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Marbury v. Madison

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes they find to violate the Constitution of the United States. Decided in 1803, Marbury is regarded as the single most important decision in American constitutional law.[1][2] The Court's landmark decision established that the U.S. Constitution is actual law, not just a statement of political principles and ideals. It also helped define the boundary between the constitutionally separate executive and judicial branches of the federal government.

Marbury v. Madison
Original jurisdiction
Argued February 11, 1803
Decided February 24, 1803
Full case nameWilliam Marbury v. James Madison, Secretary of State of the United States
Citations5 U.S. 137 (more)
1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352
DecisionOpinion
Case history
PriorOriginal action filed in U.S. Supreme Court; order to show cause why writ of mandamus should not issue, December 1801
Outcome
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 judiciary 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 opinion
MajorityMarshall, 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

The case originated in early 1801 as part of the political rivalry between outgoing President John Adams and incoming President Thomas Jefferson.[3] Adams had lost the U.S. presidential election of 1800 to Jefferson. In March 1801, just two days before his term as president ended, Adams appointed several dozen Federalist Party supporters to new circuit judge and justice of the peace positions in an attempt to frustrate Jefferson and his supporters in the Democratic-Republican Party.[4] The outgoing U.S. Senate quickly confirmed Adams's appointments, but outgoing Secretary of State John Marshall was unable to deliver all of the new judges' commissions before Adams's departure and Jefferson's inauguration.[4] Jefferson believed the undelivered commissions were void and instructed his Secretary of State, James Madison, not to deliver them.[5] One of the undelivered commissions belonged to William Marbury, a Maryland businessman who had been a strong supporter of Adams and the Federalists. In late 1801, after Madison had repeatedly refused to deliver his commission, Marbury filed a lawsuit in the Supreme Court asking the Court to issue a writ of mandamus forcing Madison to deliver his commission.[6]

In an opinion written by Marshall, who by then had been appointed Chief Justice of the United States, the Supreme Court held that Madison's refusal to deliver Marbury's commission was illegal. The Court also held that it was normally proper in such situations for a court to order the government official in question to deliver the commission.[7] In Marbury's case, however, the Court did not order Madison to comply. Examining the law Congress had passed to define Supreme Court jurisdiction over types of cases like Marbury's—Section 13 of the Judiciary Act of 1789—the Court found that the Act had expanded the definition of the Supreme Court's jurisdiction beyond what was originally set forth in the U.S. Constitution.[8] The Court then struck down Section 13 of the Act, announcing that American courts have the power to invalidate laws that they find to violate the Constitution—a power now known as judicial review.[9] Because striking down the law removed any jurisdiction the Court might have had over the case, the Court could not issue the writ that Marbury had requested.

Background

 
President John Adams, who appointed Marbury just before his presidential term ended.
 
Thomas Jefferson, who succeeded Adams and believed Marbury's undelivered commission was void.
 
William Marbury, whose commission Madison refused to deliver.
 
James Madison, Jefferson's Secretary of State, who withheld Marbury's commission.

In the fiercely contested U.S. presidential election of 1800, the three main candidates were Thomas Jefferson, Aaron Burr, and the incumbent president, John Adams.[1] Adams espoused the pro-business and pro-national-government politics of the Federalist Party and its leader, Alexander Hamilton. Jefferson and Burr were leaders of the opposition Democratic-Republican Party, which favored agriculture and decentralization. American public opinion had gradually turned against the Federalists in the months leading up to the election. The shift was mainly due to the Federalists' use of the controversial Alien and Sedition Acts, but also due to growing tensions with Great Britain, with whom the Federalists favored close ties.[10] Jefferson easily won the election's popular vote but only narrowly defeated Adams in the Electoral College.[11]

After the results of the election became clear, Adams and the Federalists became determined to exercise their remaining influence before Jefferson took office, and they did everything they could to fill federal offices with "anti-Jeffersonians" who were loyal to the Federalists.[3][12] On March 2, 1801, just two days before his presidential term ended,[a] Adams nominated nearly 60 Federalist supporters to new circuit judge and justice of the peace positions the Federalist-controlled Congress had recently created. These last-minute nominees—whom Jefferson's supporters derisively called the "Midnight Judges"—included William Marbury, a prosperous businessman from Maryland.[13] An ardent Federalist, Marbury was active in Maryland politics and had been a vigorous supporter of the Adams presidency.[14]

The following day, March 3, the Senate approved Adams's nominations en masse. The appointees' commissions were immediately written out on parchment, then signed by Adams and sealed by Secretary of State John Marshall, who had been named the new Chief Justice of the Supreme Court in January but agreed to continue serving as Secretary of State for the remaining weeks of Adams's presidency.[12][15] Marshall then dispatched his younger brother James Markham Marshall to deliver the commissions to the appointees.[6] With only one day left before Jefferson's inauguration, James Marshall was able to deliver most of the commissions, but a few—including Marbury's—were not delivered.[12]

The day after, March 4, 1801, Jefferson was sworn in and became the third President of the United States. Jefferson instructed his new Secretary of State, James Madison, to withhold the undelivered commissions.[12] In Jefferson's opinion, the commissions were void because they had not been delivered before Adams left office.[5] Without their commissions, the appointees were unable to assume their new offices and duties. Over the next several months, Madison steadfastly refused to deliver Marbury's commission to him. Finally, in December 1801, Marbury filed a lawsuit against Madison at the Supreme Court, asking the court to force Madison to deliver his commission.[12] This lawsuit resulted in the case of Marbury v. Madison.

Decision

On February 24, 1803,[b] the Supreme Court issued a unanimous 4–0[c] decision against Marbury. The Court's opinion was written by Chief Justice John Marshall, who structured the Court's opinion around a series of three questions it answered in turn:

  • First, did Marbury have a right to his commission?
  • Second, if Marbury had a right to his commission, then was there a legal remedy for him to obtain it?
  • Third, if there was such a remedy, then could the Supreme Court legally issue it?[16]

Marbury's right to his commission

The Court began by holding that Marbury had a legal right to his commission. Marshall reasoned that all appropriate procedures were followed: the commission had been properly signed and sealed.[17] Madison had argued that the commissions were void if not delivered. The Court disagreed, saying that the delivery of the commission was merely a custom, not an essential element of the commission itself.[7]

The [President's] signature is a warrant for affixing the great seal to the commission, and the great seal is only to be affixed to an instrument which is complete. ... The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment, which must precede it and which is the mere act of the President.

— Marbury, 5 U.S. at 158, 160.

