 2004. Marbury v. Madison: The New Supreme Court Gets More Power. New York: Rosen Pub. Group.

Stites, Frances. N. 1997. John Marshall: Defender of the Constitution. Reading, Mass.: Addison-Wesley.

Wellington, Harry H. 1991. Interpreting the Constitution: The Supreme Court and the Process of Adjudication. New Haven, Conn.: Yale.

Wills, Mary, ed. 1982. The Federalist Papers, by Alexander Hamilton, James Madison and John Jay. No. 78. New York: Bantam Books.

Wolfe, Christopher. 1990. Judicial Activism: Bulwark of Freedom or Precarious Security. San Diego, Calif.: Harcourt.

cross-references

Congress of the United States; Constitution of the United States; Judicial Review; "Marbury v. Madison" (Appendix, Primary Document); Separation of Powers; Supreme Court of the United States.

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

Marbury v. Madison: 1803

Plaintiffs: William Marbury, William Harper, Robert R. Hooe, and Dennis Ramsay
Defendant: Secretary of State James Madison
Plaintiff Claim: That Madison had illegally refused to deliver judicial commissions to their rightful recipients
Chief Defense Lawyer: U.S. Attorney General Levi Lincoln
Chief Lawyer for Plaintiffs: Charles Lee
Justices: Samuel Chase, William Cushing, John Marshall, Alfred Moore, William Paterson, and Bushrod Washington
Place: Washington, D.C.
Dates of Trial: February 10-11, 1803
Verdict: Plaintiffs could not force Madison to deliver the commissions, because the Judiciary Act of 1789 was nconstitutional.

SIGNIFICANCE: Marbury v. Madison may be the most important case in American history, because it established the principle of judicial review.

In the late 18th century and early 19th century, the two parties dominating the American political scene were the Federalists and the Democratic-Republicans. In the presidential election of 1800, the Electoral College had a tie vote, and it fell to the House of Representatives to decide the outcome. After a bitter battle and 36 ballots, the House voted February 17, 1801 for Democratic-Republican candidate Thomas Jefferson.

The outgoing president, Federalist John Adams, had as his secretary of state the distinguished lawyer John Marshall. In January 1801, Adams secured Marshall's nomination as chief justice of the United States. Marshall was sworn in February 4 but continued to serve as Adams' secretary of state until March 3, when Adams' term ended. Meanwhile, Adams and the Federalists in Congress had been moving to pack the federal judiciary with as many new Federalist judges as possible before the Jefferson administration took power.

As part of the Federalists' efforts to preserve their control over the judiciary, on February 27, 1801, Congress gave Adams the power to appoint justices of the peace for the District of Columbia. On March 2, one day before the end of his term, Adams appointed 42 justices of the peace, and Congress approved their appointments the next day. As secretary of state, Marshall signed and sealed the necessary judicial commissions, but the commissions were not delivered by the end of March 3. Thomas Jefferson's term began March 4, and he ordered his new secretary of state, James Madison, not to deliver the commissions. Jefferson decided to view the commissions as invalid unless delivered.

Marbury Goes to Court

Having demonstrated his power, Jefferson ultimately allowed most of the Adams appointees to take their offices. One of the appointees that Jefferson did not allow to take office, William Marbury, filed a petition with the Supreme Court December 16, 1801 requesting that the Supreme Court order Madison to deliver Marbury's commission. Marbury was joined by three other disappointed appointees, William Harper, Robert R. Hooe, and Dennis Ramsay. Of course, by now Marshall had been the chief justice for over nine months. Under the Judiciary Act of 1789, the Supreme Court had the power to issue the order Marbury requested, called a "writ of mandamus."

On December 18, 1801, Marshall ordered a hearing on Marbury's petition, to take place at the Court's next session, the February Term of 1803. The hearing began February 10, 1803. Charles Lee, a Federalist and former attorney general, represented Marbury and the others. Jefferson's attorney general, Levi Lincoln was present in court as a witness, but not as Madison's lawyer.

Lee argued that Madison, as secretary of state, was not only an official of the executive branch, bound to obey the president, but a public servant obligated to perform his duty and deliver Marbury's lawful commission. Therefore, the Court must exercise its authority under the Judiciary Act to issue a writ of mandamus against Madison. Attorney General Lincoln said practically nothing, except that the issue of the commissions was purely political and thus not subject to the judiciary.

Marshall Proclaims the Doctrine of Judicial Review

On February 24, 1803, Chief Justice Marshall issued the Court's opinion. He proceeded in three steps.

First, he reviewed the facts of the case. He stated that Marbury had the right to receive his commission:

To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested right.

Second, Marshall analyzed Marbury's legal remedies. He concluded that the Judiciary Act clearly entitled Marbury to the writ of mandamus he requested.

