Marbury v. Madison

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(1803) First decision of the Supreme Court of the United States to declare an act of Congress unconstitutional, thus establishing the doctrine of judicial review. In 1801 newly elected Pres. Thomas Jefferson ordered Secretary of State James Madison to withhold from William Marbury the commission of his appointment by former Pres. John Adams as justice of the peace in the District of Columbia. Marbury then requested that the Supreme Court compel Madison to deliver his commission. In denying his request, the court held that it lacked jurisdiction because the section of the Judiciary Act passed by Congress in 1789 that authorized the Court to issue such a writ was unconstitutional and thus invalid. Chief Justice John Marshall, writing for the Court, declared that the Constitution must always take precedence in any conflict between it and a law passed by Congress.

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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 In the interval, the Federalist‐sponsored Judiciary Act of 1801 was repealed and circuit judges appointed under its provisions were dismissed.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 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

• 1 Cranch 137 (1803)
• Vote: 5–0
• For the Court: Marshall

In the Presidential election of 1800, Thomas Jefferson, the candidate of the Democratic-Republican party, defeated the Federalist candidate, John Adams. Not only had Adams lost the Presidency but the Federalists had lost control of Congress. Adams and his party feared that Jefferson would ruin the country by undoing everything the Federalists had accomplished in the previous 12 years. Between the November election and the March inauguration, the Federalists tried to ensure that they would continue to play a role in the U.S. government.

On January 20, 1801, Adams appointed Secretary of State John Marshall to be chief justice of the United States. Although the Senate confirmed this nomination in less than two weeks, Marshall remained secretary of state until Jefferson took office.

Throughout February the Federalists, who controlled Congress, created offices for Adams to fill with loyal supporters. During his last month as President, Adams nominated more than 200 men to new offices. These nominations included 42 justices of the peace for the new national capital at Washington, D.C. Adams appointed William Marbury as one of these justices of the peace.

The Senate received the nominations of the new justices of the peace on March 2 and confirmed them on March 3, Adams's last day in office. In order for the confirmed appointees to assume office, the executive had to complete one more procedure: the President had to sign commissions empowering each man to hold office, and the secretary of state had to place the official seal of the U.S. government on those commissions and supervise their delivery. In those days, officials prepared the commissions by hand. Thus, Adams spent his last evening as President signing commissions. The secretary of state, John Marshall, worked well into the night, affixing the Great Seal of the United States to the commissions and sending them off for delivery. However, in the chaos of Adams's last day in office, a number of commissions, including William Marbury's, though signed and sealed, remained undelivered.

On March 4, 1801, Jefferson became President. Soon after, Marbury asked the new secretary of state, James Madison, for his commission. Madison, after consulting with Jefferson, refused to give Marbury the commission. Marbury then appealed to the Supreme Court for help.

Marbury asked the Court to issue a writ of mandamus directed to Secretary of State James Madison. A writ of mandamus orders a public official to carry out his duties. Marbury argued that he was legally entitled to his commission and that Madison should give it to him. Madison ignored these legal proceedings. Neither he nor Jefferson believed that the Supreme Court could give orders to the other two branches of government. Thus, the Court had to rule on Marbury's case with the knowledge that Madison might ignore the ruling. The man responsible for making the ruling was John Marshall, who as secretary of state had failed to send Marbury his commission in the first place.

The Issue

Marbury argued that Section 13 of the Judiciary Act of 1789 gave the Supreme Court authority to issue a writ of mandamus under its original jurisdiction, its power to hear and decide such a case for the first time. The writ would require Secretary of State Madison to deliver Marbury's commission. Marbury pointed out that an act of Congress had created the office and the Senate had confirmed his Presidential appointment. With the commission legally signed and sealed, delivery of the commission was not, in Marbury's view, a discretionary act on the part of the secretary of state. Madison did not, Marbury claimed, have the authority to choose whether to deliver the commission. Rather, his job required him to deliver it.