The Court said that because Marbury's commission was valid, Madison's withholding it was "violative of a vested legal right" on Marbury's part.[18]

Marbury's legal remedy

Turning to the second question, the Court said that the law provided Marbury a remedy for Madison's unlawful withholding of his commission. Marshall wrote that "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded." This rule derives from the ancient Roman legal maxim ubi jus, ibi remedium ("where there is a legal right, there is a legal remedy"), which was well established in the English common law.[19][20] In what the American legal scholar Akhil Reed Amar called "one of the most important and inspiring passages" of the opinion,[21] Marshall wrote:

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.

— Marbury, 5 U.S. at 163.

The Court then confirmed that a writ of mandamus—a type of court order that commands government officials to perform an act their official duties legally require them to perform—was the proper remedy for Marbury's situation.[22] But this raised the issue of whether the Court, which was part of the judicial branch of the government, had the power to command Madison, who as secretary of state was part of the executive branch of the government.[16] The Court held that so long as the remedy involved a mandatory duty to a specific person, and not a political matter left to discretion, the courts could provide the legal remedy.[23] Borrowing a phrase John Adams had drafted in 1779 for the Massachusetts State Constitution, Marshall wrote: "The government of the United States has been emphatically termed a government of laws, and not of men."[24]

The Supreme Court's jurisdiction

 
A painting of the U.S. Capitol as it appeared around the time of the Marbury decision (c. 1800). In addition to being the home of the U.S. Congress, the Capitol also housed the U.S. Supreme Court from 1801 until the Supreme Court Building's completion in 1935.[25]

This brought the Court to the third question: did the Supreme Court have proper jurisdiction over the case that would allow it to legally issue the writ of mandamus that Marbury wanted?[26] The answer depended entirely on how the Court interpreted the Judiciary Act of 1789. Congress had passed the Judiciary Act to establish the American federal court system. Section 13 of the Judiciary Act sets out the Supreme Court's original and appellate jurisdictions.

And be it further enacted, That the Supreme Court shall have exclusive jurisdiction over all cases of a civil nature where a state is a party ... [and] suits or proceedings against ambassadors, or other public ministers ... The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power 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.

— Judiciary Act of 1789, Section 13 (emphasis added)

Marbury had argued that the language of Section 13 of the Judiciary Act gave the Supreme Court the authority to issue writs of mandamus when hearing cases under exclusive (original) jurisdiction, not just appellate jurisdiction.[26] As Marshall explains in the opinion, original jurisdiction gives a court the power to be the first to hear and decide a case; appellate jurisdiction gives a court the power to hear an appeal from a lower court's decision and to "revise and correct" the previous decision.[9] Although the language on the power to issue writs of mandamus appears after Section 13's sentence on appellate jurisdiction, rather than with the earlier sentences on original jurisdiction, a semicolon separates it from the clause on appellate jurisdiction. The section does not make clear whether the mandamus clause was intended to be read as part of the appellate clause or on its own—in the opinion, Marshall quoted only the end of the section[27]—and the law's wording can plausibly be read either way.[28]

In the end, the Court agreed with Marbury and interpreted Section 13 of the Judiciary Act to have authorized the Court to exercise original jurisdiction over cases involving disputes over writs of mandamus.[29][30] This interpretation, however, meant that the Judiciary Act conflicted with Article III of the Constitution. Article III defines the Supreme Court's jurisdiction as follows:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, 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 (emphasis added).

Article III says that the Supreme Court only has original jurisdiction over cases where a U.S. state is a party to a lawsuit or where a lawsuit involves foreign dignitaries. Neither of these categories covered Marbury's lawsuit, which was a dispute over a writ of mandamus for his justice of the peace commission. According to the Constitution, therefore, the Court did not have original jurisdiction over a case like Marbury's.[9][29]

Because the Court had interpreted the Judiciary Act to have given it original jurisdiction over lawsuits for writs of mandamus, this meant the Judiciary Act had taken the Constitution's initial scope for the Supreme Court's original jurisdiction, which did not cover cases involving writs of mandamus, and expanded it to include them. The Court ruled that Congress cannot increase the Supreme Court's original jurisdiction as it was set down in the Constitution, and it therefore held that the relevant portion of Section 13 of the Judiciary Act violated Article III of the Constitution.[29]

Judicial review and striking down the law

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

After ruling that Section 13 of the Judiciary Act conflicted with the Constitution, the Court struck down that section in its first ever declaration of the power of judicial review.[9][31] The Court ruled that American federal courts have the power to refuse to give any consideration to congressional legislation that is inconsistent with their interpretation of the Constitution—a move colloquially known as "striking down" laws.[32]

The U.S. Constitution does not explicitly give the federal judiciary the power of judicial review.[33] Nevertheless, the Court's opinion gives many reasons in support of the judiciary's possession of the power. First, Marshall reasoned that the written nature of the Constitution inherently established judicial review.[34][35] Borrowing from Alexander Hamilton's essay Federalist No. 78, Marshall wrote:

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. ... 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.

— Marbury, 5 U.S. at 176–77.[36]

Second, the Court declared that deciding the constitutionality of the laws it applies is an inherent part of the American judiciary's role.[37] In what has become the most famous and most frequently quoted line of the opinion, Marshall wrote:

It is emphatically the province and duty of the judicial department to say what the law is.

— Marbury, 5 U.S. at 177.[38]

Marshall reasoned that the Constitution places limits on the American government's powers, and that those limits would be meaningless unless they were subject to judicial review and enforcement.[35][37] He reasoned that the Constitution's provisions limiting Congress's power—such as the prohibitions on ex post facto laws and bills of attainder—meant that in some cases judges would be forced to choose between enforcing the Constitution or following Congress.[39] Marshall held "virtually as a matter of iron logic" that in the event of conflict between the Constitution and statutory laws passed by Congress, constitutional law must be supreme.[9]

Third, the Court said that denying the supremacy of the Constitution over Congress's acts would mean that "courts must close their eyes on the constitution, and see only the law."[40] This, Marshall wrote, would make Congress omnipotent, since none of the laws it passed would ever be invalid.[35]

This doctrine ... 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.

— Marbury, 5 U.S. at 178.[41]

Marshall then gave several other reasons in favor of judicial review. He reasoned that the authorization in Article III of the Constitution that the Court can decide cases arising "under this Constitution" implied that the Court had the power to strike down laws conflicting with the Constitution.[37] This, Marshall wrote, meant that the Founders were willing to have the American judiciary use and interpret the Constitution when judging cases. He also said that federal judges' oaths of office—in which they swear to discharge their duties impartially and "agreeably to the Constitution and laws of the United States"—requires them to support the Constitution.[42] Lastly, Marshall reasoned that judicial review is implied in the Supremacy Clause of Article VI of the U.S. Constitution, because it declares that the supreme law of the United States is the Constitution and laws made "in Pursuance thereof".[42][43]

Having given his list of reasons, Marshall concluded the Court's opinion by reaffirming the Court's ruling on the invalidity of Section 13 of the Judiciary Act and, therefore, the Court's inability to issue Marbury's writ of mandamus.