Marshall's third and final question, therefore, was whether the writ of mandamus could be issued by the Supreme Court. Although the Judiciary Act would allow the Court to issue the writ, Marshall was concerned about the Court's authority under Article III, Section 2, Paragraph 2 of the U.S. Constitution, which states:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a Party, the Supreme Court shall have original jurisdiction. In all other cases … Supreme Court shall have appellate jurisdiction.…

If the Court didn't have original jurisdiction—the responsibility for hearing the evidence and making an initial decision—then under the Constitution, Marbury couldn't go directly to it to get his requested writ of mandamus. He would have to go to a federal District Court, and only if he lost there could he then appeal to the Supreme Court under its appellate jurisdiction. As Marshall stated:

To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction.…

Marshall now addressed the critical question: Would the court use the authority that the Judiciary Act granted it, but that the Constitution denied it, to issue Marbury's writ of mandamus?

Marshall said no, it would not. No act of Congress, including the Judiciary Act, could do something forbidden by the Constitution:

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

Therefore, because the Judiciary Act violated the Constitution, it was unenforceable. Marbury and the others could not get their writ of mandamus from the Court because their petition had been sent to the Court directly, not on appeal. In declaring the Judiciary Act unconstitutional, Marshall set forth for the first time the doctrine of judicial review. Judicial review means that the federal courts, above all the Supreme Court, have the power to declare laws unenforceable if they violate the Constitution:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret the rule. If two laws conflict with each other, the courts must decide on the operation of each.

Marshall's decision meant that the Court would not give his fellow Federalist Marbury the writ of mandamus. Nevertheless, it was a brilliant move. In refusing to confront Jefferson, Marshall had asserted a new and potent power for the judiciary, namely the doctrine of judicial review. Despite various issues, such as whether Marshall should have removed himself from the case because of his role as Adams' secretary of state, Marbuty v. Madison permanently established the principle of judicial review. This power to overturn unconstitutional laws is the basis for the courts' power today to prevent such evils as civil rights violations.

—Stephen C. Christianson

Suggestions for Further Reading

Baker, Leonard. John Marshall: A Life in Law. New York: Macmillan Co., 1974.

Berger, Raoul. Congress v. the Supreme Court. Cambridge: Harvard University Press, 1969.

Beveridge, Albert J. The Life of John Marshall. Marietta, Ga.: Cherokee Publishing, 1990.

Bickel, Alexander M. The Least Dangerous Branch: the Supreme Court at the Bar of Politics. New Haven: Yale University Press, 1986.

Cusack, Michael. "America's Greatest Justice?" Scholastic Update (January 1990): 11.

Ellis, Richard E. The Jeffersonian Crisis: Courts and Politics in the Young Republic. New York: Oxford University Press, 1971.

Levy, Leonard Williams. Judicial Review, and the Supreme Court. New York: Harper & Row, 1967.

McHugh, Clare. "The Story of the Constitution: Conflict and Promise." Scholastic Update (September 1987): 8-11.

Warren, Charles. The Supreme Court in United States History. Littleton, Colo.: F.B. Rothman, 1987.

MARBURY V. MADISON

MARBURY V. MADISON, 1 Cranch (5 U.S.) 137 (1803), the case that established the constitutional doctrine of judicial review in the United States, according to which the federal courts would declare void statutes that conflict with the Constitution.

The concept of judicial review had long existed in the common law. The judicial power to declare void statutes that were contrary to right and reason had been asserted by the English Chief Justice Edward Coke in Dr. Bonham's Case (1610). This doctrine was well known in the American colonies and had been employed in both state and lower federal courts in actions dealing with state statutes. Still, the text of the U.S. Constitution, Article III, which declares the right of the federal courts to hear all cases "arising under this constitution," does not clearly confer this authority.

The dispute leading to Marbury v. Madison arose when William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper were not given their commissions as federal justices of the peace, appointments made by John Adams in the waning days of the Federalist Congress (see Midnight Judges). They sued in the original jurisdiction of the U.S. Supreme Court, seeking a writ of mandamus against James Madison, the new secretary of State, asking the Court to order Madison to deliver their commissions.

In the heated atmosphere of Thomas Jefferson's new presidency, the Court was faced with granting an order that could be ignored or could cause a constitutional crisis between the Anti-Federalist Congress and the Federalist Supreme Court. Not to grant it, however, would be a capitulation.

The responsibility for dealing with this quagmire fell to the new Chief Justice, John Marshall, himself a last-minute Adams appointee. Indeed it was Marshall who, as the former Secretary of State, had left the disputed commissions with his clerk for delivery just before Madison assumed office.

Marshall's opinion framed three questions: Did the plaintiffs have a right to the commission? If so, and if that right had been violated, did the laws afford them a remedy? If they did, was it a mandamus issuing from the Supreme Court?