Did Marbury have a right to the commission, and did the law provide him a means to obtain it? These were the apparent issues of the case. Chief Justice Marshall, however, asserted another issue: Could the Supreme Court, under the U.S. Constitution, have original jurisdiction in this case? Or, to put it another way, did Section 13 of the Judiciary Act of 1789 contradict or violate the U.S. Constitution?

Opinion of the Court

The Court ruled that Marbury was due his commission. Chief Justice John Marshall said, “To withhold his commission is an act” that violates the law.

Marshall held that the writ of mandamus was the proper legal procedure to require a public official to do his duty. Marshall also acknowledged that the Judiciary Act of 1789 authorized the Supreme Court to issue such a writ.

Marshall knew, however, that if he ruled in favor of Marbury, Madison would probably ignore the Court's order to deliver the commission and cause a constitutional crisis. Above all else, Marshall hoped to avoid such a controversy. So one more question remained for Marshall to answer. Could the Supreme Court actually issue the writ of mandamus? If it could, then Marshall had backed himself into a corner. Having admitted that Marbury deserved the writ, he would then have to issue one. But Marshall had an out.

Marbury had directed his request for a writ of mandamus to the Supreme Court. By asking the Supreme Court to issue the writ, Marbury had asked the Court to take original jurisdiction in the case, to be the first court to consider the request. In complying with such a request, the Supreme Court would act as a trial court. However, the founders of the Supreme Court had designed the Supreme Court as an appellate court—a court to hear appeals from other federal courts and from the state courts. The Constitution, in Article 3, Section 2, Clause 2, spelled out the few types of cases over which the Supreme Court would exercise original jurisdiction. Marshall examined that clause of the Constitution and concluded it did not authorize the Supreme Court to issue a writ of mandamus. Such a writ, he decided, could come only from a lower court.

Thus, Marshall concluded that Section 13 of the Judiciary Act of 1789, which authorized the Court to issue a writ of mandamus, violated the Constitution. Because the Supreme Court could not enforce an unconstitutional law, Marbury did not get his writ.

Marshall's opinion avoided generating a confrontation with Madison and Jefferson. He did not order Madison to give Marbury his commission. Marshall also succeeded in lecturing Madison and Jefferson on their respective responsibilities as secretary of state and President. In addition, by his opinion Marshall successfully asserted the Supreme Court's power to declare acts of Congress unconstitutional. This power is known as judicial review.

Marshall used three provisions of the Constitution to justify his arguments for judicial review. The first was Article 3, Section 2, which extends the judicial power to “all Cases, in Law and Equity, arising under this Constitution.” Marshall argued: “Could it be the intention of those who gave this power, to say, that in using it, the constitution should not be looked into? That a case arising under the constitution should be decided, without examining the instrument under which it arises? This is too extravagant to be maintained.”

Second, Article 6 requires judges to pledge “to support this Constitution.” Marshall wrote, “How immoral to impose [this oath] on them, if they were to be used as the instruments… for violating what they swear to support!”

Third, Marshall pointed out that “in declaring what shall be the supreme law of the land [Article 6], the constitution itself is first mentioned; and not the laws of the United States, generally, but those only which shall be made in pursuance of the constitution, have that rank.” Marshall argued from the supremacy clause of Article 6 that no act of Congress that violates any part of the Constitution, the highest law, can be valid. Rather, it must be declared unconstitutional and repealed.

Marshall memorably defined the Supreme Court's duty under the U.S. Constitution:

It is, emphatically, the province and duty of the judicial department, to say what the law is…. 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, conformable to the law, disregarding the constitution; or conformable 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. If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which both apply.

Significance

The Marbury decision provided the constitutional basis for the Supreme Court's power of judicial review of the actions and laws of the federal government. This decision asserted the Court's power to declare invalid those federal laws it finds in conflict with the Constitution. The Court's decision laid the foundation on which the Supreme Court eventually developed into an important branch of the federal government.

Full acceptance of judicial review would not happen until after the Civil War. Regardless, this case established the principle that the courts and government should not enforce unconstitutional federal laws.

See also Judicial power; Judicial review; Judiciary Act of 1789

Sources

• Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Lawrence: University Press of Kansas, 1989).
• John A. Garraty, “The Case of the Missing Commissions”, in Quarrels That Have Shaped the Constitution, edited by John A. Garraty (New York: Harper & Row, 1987)

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.