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.

— Marbury, 5 U.S. at 180.

Analysis

Political dilemma

 
An 1808 engraving of Chief Justice John Marshall by French portrait painter Charles Balthazar Julien Févret de Saint-Mémin

Besides its legal issues, the case of Marbury v. Madison also created a difficult political dilemma for John Marshall and the Supreme Court.[44] If the Court had ruled in Marbury's favor and issued a writ of mandamus ordering Madison to deliver Marbury's commission, then Jefferson and Madison would probably have simply ignored the writ, which would have made the Court look impotent and emphasized the shakiness of the early American judiciary.[44] On the other hand, a simple ruling against Marbury would have given Jefferson and the Democratic-Republicans a clear political victory over the Federalists.[44]

Marshall solved both problems. First, he had the Court rule that Madison's withholding of Marbury's commission was illegal, which pleased the Federalists. Second, however, he also ruled that the Court could not grant Marbury his requested writ of mandamus, which gave Jefferson and the Democratic-Republicans the result they desired. But finally, in what the American legal scholar Laurence Tribe calls "an oft-told tale ... [that] remains awe-inspiring", Marshall had the Court rule against Marbury in a way that maneuvered Marbury's simple petition for a writ of mandamus into a case that presented a question that went to the heart of American constitutional law itself.[45] The American political historian Robert G. McCloskey described:

[Marbury v. Madison] is a masterwork of indirection, a brilliant example of Marshall's capacity to sidestep danger while seeming to court it. ... The danger of a head-on clash with the Jeffersonians was averted by the denial of jurisdiction: but, at the same time, the declaration that the commission was illegally withheld scotched any impression that the Court condoned the administration's behavior. These negative maneuvers were artful achievements in their own right. But the touch of genius is evident when Marshall, not content with having rescued a bad situation, seizes the occasion to set forth the doctrine of judicial review. It is easy for us to see in retrospect that the occasion was golden, ... but only a judge of Marshall's discernment could have recognized it.[46]

Marshall had been looking for a case suitable for introducing judicial review and was eager to use the situation in Marbury to establish his claim.[47] He introduced judicial review—a move Jefferson decried—but used it to strike down a provision of a law that he read to have expanded the Supreme Court's powers, and thereby produced Jefferson's hoped-for result of Marbury losing his case.[48] Marshall "seized the occasion to uphold the institution of judicial review, but he did so in the course of reaching a judgment that his political opponents could neither defy nor protest."[49] Although Jefferson criticized the Court's decision, he accepted it, and Marshall's opinion in Marbury "articulate[d] a role for the federal courts that survives to this day."[50] The American legal scholar Erwin Chemerinsky concludes: "The brilliance of Marshall's opinion cannot be overstated."[48]

Legal criticism

The Supreme Court's historic decision in Marbury v. Madison continues to be the subject of critical analysis and inquiry.[51] In a 1955 Harvard Law Review article, U.S. Supreme Court Justice Felix Frankfurter emphasized that one can criticize Marshall's opinion in Marbury without demeaning it: "The courage of Marbury v. Madison is not minimized by suggesting that its reasoning is not impeccable and its conclusion, however wise, not inevitable."[11]

Criticisms of Marshall's opinion in Marbury usually fall into two general categories.[51] First, some criticize the way Marshall "strove" to reach the conclusion that the U.S. Supreme Court has constitutional authority over the other branches of the U.S. government. Today, American courts generally follow the principle of "constitutional avoidance": if a certain interpretation of a law raises constitutional problems, they prefer to use alternative interpretations that avoid these problems, as long as the alternative interpretations are plausible.[52] In Marbury, Marshall could have avoided the constitutional questions through different legal rulings. If the Court had ruled that Marbury did not have a right to his commission until it was delivered, or if he had ruled that refusals to honor political appointments could only be remedied through the political process and not the judicial process, then it would have disposed of the case immediately and the Court would not have reached the case's constitutional issues.[53] Marshall did not do so, and many legal scholars have criticized him for it.[52] Some scholars have responded that the "constitutional avoidance" principle did not exist in 1803 and that it is "only a general guide for Court action", not an "ironclad rule".[54] Alternatively, it has also been argued that the claim that Marshall "strove" to create a controversy largely vanishes when the case is viewed from the legal perspective of the late 18th century, when American colonies' and states' supreme courts were largely modeled on England's Court of King's Bench, which inherently possessed mandamus powers.[55]

Second, Marshall's arguments for the Court's authority are sometimes said to be mere "series of assertions", rather than substantive reasons logically laid out to support his position.[56] Scholars generally agree that Marshall's series of assertions regarding the U.S. Constitution and the actions of the other branches of government do not "inexorably lead to the conclusion that Marshall draws from them."[56] Marshall's assertion of the American judiciary's authority to review executive branch actions was the most controversial issue when Marbury was first decided, and several subsequent U.S. presidents have tried to dispute it, to varying degrees.[56]

Additionally, it is questionable whether Marshall should have participated in the adjudication of the Marbury case, because he had played a role in the underlying dispute.[16] Marshall was still the acting secretary of state when Adams nominated Marbury and the other "Midnight Judges". He had signed Marbury and the other appointees' commissions and had been responsible for their delivery.[16] This potential conflict of interest raises strong grounds for Marshall to have recused himself from the case.[16] In hindsight, the fact that Marshall did not recuse himself from Marbury is likely indicative of his eagerness to hear the case and use it to establish judicial review.[53]

Legacy

Marbury v. Madison is regarded as the single most important decision in American constitutional law.[1][2] It established U.S. federal judges' authority to review the constitutionality of Congress's legislative acts,[1] and to this day the Supreme Court's power to review the constitutionality of American laws at both the federal and state level "is generally rested upon the epic decision of Marbury v. Madison."[57]

 
The subpoena duces tecum (order to bring items as evidence) issued to President Richard Nixon that was the center of the dispute in the 1974 judicial review case United States v. Nixon.