Marshall found that the commissions having been sealed, the plaintiffs had a right to delivery, and, under the ancient common-law principle that a right denied must have a remedy, the plaintiffs should have a writ of mandamus to deliver the commission. This was allowed under the Judiciary Act of 1789, which authorized the Supreme Court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."

Marshall compared this statutory authority to Article III of the U.S. Constitution: "in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all other cases …the Supreme Court shall have appellate jurisdiction." A case in the Court's original jurisdiction that neither affects the representatives of a foreign state nor has a state of the union as a party is outside the powers conferred on the Court in the Constitution, and the act giving such jurisdiction exceeded Constitutional limits.

Marshall held that the judicial oath of office to defend the Constitution requires that a judge refuse to act according to a law that violates it. He concluded that "a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument." Thus, he refused to enforce that part of the Judiciary Act, much of the rest of which remains in force.

The case initially provoked outrage from Jefferson and his party, not for the claim to judicial review but for the presumptions that the plaintiffs had been harmed and that the Court might have granted the mandamus. The doctrine of judicial review, expanded to include acts of states and of the federal executive, grew considerably through the twentieth century.

BIBLIOGRAPHY

Nelson, William E. "Marbury v. Madison": The Origins and Legacy of Judicial Review. Lawrence: University Press of Kentucky, 2000.

Newmyer, R. Kent. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State University Press, 2001.

SteveSheppard

See alsoJudicial Review ; Judiciary Act of 1789 .

Marbury v. Madison (1803).In this decision, the U.S. Supreme Court, speaking through Chief Justice John Marshall, for the first time declared an act of Congress unconstitutional and thus established the precedent for judicial review of legislative acts. The case arose from the appointment of the so‐called “midnight judges”—judicial appointments made by President John Adams during the last days of his administration. Adams appointed William Marbury a justice of the peace in the District of Columbia, and his commission was signed by the outgoing secretary of state, John Marshall, but not delivered. When Thomas Jefferson's Republican administration took power, the new secretary of state, James Madison, refused to deliver the commission. Marbury filed suit against Madison in the Supreme Court under section 13 of the Judiciary Act of 1789, which had established the particulars of the new federal court system. That section, Marbury contended, gave the Supreme Court the right to hear the case and issue a writ of mandamus directing the secretary of state to deliver his commission.

Marshall well knew that an order to Madison to deliver the commission might be ignored, irreparably damaging the authority of the Supreme Court and effectively neutralizing the Federalist party's strength in the federal judiciary. Marshall began his opinion by stating unequivocally that Marbury deserved the commission and that the Republican administration was wrong in not delivering it. That said, however, Marshall held that the Supreme Court did not have the power to aid Marbury because section 13 of the Judiciary Act had improperly enlarged the Supreme Court's original jurisdiction (the right to hear a case in the first instance). That jurisdiction had been established by the Constitution itself, Marshall stated, and a federal law in contravention of the Constitution was void.

The notion that courts could strike down acts of a legislature did not originate with Marshall. In both seventeenth‐century England and late eighteenth‐century America, courts had suggested that legislation that violated “natural law” or the fundamental principles of government might be void. Alexander Hamilton, defending the proposed Constitution in Federalist Paper No. 78, had sketched out the logic of judicial review that Marshall would follow in Marbury v. Madison. Marshall, however, established this specific judicial power in the American constitutional system, and while no other federal law was declared unconstitutional until 1857, the Marshall court subsequently reaffirmed in a number of cases its power to consider the constitutionality of federal laws. Marshall's opinion also first articulated the distinction between political questions (in this case, the powers of a coordinate branch of the government), which the court would not resolve, and judicial ones, which were properly its responsibility.
See also Early Republic, Era of the; Federal Government, Judicial Branch; Jurisprudence.

Bibliography

Robert L. Clinton , Marbury v. Madison and Judicial Review, 1968.
Charles F. Hobson , The Great Chief Justice: John Marshall and the Rule of Law, 1996.

Paul G.E. Clemens

Marbury v. Madison case decided in 1803 by the U.S. Supreme Court. William Marbury had been commissioned justice of the peace in the District of Columbia by President John Adams in the "midnight appointments" at the very end of his administration. When the new administration did not deliver the commission, Marbury sued James Madison, Jefferson's Secretary of State. (At that time the Secretary of State was charged with certain domestic duties as well as with conducting foreign affairs.) Chief Justice John Marshall held that, although Marbury was entitled to the commission, the statute that was the basis of the particular remedy sought was unconstitutional because it gave the Supreme Court authority that was implicitly denied it by Article 3 of the U.S. Constitution. The decision was the first by the Supreme Court to declare unconstitutional and void an act passed by Congress that the Court considered in violation of the Constitution. The decision established the doctrine of judicial review, which recognizes the authority of courts to declare statutes unconstitutional.

Bibliography: See R. L. Clinton, Marbury v. Madison and Judicial Review (1989).