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 forty-two 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" 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 fifty 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 and 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]he- ther 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 justiceSamuel 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.

See: Congress of the United States; Constitution of the United States; Separation of Powers; Supreme Court of the United States.

by John Marshall, 1803

In 1801, shortly before he was to retire from office, President John Adams used an opportunity given him by the Congress to fill a number of newly created federal judgeships with Federalists. The incoming Republican President, Thomas Jefferson, thus found himself confronted with judges unfriendly to both his party and his program, especially in the Supreme Court itself, to which Adams had appointed as Chief Justice his former secretary of state, John Marshall. Marshall like Jefferson was a Virginian, and even a distant relative of the President, but the two men were bitter political antagonists. Adams had also appointed to a district judgeship a certain William Marbury, whose only claim to fame was that he figured prominently in one of Marshall's earliest decisions. For Marshall himself, in the confusion of the change of administration, had neglected to deliver Marbury's commission to him, and Marshall's successor as secretary of state, James Madison, was instructed by Jefferson to withhold it. Marbury therefore began proceedings in the Supreme Court to secure an order of mandamus requiring the commission to be handed over. In his decision, handed down in February 1803, Marshall declared that the President had no moral right to keep back the commission. But Marshall also asserted that the section of the Judiciary Act of 1789 under which Marbury had brought suit was unconstitutional, and that the Court was therefore powerless to help him. By thus apparently limiting his own authority, Marshall actually extended it, since no Act of Congress had ever been declared unconstitutional before. He thereby delivered both a rebuke and a stern warning to the Jeffersonians, whose entire program was put on notice as being subject to judicial review-and by none other, in the last resort, than its most powerful enemy. Portions of Marshall's decision are reprinted here.

It is ... decidedly the opinion of the Court that when a commission has been signed by the President, the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the secretary of state.

Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable; and the commission may be arrested if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable and cannot be annulled. It has conferred legal rights which cannot be resumed.

The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.

Mr. Marbury, then, since his commission was signed by the President and sealed by the secretary of state, was appointed; and as the law creating the office gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country.

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

The power of nominating to the Senate and the power of appointing the person nominated are political powers to be exercised by the President according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and, consequently, if the officer is by law not removable at the will of the President, the rights he has acquired are protected by the law and are not resumable by the President. They cannot be extinguished by executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source. ...

It is, then, the opinion of the Court:

First, that by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace for the County of Washington, in the District of Columbia, and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years.

Second, that, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right for which the laws of his country afford him a remedy. ...

This, then, is a plain case for a mandamus, either to deliver the commission or a copy of it from the record; and it only remains to be inquired whether it can issue from this Court.

The act to establish the judicial courts of the United States authorizes 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."

The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign.

The Constitution vests the whole judicial power of the United States in one Supreme Court and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States and, consequently, in some form, may be exercised over the present case because the right claimed is given by a law of the United States.

In the distribution of this power it is declared that "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction."

It has been insisted, at the bar, that as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the legislature to assign original jurisdiction to that Court, in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States.

If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage - is entirely without meaning - if such is to be the construction. If Congress remains at liberty to give this Court appellate jurisdiction, where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution is form without substance.

Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them, or they have no operation at all.

It cannot be presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissable, unless the words require it.

If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them, yet the cause would have proceeded no further than to provide for such cases, if no further restriction on the powers of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction, unless the words be deemed exclusive of original jurisdiction.

When an instrument organizing, fundamentally, a judicial system divides it into one Supreme and so many inferior courts as the legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction and that in others it shall take appellate jurisdiction, the plain import of the words seems to be that in one class of cases its jurisdiction is original and not appellate; in the other, it is appellate and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction and for adhering to their obvious meaning.

To enable this Court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction or to be necessary to enable them to exercise appellate jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that, if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper and, therefore, seems not to belong to appellate but to original jurisdiction. Neither is it necessary in such a case as this to enable the court to exercise its appellate jurisdiction.