Although the Court's opinion in Marbury established the power of judicial review in American federal law, it did not invent or create it. Some 18th-century British jurists had argued that English courts had the power to circumscribe Parliament.[58] The idea became widely accepted in Colonial America—especially in Marshall, Jefferson, and Madison's native Virginia—under the theory that in America only the people were sovereign, not the government, and so the courts should only implement legitimate laws.[58][59] American courts' "independent power and duty to interpret the law" was well established by the time of the Constitutional Convention in 1787,[60] and Hamilton had defended the concept in Federalist No. 78. In addition, the 1796 Supreme Court case Hylton v. United States considered whether a tax on carriages was constitutional, though the Court ruled that the statute in question was in fact constitutional and did not actually exercise the power.[61] Nevertheless, Marshall's opinion in Marbury was the Supreme Court's first mention of, and exercise of, that power. It made the practice more routine, rather than exceptional, and prepared the way for the Court's opinion in the 1819 case McCulloch v. Maryland, in which Marshall implied that the Supreme Court was the supreme interpreter of the U.S. Constitution.[62]

Marbury also established that the power of judicial review covers actions by the executive branch—the President and his cabinet members. However, American courts' power of judicial review over executive branch actions only extends to matters in which the executive has a legal duty to act or refrain from acting, and does not extend to matters that are entirely within the President's discretion, such as whether to veto a bill or whom to appoint to an office. This power has been the basis of later important Supreme Court decisions. In its 1974 decision United States v. Nixon, for example, the Supreme Court held that President Richard Nixon had to comply with a subpoena to provide tapes of his conversations for use in a criminal trial related to the Watergate scandal, which ultimately led to Nixon's resignation.[63][64]

Although it is a potent check on the other branches of the U.S. government, federal courts rarely exercised the power of judicial review in early American history. After deciding Marbury in 1803, the Supreme Court did not strike down another federal law until 1857, when it struck down the Missouri Compromise in its now-infamous decision Dred Scott v. Sandford, a ruling that contributed to the outbreak of the American Civil War.[65]

References

Notes

  1. ^ The U.S. Constitution originally had new presidents take office in early March, which left a four-month gap between presidential inaugurations and the elections from the previous November. This changed in 1933 with the adoption of the Twentieth Amendment, which moved presidential inaugurations up to January 20 and thereby reduced the period between elections and inaugurations to about two and a half months.
  2. ^ In retaliation for Adams's appointment of the "Midnight Judges", Jefferson and the new Democratic-Republican-controlled Congress passed a bill that canceled the Supreme Court's 1802 term. This prevented all the Court's pending cases, including Marbury v. Madison, from being decided until 1803.
  3. ^ Due to illnesses, justices William Cushing and Alfred Moore did not participate in the Court's decision.

Citations

  1. ^ a b c d Chemerinsky (2019), § 2.2.1, p. 39.
  2. ^ a b Chemerinsky (2021), § 1.3, p. 12.
  3. ^ a b McCloskey (2010), p. 25.
  4. ^ a b Chemerinsky (2019), § 2.2.1, pp. 39–40.
  5. ^ a b Pohlman (2005), p. 21.
  6. ^ a b Chemerinsky (2019), § 2.2.1, p. 40.
  7. ^ a b Chemerinsky (2019), § 2.2.1, pp. 41–42.
  8. ^ Chemerinsky (2019), § 2.2.1, p. 44.
  9. ^ a b c d e Epstein (2014), p. 89.
  10. ^ McCloskey (2010), pp. 23–24.
  11. ^ a b Frankfurter (1955), p. 219
  12. ^ a b c d e Chemerinsky (2019), § 2.2.1, p. 40.
  13. ^ Brest et al. (2018), p. 115.
  14. ^ Miller (2009), p. 44.
  15. ^ Paulsen et al. (2013), p. 141.
  16. ^ a b c d e Chemerinsky (2019), § 2.2.1, p. 41.
  17. ^ Chemerinsky (2019), § 2.2.1, p. 41.
  18. ^ Chemerinsky (2019), § 2.2.1, p. 42.
  19. ^ Amar (1989), p. 447.
  20. ^ Amar (1987), pp. 1485–86.
  21. ^ Amar (1987), p. 1486.
  22. ^ Brest et al. (2018), pp. 124–25.
  23. ^ Chemerinsky (2019), § 2.2.1, pp. 42–43.
  24. ^ Chemerinsky (2019), § 2.2.1, p. 41, quoting Marbury, 5 U.S. at 163.
  25. ^ The Old Supreme Court Chamber, 1810–1860 (PDF). Office of Senate Curator (Report). U.S. Senate Commission on Art. June 24, 2015 [2014-02-10]. S. Pub. 113-3.
  26. ^ a b Chemerinsky (2019), § 2.2.1, p. 43.
  27. ^ Van Alstyne (1969), p. 15.
  28. ^ Nowak & Rotunda (2012), § 1.3, p. 50.
  29. ^ a b c Chemerinsky (2019), § 2.2.1, p. 44.
  30. ^ Fallon et al. (2015), pp. 69–70.
  31. ^ Currie (1997), p. 53.
  32. ^ Tribe (2000), p. 207.
  33. ^ Tribe (2000), pp. 207–08.
  34. ^ Prakash & Yoo (2003), p. 914.
  35. ^ a b c Tribe (2000), p. 210.
  36. ^ Quoted in part in Chemerinsky (2019), § 2.2.1, p. 45, and Tribe (2000), p. 210.
  37. ^ a b c Chemerinsky (2019), § 2.2.1, p. 45.
  38. ^ Quoted in Chemerinsky (2019), § 2.2.1, p. 45.
  39. ^ Nowak & Rotunda (2012), § 1.3, pp. 52–53.
  40. ^ Tribe (2000), p. 210, quoting Marbury, 5 U.S. at 178.
  41. ^ Quoted in Tribe (2000), p. 210.
  42. ^ a b Nowak & Rotunda (2012), § 1.3, p. 53.
  43. ^ Chemerinsky (2019), § 2.2.1, p. 46.
  44. ^ a b c McCloskey (2010), p. 26.
  45. ^ Tribe (2000), p. 208, note 5.
  46. ^ McCloskey (2010), pp. 25–27.
  47. ^ Nowak & Rotunda (2012), § 1.4(a), p. 55.
  48. ^ a b Chemerinsky (2019), § 2.2.1, p. 46.
  49. ^ Fallon et al. (2015), p. 69.
  50. ^ Chemerinsky (2019), § 2.2.1, pp. 46–47.
  51. ^ a b Nowak & Rotunda (2012), § 1.4(a), p. 54.
  52. ^ a b Brest et al. (2018), pp. 133–34.
  53. ^ a b Nowak & Rotunda (2012), § 1.4(a), p. 55.
  54. ^ Nowak & Rotunda (2012), §1.4(a), pp. 55–56.
  55. ^ Pfander (2001), pp. 1518–19.
  56. ^ a b c Nowak & Rotunda (2012), § 1.4(a), p. 56.
  57. ^ Van Alstyne (1969), p. 1.
  58. ^ a b Cornell & Leonard (2008), p. 540.
  59. ^ Treanor (2005), p. 556.
  60. ^ Paulsen (2003), p. 2707.
  61. ^ "Hylton v. United States, 3 U.S. 171 (1796)". Justia Law. Retrieved March 2, 2023.
  62. ^ Cornell & Leonard (2008), p. 542.
  63. ^ Tribe (2000), p. 179.
  64. ^ Chemerinsky (2021), § 1.3, p. 14.
  65. ^ Chemerinsky (2019), § 2.2.1, p. 47.

Works cited

  • Amar, Akhil Reed (1987). "Of Sovereignty and Federalism". Yale Law Journal. 96 (7): 1425–1520. doi:10.2307/796493. JSTOR 796493.
  • Amar, Akhil Reed (1989). "Marbury, Section 13, and the Original Jurisdiction of the Supreme Court". University of Chicago Law Review. 56 (2): 443–99. doi:10.2307/1599844. JSTOR 1599844.
  • Brest, Paul; Levinson, Sanford; Balkin, Jack M.; Amar, Akhil Reed; Siegel, Reva B. (2018). Processes of Constitutional Decisionmaking: Cases and Materials (7th ed.). New York: Wolters Kluwer. ISBN 978-1-4548-8749-2.
  • Chemerinsky, Erwin (2019). Constitutional Law: Principles and Policies (6th ed.). New York: Wolters Kluwer. ISBN 978-1-4548-9574-9.
  • Chemerinsky, Erwin (2021). Federal Jurisdiction (8th ed.). New York: Wolters Kluwer. ISBN 978-1-5438-1371-5.
  • Cornell, Saul; Leonard, Gerald (2008). "The Consolidation of the Early Federal System, 1791–1812". In Grossberg, Michael; Tomlins, Christopher (eds.). The Cambridge History of Law in America, Volume I: Early America (1580–1815). Cambridge: Cambridge University Press. pp. 518–54. ISBN 978-0-521-80305-2.
  • Currie, David P. (1997). The Constitution in Congress: The Federalist Period 1789–1801. Chicago: University of Chicago Press. ISBN 9780226131146.
  • Epstein, Richard A. (2014). The Classical Liberal Constitution: The Uncertain Quest for Limited Government. Cambridge, Massachusetts: Harvard University Press. ISBN 978-0-674-72489-1.
  • Fallon, Richard H. Jr.; Manning, John F.; Meltzer, Daniel J.; Shapiro, David L. (2015). Hart and Wechsler's The Federal Courts and the Federal System (7th ed.). St. Paul, Minnesota: Foundation Press. ISBN 978-1-60930-427-0.
  • Frankfurter, Felix (1955). "John Marshall and the Judicial Function". Harvard Law Review. 69 (2): 217–38. doi:10.2307/1337866. JSTOR 1337866.
  • McCloskey, Robert G. (2010). The American Supreme Court. Revised by Sanford Levinson (5th ed.). Chicago: University of Chicago Press. ISBN 978-0-226-55686-4.
  • Miller, Mark Carlton (2009). The View of the Courts from the Hill: Interactions Between Congress and the Federal Judiciary. Charlottesville: University of Virginia Press. ISBN 9780813928104.
  • Nowak, John E.; Rotunda, Ronald D. (2012). Treatise on Constitutional Law: Substance and Procedure (5th ed.). Eagan, Minnesota: West. OCLC 798148265.
  • Paulsen, Michael Stokes (2003). "The Irrepressible Myth of Marbury". Michigan Law Review. 101 (8): 2706–43. doi:10.2307/3595393. JSTOR 3595393.
  • Paulsen, Michael Stokes; Calabresi, Steven G.; McConnell, Michael W.; Bray, Samuel (2013). The Constitution of the United States. University Casebook Series (2nd ed.). St. Paul: Foundation Press. ISBN 978-1-60930-271-9.
  • Pfander, James E. (2001). "Marbury, Original Jurisdiction, and the Supreme Court's Supervisory Powers". Columbia Law Review. 101 (7): 1515–1612. doi:10.2307/1123808. JSTOR 1123808.
  • Pohlman, H. L. (2005). Constitutional Debate in Action: Governmental Powers. Lanham: Rowman & Littlefield. ISBN 978-0-7425-3593-0.
  • Prakash, Saikrishna; Yoo, John (2003). "The Origins of Judicial Review". University of Chicago Law Review. 70 (3): 887–982. doi:10.2307/1600662. JSTOR 1600662.
  • Treanor, William Michael (2005). "Judicial Review Before Marbury". Stanford Law Review. 58 (2): 455–562. JSTOR 40040272.
  • Tribe, Laurence H. (2000). American Constitutional Law (3rd ed.). New York: Foundation Press. ISBN 978-1-56662-714-6.
  • Van Alstyne, William (1969). "A Critical Guide to Marbury v. Madison". Duke Law Journal. 18 (1): 1–49.

Further reading

  • Nelson, William E. (2000). Marbury v. Madison: The Origins and Legacy of Judicial Review. University Press of Kansas. ISBN 978-0-7006-1062-4. (one introduction to the case)
  • Clinton, Robert Lowry (1991). Marbury v. Madison and Judicial Review. University Press of Kansas. ISBN 978-0-7006-0517-0. (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 H. (1999). A People's History of the Supreme Court. Penguin Books. pp. 104–107. ISBN 978-0-14-029201-5.
  • Newmyer, R. Kent (2001). John Marshall and the Heroic Age of the Supreme Court. Louisiana State University Press. ISBN 978-0-8071-3249-4.
  • James M. O'Fallon, The Case of Benjamin More: A Lost Episode in the Struggle over Repeal of the 1801 Judiciary Act, 11 Law & Hist. Rev. 43 (1993).
  • Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press. pp. 1–16. ISBN 978-0-8070-0036-6.
  • Sloan, Cliff; McKean, David (2009). The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court. New York, NY: PublicAffairs. ISBN 978-1-58648-426-2.
  • Trachtman, Michael G. (September 6, 2016). The Supremes' Greatest Hits, 2nd Revised & Updated Edition: The 44 Supreme Court Cases That Most Directly Affect Your Life (Third, Revised ed.). Sterling. ISBN 9781454920779.