The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed is supreme and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. 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? 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. 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.

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.

This theory is essentially attached to a written constitution and is, consequently, to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

If an act of the legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

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. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained. In some cases, then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the Constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution and only see the law?

The Constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed and a person should be prosecuted under it, must the court condemn to death those victims whom the Constitution endeavors to preserve?

"No person," says the Constitution, "shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule and declare one witness or a confession out of court sufficient for conviction, must the constitutional principle yield to the legislative act?

From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts as well as of the legislature.

Why, otherwise, does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature is completely demonstrative of the legislative opinion on this subject. It is in these words:

I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as ---, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.

Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? If it is closed upon him and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution have that rank.

Thus, 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.

The rule must be discharged.

A case decided by the Supreme Court under Chief Justice John Marshall in 1803. The Court declared unanimously that a certain law passed by Congress should not be enforced, because the law was opposed to the Constitution. Marbury versus Madison established the principle of “judicial review” — that the Supreme Court has the power to declare acts of Congress unconstitutional.

Marbury v. Madison
Supreme Court of the United States
Argued February 11, 1803 Decided February 24, 1803
Full case name	William Marbury v. James Madison, Secretary of State of the United States
Citations	5 U.S. 137 (more) 1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352
Prior history	Original action filed in U.S. Supreme Court; order to show cause why writ of mandamus should not issue, December 1801
Subsequent history	None
Holding
Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. Congress cannot pass laws that are contrary to the Constitution, and it is the role of the Federal courts to interpret what the Constitution permits.
Court membership
Chief Justice John Marshall Associate Justices William Cushing · William Paterson Samuel Chase · Bushrod Washington Alfred Moore
Case opinions
Majority	Marshall, joined by Paterson, Chase, Washington
Cushing and Moore took no part in the consideration or decision of the case.
Laws applied
U.S. Const. arts. I, III; Judiciary Act of 1789 § 13

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution.

This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of State James Madison to deliver the documents, but the court, with John Marshall as Chief Justice, denied Marbury's petition, holding that the part of the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional.

Marbury v. Madison was the first time the Supreme Court declared something "unconstitutional," and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the "checks and balances" of the American form of government.

Contents 1 Background of the case 1.1 Status of the judicial power before Marbury 2 Relevant law 3 The issue 4 The decision 5 Criticism 6 See also 7 Notes and references 8 Further reading 9 External links

Background of the case

William Marbury

In the presidential election of 1800, Thomas Jefferson defeated John Adams, becoming the third President of the United States. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, outgoing president Adams and the Federalist-controlled 6th Congress were still in power. During this lame-duck session, Congress passed the Judiciary Act of 1801. This Act modified the Judiciary Act of 1789 in establishing ten new district courts, expanding the number of circuit courts from three to six, and adding additional judges to each circuit, giving the President the authority to appoint Federal judges and justices of the peace. The act also reduced the number of Supreme Court justices from six to five, effective upon the next vacancy in the Court.^[1][2]

On March 3, just before his term was to end, Adams, in an attempt to stymie the incoming Democratic-Republican Congress and administration, appointed 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801. These appointees, the infamous "Midnight Judges", were all located in the Washington and Alexandria area.^{[citation needed]} One of them was William Marbury, a native of Maryland and a prosperous financier. An ardent Federalist, Marbury was active in Maryland politics and a vigorous supporter of the Adams presidency.^{[citation needed]} He had been appointed to the position of justice of the peace in the District of Columbia. The term for a justice of the peace was five years, and they were "authorized to hold courts and cognizance of personal demands of the value of 20 dollars".^[3]

On the following day, the appointments were approved en masse by the Senate; however, to go into effect, the commissions had to be delivered to those appointed. This task fell to John Marshall, who, even though recently appointed Chief Justice of the United States, continued as the acting Secretary of State at President Adams's personal request.^{[citation needed]}