External links

  • Text of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is available from: Cornell  Findlaw  Justia  Library of Congress  OpenJurist 
  • Primary Documents in American History: Marbury v. Madison from the Library of Congress
  • Lesson plan for grades 9–12 from National Endowment for the Humanities
  • 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
  • The short film Marbury v. Madison (1977) is available for free viewing and download at the Internet Archive.
  • "Supreme Court Landmark Case Marbury v. Madison" from C-SPAN's Landmark Cases: Historic Supreme Court Decisions
  •   Marbury v. Madison public domain audiobook at LibriVox

marbury, madison, cranch, 1803, landmark, supreme, court, case, that, established, principle, judicial, review, united, states, meaning, that, american, courts, have, power, strike, down, laws, statutes, they, find, violate, constitution, united, states, decid. Marbury v Madison 5 U S 1 Cranch 137 1803 was a landmark U S Supreme Court case that established the principle of judicial review in the United States meaning that American courts have the power to strike down laws and statutes they find to violate the Constitution of the United States Decided in 1803 Marbury is regarded as the single most important decision in American constitutional law 1 2 The Court s landmark decision established that the U S Constitution is actual law not just a statement of political principles and ideals It also helped define the boundary between the constitutionally separate executive and judicial branches of the federal government Marbury v MadisonSupreme Court of the United StatesOriginal jurisdictionArgued February 11 1803Decided February 24 1803Full case nameWilliam Marbury v James Madison Secretary of State of the United StatesCitations5 U S 137 more 1 Cranch 137 2 L Ed 60 1803 U S LEXIS 352DecisionOpinionCase historyPriorOriginal action filed in U S Supreme Court order to show cause why writ of mandamus should not issue December 1801OutcomeSection 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 judiciary to interpret what the Constitution permits Court membershipChief Justice John Marshall Associate Justices William Cushing William PatersonSamuel Chase Bushrod WashingtonAlfred MooreCase opinionMajorityMarshall joined by Paterson Chase WashingtonCushing and Moore took no part in the consideration or decision of the case Laws appliedU S Const arts I III Judiciary Act of 1789 13The case originated in early 1801 as part of the political rivalry between outgoing President John Adams and incoming President Thomas Jefferson 3 Adams had lost the U S presidential election of 1800 to Jefferson In March 1801 just two days before his term as president ended Adams appointed several dozen Federalist Party supporters to new circuit judge and justice of the peace positions in an attempt to frustrate Jefferson and his supporters in the Democratic Republican Party 4 The outgoing U S Senate quickly confirmed Adams s appointments but outgoing Secretary of State John Marshall was unable to deliver all of the new judges commissions before Adams s departure and Jefferson s inauguration 4 Jefferson believed the undelivered commissions were void and instructed his Secretary of State James Madison not to deliver them 5 One of the undelivered commissions belonged to William Marbury a Maryland businessman who had been a strong supporter of Adams and the Federalists In late 1801 after Madison had repeatedly refused to deliver his commission Marbury filed a lawsuit in the Supreme Court asking the Court to issue a writ of mandamus forcing Madison to deliver his commission 6 In an opinion written by Marshall who by then had been appointed Chief Justice of the United States the Supreme Court held that Madison s refusal to deliver Marbury s commission was illegal The Court also held that it was normally proper in such situations for a court to order the government official in question to deliver the commission 7 In Marbury s case however the Court did not order Madison to comply Examining the law Congress had passed to define Supreme Court jurisdiction over types of cases like Marbury s Section 13 of the Judiciary Act of 1789 the Court found that the Act had expanded the definition of the Supreme Court s jurisdiction beyond what was originally set forth in the U S Constitution 8 The Court then struck down Section 13 of the Act announcing that American courts have the power to invalidate laws that they find to violate the Constitution a power now known as judicial review 9 Because striking down the law removed any jurisdiction the Court might have had over the case the Court could not issue the writ that Marbury had requested Contents 1 Background 2 Decision 2 1 Marbury s right to his commission 2 2 Marbury s legal remedy 2 3 The Supreme Court s jurisdiction 2 4 Judicial review and striking down the law 3 Analysis 3 1 Political dilemma 3 2 Legal criticism 4 Legacy 5 References 5 1 Notes 5 2 Citations 5 3 Works cited 6 Further reading 7 External linksBackground nbsp President John Adams who appointed Marbury just before his presidential term ended nbsp Thomas Jefferson who succeeded Adams and believed Marbury s undelivered commission was void nbsp William Marbury whose commission Madison refused to deliver nbsp James Madison Jefferson s Secretary of State who withheld Marbury s commission In the fiercely contested U S presidential election of 1800 the three main candidates were Thomas Jefferson Aaron Burr and the incumbent president John Adams 1 Adams espoused the pro business and pro national government politics of the Federalist Party and its leader Alexander Hamilton Jefferson and Burr were leaders of the opposition Democratic Republican Party which favored agriculture and decentralization American public opinion had gradually turned against the Federalists in the months leading up to the election The shift was mainly due to the Federalists use of the controversial Alien and Sedition Acts but also due to growing tensions with Great Britain with whom the Federalists favored close ties 10 Jefferson easily won the election s popular vote but only narrowly defeated Adams in the Electoral College 11 After the results of the election became clear Adams and the Federalists became determined to exercise their remaining influence before Jefferson took office and they did everything they could to fill federal offices with anti Jeffersonians who were loyal to the Federalists 3 12 On March 2 1801 just two days before his presidential term ended a Adams nominated nearly 60 Federalist supporters to new circuit judge and justice of the peace positions the Federalist controlled Congress had recently created These last minute nominees whom Jefferson s supporters derisively called the Midnight Judges included William Marbury a prosperous businessman from Maryland 13 An ardent Federalist Marbury was active in Maryland politics and had been a vigorous supporter of the Adams presidency 14 The following day March 3 the Senate approved Adams s nominations en masse The appointees commissions were immediately written out on parchment then signed by Adams and sealed by Secretary of State John Marshall who had been named the new Chief Justice of the Supreme Court in January but agreed to continue serving as Secretary of State for the remaining weeks of Adams s presidency 12 15 Marshall then dispatched his younger brother James Markham Marshall to deliver the commissions to the appointees 6 With only one day left before Jefferson s inauguration James Marshall was able to deliver most of the commissions but a few including Marbury s were not delivered 12 The day after March 4 1801 Jefferson was sworn in and became the third President of the United States Jefferson instructed his new Secretary of State James Madison to withhold the undelivered commissions 12 In Jefferson s opinion the commissions were void because they had not been delivered before Adams left office 5 Without their commissions the appointees were unable to assume their new offices and duties Over the next several months Madison steadfastly refused to deliver Marbury s commission to him Finally in December 1801 Marbury filed a lawsuit against Madison at the Supreme Court asking the court to force Madison to deliver his commission 12 This lawsuit resulted in the case of Marbury v Madison DecisionOn February 24 1803 b the Supreme Court issued a unanimous 4 0 c decision against Marbury The Court s opinion was written by Chief Justice John Marshall who structured the Court s opinion around a series of three questions it answered in turn First did Marbury have a right to his commission Second if Marbury had a right to his commission then was there a legal remedy for him to obtain it Third if there was such a remedy then could the Supreme Court legally issue it 16 Marbury s right to his commission The Court began by holding that Marbury had a legal right to his commission Marshall reasoned that all appropriate procedures were followed the commission had been properly signed and sealed 17 Madison had argued that the commissions were void if not delivered The Court disagreed saying that the delivery of the commission was merely a custom not an essential element of the commission itself 7 The President s signature is a warrant for affixing the great seal to the commission and the great seal is only to be affixed to an instrument which is complete The transmission of the commission is a practice directed by convenience but not by law It cannot therefore be necessary to constitute the appointment which must precede it and which is the mere act of the President Marbury 5 U S at 158 160 The Court said that because Marbury s commission was valid Madison s withholding it was violative of a vested legal right on Marbury s part 18 Marbury s legal remedy Turning to the second question the Court said that the law provided Marbury a remedy for Madison s unlawful withholding of his commission Marshall wrote that it is a general and indisputable rule that where there is a legal right there is also a legal remedy by suit or action at law whenever that right is invaded This rule derives from the ancient Roman legal maxim ubi jus ibi remedium where there is a legal right there is a legal remedy which was well established in the English common law 19 20 In what the American legal scholar Akhil Reed Amar called one of the most important and inspiring passages of the opinion 21 Marshall wrote The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury Marbury 5 U S at 163 The Court then confirmed that a writ of mandamus a type of court order that commands government officials to perform an act their official duties legally require them to perform was the proper remedy for Marbury s situation 22 But this raised the issue of whether the Court which was part of the judicial branch of the government had the power to command Madison who as secretary of state was part of the executive branch of the government 16 The Court held that so long as the remedy involved a mandatory duty to a specific person and not a political matter left to discretion the courts could provide the legal remedy 23 Borrowing a phrase John Adams had drafted in 1779 for the Massachusetts State Constitution Marshall wrote The government of the United States has been emphatically termed a government of laws and not of men 24 The Supreme Court s jurisdiction nbsp A painting of the U S Capitol as it appeared around the time of the Marbury decision c 1800 In addition to being the home of the U S Congress the Capitol also housed the U S Supreme Court from 1801 until the Supreme Court Building s completion in 1935 25 This brought the Court to the third question did the Supreme Court have proper jurisdiction over the case that would allow it to legally issue the writ of mandamus that Marbury wanted 26 The answer depended entirely on how the Court interpreted the Judiciary Act of 1789 Congress had passed the Judiciary Act to establish the American federal court system Section 13 of the Judiciary Act sets out the Supreme Court s original and appellate jurisdictions And be it further enacted That the Supreme Court shall have exclusive jurisdiction over all cases of a civil nature where a state is a party and suits or proceedings against ambassadors or other public ministers The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states in the cases herein after specially provided for and shall have power 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 Judiciary Act of 1789 Section 13 emphasis added Marbury had argued that the language of Section 13 of the Judiciary Act gave the Supreme Court the authority to issue writs of mandamus when hearing cases under exclusive original jurisdiction not just appellate jurisdiction 26 As Marshall explains in the opinion original jurisdiction gives a court the power to be the first to hear and decide a case appellate jurisdiction gives a court the power to hear an appeal from a lower court s decision and to revise and correct the previous decision 9 Although the language on the power to issue writs of mandamus appears after Section 13 s sentence on appellate jurisdiction rather than with the earlier sentences on original jurisdiction a semicolon separates it from the clause on appellate jurisdiction The section does not make clear whether the mandamus clause was intended to be read as part of the appellate clause or on its own in the opinion Marshall quoted only the end of the section 27 and the law s wording can plausibly be read either way 28 In the end the Court agreed with Marbury and interpreted Section 13 of the Judiciary Act to have authorized the Court to exercise original jurisdiction over cases involving disputes over writs of mandamus 29 30 This interpretation however meant that the Judiciary Act conflicted with Article III of the Constitution Article III defines the Supreme Court s jurisdiction as follows In all Cases affecting Ambassadors other public Ministers and Consuls and those in which a State shall be Party the supreme Court shall have original Jurisdiction In all the other Cases before mentioned 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 emphasis added Article III says that the Supreme Court only has original jurisdiction over cases where a U S state is a party to a lawsuit or where a lawsuit involves foreign dignitaries Neither of these categories covered Marbury s lawsuit which was a dispute over a writ of mandamus for his justice of the peace commission According to the Constitution therefore the Court did not have original jurisdiction over a case like Marbury s 9 29 Because the Court had interpreted the Judiciary Act to have given it original jurisdiction over lawsuits for writs of mandamus this meant the Judiciary Act had taken the Constitution s initial scope for the Supreme Court s original jurisdiction which did not cover cases involving writs of mandamus and expanded it to include them The Court ruled that Congress cannot increase the Supreme Court s original jurisdiction as it was set down in the Constitution and it therefore held that the relevant portion of Section 13 of the Judiciary Act violated Article III of the Constitution 29 Judicial review and striking down the law Main article Judicial review in the United States nbsp Inscription on the wall of the Supreme Court Building from Marbury v Madison in which Chief Justice John Marshall statue foreground outlined the concept of judicial review After ruling that Section 13 of the Judiciary Act conflicted with the Constitution the Court struck down that section in its first ever declaration of the power of judicial review 9 31 The Court ruled that American federal courts have the power to refuse to give any consideration to congressional legislation that is inconsistent with their interpretation of the Constitution a move colloquially known as striking down laws 32 The U S Constitution does not explicitly give the federal judiciary the power of judicial review 33 Nevertheless the Court s opinion gives many reasons in support of the judiciary s possession of the power First Marshall reasoned that the written nature of the Constitution inherently established judicial review 34 35 Borrowing from Alexander Hamilton s essay Federalist No 78 Marshall wrote The powers of the legislature are defined and limited and that those limits may not be mistaken or forgotten the constitution is written 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 Marbury 5 U S at 176 77 36 Second the Court declared that deciding the constitutionality of the laws it applies is an inherent part of the American judiciary s role 37 In what has become the most famous and most frequently quoted line of the opinion Marshall wrote It is emphatically the province and duty of the judicial department to say what the law is Marbury 5 U S at 177 38 Marshall reasoned that the Constitution places limits on the American government s powers and that those limits would be meaningless unless they were subject to judicial review and enforcement 35 37 He reasoned that the Constitution s provisions limiting Congress s power such as the prohibitions on ex post facto laws and bills of attainder meant that in some cases judges would be forced to choose between enforcing the Constitution or following Congress 39 Marshall held virtually as a matter of iron logic that in the event of conflict between the Constitution and statutory laws passed by Congress constitutional law must be supreme 9 Third the Court said that denying the supremacy of the Constitution over Congress s acts would mean that courts must close their eyes on the constitution and see only the law 40 This Marshall wrote would make Congress omnipotent since none of the