While a majority of the commissions were delivered, it proved impossible for all of them to be delivered before Adams's term as president expired. As these appointments were routine in nature, Marshall assumed the new Secretary of State James Madison would see they were delivered, since "they had been properly submitted and approved, and were, therefore, legally valid appointments."^[4] On March 4, 1801, Thomas Jefferson was sworn in as President. As soon as he was able, President Jefferson ordered Levi Lincoln, who was the new administration's Attorney General and acting Secretary of State until the arrival of James Madison, not to deliver the remaining appointments. Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. In Jefferson's opinion, the undelivered commissions, not having been delivered on time, were void.^[5]

The newly sworn-in Democratic-Republican congress immediately set about voiding the Judiciary Act of 1801 with their own Judiciary Act of 1802 which reversed the act of 1801 so that the Judicial branch once again operated under the dictates of the original Judiciary Act of 1789. In addition, it replaced the Court's two annual sessions with one session to begin on the first Monday in February, and "canceled the Supreme Court term scheduled for June of that year [1802] ... seeking to delay a ruling on the constitutionality of the repeal act until months after the new judicial system was in operation."^[6]

Status of the judicial power before Marbury

Secretary of State James Madison was ordered by Jefferson to withhold the commissions.

Sir Edward Coke

The power of judicial review was created in Marbury though the general idea has ancient roots. The idea that courts could nullify statutes originated in England with Chief Justice Edward Coke's 1610 opinion in Dr. Bonham’s Case, 8 Co. Rep. 107a. That decision arose under a statute of Parliament enabling the London College of Physicians to levy fines against anyone who violated their rules. The College accused a doctor of practicing without a license and fined him accordingly. Coke found that their statutory powers violated "common right or reason" because "no person should be a judge in his own case."^[7]

The U.S. Supreme Court has stated that Bonham's Case did not set a precedent in the United States to make common law supreme over statutory law:

[N]otwithstanding what was attributed to Lord COKE in Bonham's Case, 8 Reporter, 115, 118a, the omnipotence of parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the commons.^[8]

The idea that courts could declare statutes void was defeated in England with the Glorious Revolution of 1688, when King James II was removed and the elected Parliament declared itself supreme. However, it continued to be known in the American colonies and in the bars of young states, where Coke's books were very influential. The doctrine was specifically enshrined in some state constitutions, and by 1803 it had been employed in both State and Federal courts in actions dealing with state statutes, but only insofar as the statutes conflicted with the language of state constitutions.^[9][10]

Some legal scholars argue that the legal basis and concept of judicial review predate the case, and that Marbury merely formalized it. For example, Saikrishna Prakash and John Yoo point out, with respect to the ratification of the Constitution, that "no scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing."^[11]

However, it is important to note that nothing in the text of the Constitution explicitly authorized the power of judicial review, despite persistent fears voiced by Anti-federalists over the power of the new Federal court system.

The concept was also laid out by Alexander Hamilton in Federalist No. 78:

“

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[12]

”

Relevant law

“	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 the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.	”
	— U.S. Constitution, Article III, Section 2, Clause 2

“	The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts [...] and writs of mandamus [...] to any courts appointed, or persons holding office, under the authority of the United States.	”
	— Judiciary Act of 1789, § 13

The issue

Inscription on the wall of the Supreme Court Building from Marbury v. Madison, in which Chief Justice John Marshall outlined the concept of judicial review.

There are three ways a case can be heard in the Supreme Court: (1) filing directly in the Supreme Court; (2) filing in a lower federal court, such as a district court, and appealing all the way up to the Supreme Court; (3) filing in a state court, appealing all the way up through the state's highest courts, and then appealing to the Supreme Court on an issue of federal law. The first is an exercise of the Court's original jurisdiction; the second and third are exercises of the Supreme Court's appellate jurisdiction.

Because Marbury filed his petition for the writ of mandamus directly in the Supreme Court, the Court needed to be able to exercise original jurisdiction over the case in order to have the power to hear it.

Marbury's argument is that in the Judiciary Act of 1789, Congress granted the Supreme Court original jurisdiction over petitions for writs of mandamus. This raises several issues that the Supreme Court had to address:

• Does Article III of the Constitution create a "floor" for original jurisdiction, which Congress can add to, or does it create an exhaustive list that Congress can't modify at all?
• If Article III's original jurisdiction is an exhaustive list, but Congress tries to modify it anyway, who wins that conflict, Congress or the Constitution?
• And, more importantly, who is supposed to decide who wins?

In its answer to this last question, the Supreme Court formalizes the notion of judicial review. In short, the constitutional issue on which Marbury v. Madison was decided was whether Congress could expand the original jurisdiction of the Supreme Court.

The decision

An engraving of Justice Marshall made by Charles-Balthazar-Julien Fevret de Saint-Mémin in 1808.

On February 24, 1803, the Court rendered a unanimous (4-0) decision,^[13] that Marbury had the right to his commission but the court did not have the power to force Madison to deliver the commission. Chief Justice Marshall wrote the opinion of the court. Marshall presented the case as raising three distinct questions:

• Did Marbury have a right to the commission?
• Do the laws of the country give Marbury a legal remedy?
• Is asking the Supreme Court for a writ of mandamus the correct legal remedy?

Marshall quickly answered the first two questions affirmatively. He found that the failure to deliver the commission was "violative of a vested legal right."

In deciding whether Marbury had a remedy, Marshall stated: "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right." One of the key legal principles on which Marbury relies is the notion that for every violation of a vested legal right, there must be a legal remedy. Marshall next described two distinct types of Executive actions: political actions, where the official can exercise discretion, and purely ministerial functions, where the official is legally required to do something. Marshall found that delivering the appointment to Marbury was a purely ministerial function required by law, and therefore the law provided him a remedy.

A federal court has a "special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.'"^[14] If a court does not have the power to hear a case, it will not issue dicta. Consequently, with exceptions not applicable here, a federal court must decide whether it has jurisdiction before discussing the merits of the case.^[15] Chief Justice Marshall, however, did not address jurisdictional issues until addressing the first two questions presented above. Because of the canon of constitutional avoidance (i.e., where a statute can fairly be interpreted so as to avoid a constitutional issue, it should be so interpreted), courts generally deal with the constitutional issues only if necessary. In this case, the jurisdictional issue was a constitutional one.^[16]

In analyzing the third question, Marshall first examined the Judiciary Act of 1789 and determined that the Act purported to give the Supreme Court original jurisdiction over writs of mandamus. Marshall then looked to Article III of the Constitution, which defines the Supreme Court's original and appellate jurisdictions (see Relevant Law above). Marbury had argued that the Constitution was only intended to set a floor for original jurisdiction that Congress could add to. Marshall disagreed and held that Congress does not have the power to modify the Supreme Court's original jurisdiction. Consequently, Marshall found that the Constitution and the Judiciary Act conflict.

This conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looked to the nature of the written Constitution—there would be no point of having a written Constitution if the courts could just ignore it. "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?"^[17] Marshall also argued that the very nature of the judicial function requires courts to make this determination. Since it is a court's duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other, a court must decide which law applies.^[18] Finally, Marshall pointed to the judge's oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution" before the "laws of the United States." Part of the core of this reasoning is found in the following statements from the decision:

“

It is emphatically the province and duty of the Judicial Department [the judicial branch] 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 [e.g., a statute or treaty] 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. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty]. This doctrine would subvert the very foundation of all written constitutions.[19]

”

"In denying his request, the Court held that it lacked jurisdiction because Section 13 of the Judiciary Act passed by Congress in 1789, which authorized the Court to issue such a writ, was unconstitutional and thus invalid."^[20] Marbury never became a Justice of the Peace in the District of Columbia.^[21]

Criticism

At the time Jefferson disagreed with Marshall's reasoning in this case, saying that if this view of judicial power became accepted, it would be "placing us under the despotism of an oligarchy."^[22]

A minority of legal scholars have raised questions about the logic Marshall used in determining the Judiciary Act unconstitutional, and hence the legitimacy of judicial review. They reason that Marshall selectively quoted the Judiciary Act, interpreting it to grant the Supreme Court the power to hear writs of mandamus on original jurisdiction.^[23] These scholars argue that there is little connection between the notion of original jurisdiction and the Supreme Court, and note that the Act seems to affirm the Court's power to exercise only appellate jurisdiction.^[24] Furthermore, it has been argued that the Supreme Court should have been able to issue the writ on original jurisdiction based on the fact that Article III of the Constitution granted it the right to review on original jurisdiction "all cases affecting . . . public ministers and consuls," and that James Madison, Secretary of State at the time and defendant of the suit, should have fallen into that category of a "public minister [or] consul."^[25]

Questions have also frequently been raised about the logic of Marshall's argument for judicial review, for example by Alexander Bickel in his book The Least Dangerous Branch. Bickel argues that Marshall's argument implies an unrealistically mechanical view of jurisprudence, one which suggests that the Court has an absolute duty to strike down every law it finds violative of the Constitution. Under Marshall's conception of the judicial process in Marbury, judges themselves have no independent agency and can never take into account the consequences of their actions when deciding cases—a notion that has been attacked by Richard Posner. More generally, Marshall's argument for the notion of a judicial obligation to strike down laws "repugnant to the constitution" presupposes some sort of underlying meaning to the text of the U.S. Constitution which judges can divine, a notion contested by scholars Paul Brest and Duncan Kennedy, among others, as well as Posner.^{[citation needed]}

Marbury can also be criticized on grounds that it was improper for the Court to consider any issues beyond jurisdiction. After concluding that the Court lacked jurisdiction in the case, the further review regarding the substantive issues presented was arguably improper.^[26] Also, it has been argued that Justice Marshall should have recused himself on the grounds that he was still acting Secretary of State at the time the commissions were to be delivered and it was his brother, James Marshall, who was charged with delivering a number of the commissions.^[27]

Because the Constitution lacks a clear statement authorizing the Federal courts to nullify the acts of coequal branches, critics contend that the argument for judicial review must rely on a significant gloss on the Constitution's terms. Despite such criticisms of Marbury v. Madison, judicial review has been accepted in the American legal community.

See also

• List of United States Supreme Court cases, volume 5
• Hylton v. United States
• Calder v. Bull

Notes and references

1. ^ Federal Judicial History, The Judiciary Act of 1801— Historical Note 2 Stat.89
2. ^ Judiciary Act of 1801
3. ^ Ch.6, Sec. 4, Judiciary Act of 1801
4. ^ Sec. 3d, Marbury v. Madison,AMDOCS: www.vlib.us.
5. ^ Pohlman, H. L. (2005). Constitutional Debate in Action: Governmental Powers. Lanham: Rowman & Littlefield. pp. 21. ISBN 0742535932. 
6. ^ Federal Judicial History, The Judiciary Act of 1802— Historical Note2 Stat. 156
7. ^ Coke's decision in the Bonham case, retrieved 2/12/07.
8. ^ Hurtado v. California, 110 U.S. 516 (1884)
9. ^ (See, e.g., Bayard v. Singleton, 1 NC (Martin) 5 (1787); Whittington v. Polk, 1 H. & J. 236 (Md.Gen. 1802) (Samuel Chase, J.); State v. Parkhurst, 9 N.J.L. 427 (N.J. 1802); Respublica v. Duquet, 2 Yeates 493 (Pa. 1799); Williams Lindsay v. East Bay Street Com’rs, 2 Bay (S.C.L.) 38 S.C.Const.App. 1796)(Thomas Waties, J.).; Ware v. Hylton, 3 Dallas (3 U.S.) 199 (1796); Calder v. Bull, 3 Dallas (3 U.S.) 386 (1798); Cooper v. Telfair, 4 Dallas (4 U.S.) 14 (1800); Vanhorne’s Lessee v. Dorrance, 28 F. Cas. 1012, 2 Dallas (2 U.S.) 304; 1 L. Ed. 391; C. Pa. 1795).)
10. ^ Fletcher, George P.; Sheppard, Steve (2004). American Law in Global Perspective: The Basics. Oxford University Press. pp. 132–134. ISBN 0195167236. 
11. ^ Yoo, John C.; Prakash, Saikrishna (2003). "The Origins of Judicial Review". University of Chicago Law Review 69. doi:10.2139/ssrn.426860. 
12. ^ Full text of Federalist No. 78 from thomas.loc.gov
13. ^ Due to illness, Justices William Cushing and Alfred Moore did not sit for oral argument or participate in the Court's decision.
14. ^ Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934)); accord Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)
15. ^ See Irving v. United States, 162 F.3d 154, 160 (1st Cir. 1998) (en banc), admonishing that the federal courts "have an affirmative obligation to examine jurisdictional concerns on their own initiative" even if the parties have neglected them; Berner v. Delahanty, 129 F.3d 20, 23 (1st Cir. 1997), noting "that a court should first confirm the existence of rudiments such as jurisdiction . . . before tackling the merits of a controverted case").
16. ^ Supreme Court History: The Court and Democracy, Marbury v. Madison, pbs.org, retrieved 2/12/07
17. ^ 5 U.S. (1 Cranch) at 176.
18. ^ Id. at 177.
19. ^ 5 U.S. at 177-78.
20. ^ Marbury v. Madison. In Encyclopaedia Britannica.
21. ^ Henretta, James A.; David Brody, and Lynn Dumenil (2007). America's History: Volume 1: To 1877 (6th ed.). Boston: Bedford/St. Martin's. pp. 218–219. ISBN 9780312452858. 
22. ^ James Taranto, Leonard Leo (2004). Presidential Leadership. Wall Street Journal Books. http://books.google.com/books?id=zxBAnuWpg5kC. Retrieved 2008-10-20. 
23. ^ Reinstein, Robert J. (2004-04-01). "Marbury's Myths: John Marshall, Judicial Review and the Rule of Law". bepress Legal Series. http://law.bepress.com/expresso/eps/230.  Working Paper 230.
24. ^ Full text of the Judiciary Act of 1789
25. ^ Stone, Geoffrey R.; et al. (2005). Constitutional Law (5th ed.). New York: Aspen Publishers. pp. 29–51. ISBN 073555014X. 
26. ^ Chemerinsky, Erwin (2006). Constitutional Law: Principles and Policies (3rd ed.). New York: Aspen Publishers. pp. 41. ISBN 073555787X. 
27. ^ Sullivan, Kathleen M.; Gunther, Gerald (2007). Constitutional Law. New York: Foundation Press. ISBN 9781599412467. 

Further reading

• Smith, Jean Edward (1996). John Marshall: Definer Of A Nation. Owl Books. ISBN 080505510X. 
• Smith, Jean Edward (1989). The Constitution And American Foreign Policy. St. Paul, MN: West Publishing Company. ISBN 0314423176. 
• Nelson, William E. (2000). Marbury v. Madison: The Origins and Legacy of Judicial Review. University Press of Kansas. ISBN 0700610626.  (One introduction to the case)
• Clinton, Robert Lowry (1991). Marbury v. Madison and Judicial Review. University Press of Kansas. ISBN 0700605177.  (Claims that it is a mistake to read the case as claiming a judicial power to tell the President or Congress what they can or cannot do under the Constitution.)
• Irons, Peter (1999). A People's History of the Supreme Court. Penguin Books. pp. 104–107. ISBN 0140292012. 
• Newmyer, R. Kent (2001). John Marshall and the Heroic Age of the Supreme Court. Louisiana State University Press. ISBN 0807132497. 
• Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press. pp. 1–16. ISBN 9780807000366. 
• Sloan, Cliff; McKean, David (2009). The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court. New York, NY: PublicAffairs. ISBN 1586484265. 

External links

Wikisource has original text related to this article: Marbury v. Madison

• Text of Marbury v. Madison, 5 U.S. 137 (1803) is available from:  · Enfacto · LII

• The 200th Anniversary of Marbury v. Madison: The Reasons We Should Still Care About the Decision, and The Lingering Questions It Left Behind
• The Establishment of Judicial Review
• The 200th Anniversary of Marbury v. Madison: The Supreme Court's First Great Case
• Case Brief for Marbury v. Madison at Lawnix.com

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