laws it passed would ever be invalid 35 This doctrine 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 Marbury 5 U S at 178 41 Marshall then gave several other reasons in favor of judicial review He reasoned that the authorization in Article III of the Constitution that the Court can decide cases arising under this Constitution implied that the Court had the power to strike down laws conflicting with the Constitution 37 This Marshall wrote meant that the Founders were willing to have the American judiciary use and interpret the Constitution when judging cases He also said that federal judges oaths of office in which they swear to discharge their duties impartially and agreeably to the Constitution and laws of the United States requires them to support the Constitution 42 Lastly Marshall reasoned that judicial review is implied in the Supremacy Clause of Article VI of the U S Constitution because it declares that the supreme law of the United States is the Constitution and laws made in Pursuance thereof 42 43 Having given his list of reasons Marshall concluded the Court s opinion by reaffirming the Court s ruling on the invalidity of Section 13 of the Judiciary Act and therefore the Court s inability to issue Marbury s writ of mandamus 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 Marbury 5 U S at 180 AnalysisPolitical dilemma nbsp An 1808 engraving of Chief Justice John Marshall by French portrait painter Charles Balthazar Julien Fevret de Saint MeminBesides its legal issues the case of Marbury v Madison also created a difficult political dilemma for John Marshall and the Supreme Court 44 If the Court had ruled in Marbury s favor and issued a writ of mandamus ordering Madison to deliver Marbury s commission then Jefferson and Madison would probably have simply ignored the writ which would have made the Court look impotent and emphasized the shakiness of the early American judiciary 44 On the other hand a simple ruling against Marbury would have given Jefferson and the Democratic Republicans a clear political victory over the Federalists 44 Marshall solved both problems First he had the Court rule that Madison s withholding of Marbury s commission was illegal which pleased the Federalists Second however he also ruled that the Court could not grant Marbury his requested writ of mandamus which gave Jefferson and the Democratic Republicans the result they desired But finally in what the American legal scholar Laurence Tribe calls an oft told tale that remains awe inspiring Marshall had the Court rule against Marbury in a way that maneuvered Marbury s simple petition for a writ of mandamus into a case that presented a question that went to the heart of American constitutional law itself 45 The American political historian Robert G McCloskey described Marbury v Madison is a masterwork of indirection a brilliant example of Marshall s capacity to sidestep danger while seeming to court it The danger of a head on clash with the Jeffersonians was averted by the denial of jurisdiction but at the same time the declaration that the commission was illegally withheld scotched any impression that the Court condoned the administration s behavior These negative maneuvers were artful achievements in their own right But the touch of genius is evident when Marshall not content with having rescued a bad situation seizes the occasion to set forth the doctrine of judicial review It is easy for us to see in retrospect that the occasion was golden but only a judge of Marshall s discernment could have recognized it 46 Marshall had been looking for a case suitable for introducing judicial review and was eager to use the situation in Marbury to establish his claim 47 He introduced judicial review a move Jefferson decried but used it to strike down a provision of a law that he read to have expanded the Supreme Court s powers and thereby produced Jefferson s hoped for result of Marbury losing his case 48 Marshall seized the occasion to uphold the institution of judicial review but he did so in the course of reaching a judgment that his political opponents could neither defy nor protest 49 Although Jefferson criticized the Court s decision he accepted it and Marshall s opinion in Marbury articulate d a role for the federal courts that survives to this day 50 The American legal scholar Erwin Chemerinsky concludes The brilliance of Marshall s opinion cannot be overstated 48 Legal criticism The Supreme Court s historic decision in Marbury v Madison continues to be the subject of critical analysis and inquiry 51 In a 1955 Harvard Law Review article U S Supreme Court Justice Felix Frankfurter emphasized that one can criticize Marshall s opinion in Marbury without demeaning it The courage of Marbury v Madison is not minimized by suggesting that its reasoning is not impeccable and its conclusion however wise not inevitable 11 Criticisms of Marshall s opinion in Marbury usually fall into two general categories 51 First some criticize the way Marshall strove to reach the conclusion that the U S Supreme Court has constitutional authority over the other branches of the U S government Today American courts generally follow the principle of constitutional avoidance if a certain interpretation of a law raises constitutional problems they prefer to use alternative interpretations that avoid these problems as long as the alternative interpretations are plausible 52 In Marbury Marshall could have avoided the constitutional questions through different legal rulings If the Court had ruled that Marbury did not have a right to his commission until it was delivered or if he had ruled that refusals to honor political appointments could only be remedied through the political process and not the judicial process then it would have disposed of the case immediately and the Court would not have reached the case s constitutional issues 53 Marshall did not do so and many legal scholars have criticized him for it 52 Some scholars have responded that the constitutional avoidance principle did not exist in 1803 and that it is only a general guide for Court action not an ironclad rule 54 Alternatively it has also been argued that the claim that Marshall strove to create a controversy largely vanishes when the case is viewed from the legal perspective of the late 18th century when American colonies and states supreme courts were largely modeled on England s Court of King s Bench which inherently possessed mandamus powers 55 Second Marshall s arguments for the Court s authority are sometimes said to be mere series of assertions rather than substantive reasons logically laid out to support his position 56 Scholars generally agree that Marshall s series of assertions regarding the U S Constitution and the actions of the other branches of government do not inexorably lead to the conclusion that Marshall draws from them 56 Marshall s assertion of the American judiciary s authority to review executive branch actions was the most controversial issue when Marbury was first decided and several subsequent U S presidents have tried to dispute it to varying degrees 56 Additionally it is questionable whether Marshall should have participated in the adjudication of the Marbury case because he had played a role in the underlying dispute 16 Marshall was still the acting secretary of state when Adams nominated Marbury and the other Midnight Judges He had signed Marbury and the other appointees commissions and had been responsible for their delivery 16 This potential conflict of interest raises strong grounds for Marshall to have recused himself from the case 16 In hindsight the fact that Marshall did not recuse himself from Marbury is likely indicative of his eagerness to hear the case and use it to establish judicial review 53 LegacyMarbury v Madison is regarded as the single most important decision in American constitutional law 1 2 It established U S federal judges authority to review the constitutionality of Congress s legislative acts 1 and to this day the Supreme Court s power to review the constitutionality of American laws at both the federal and state level is generally rested upon the epic decision of Marbury v Madison 57 nbsp The subpoena duces tecum order to bring items as evidence issued to President Richard Nixon that was the center of the dispute in the 1974 judicial review case United States v Nixon Although the Court s opinion in Marbury established the power of judicial review in American federal law it did not invent or create it Some 18th century British jurists had argued that English courts had the power to circumscribe Parliament 58 The idea became widely accepted in Colonial America especially in Marshall Jefferson and Madison s native Virginia under the theory that in America only the people were sovereign not the government and so the courts should only implement legitimate laws 58 59 American courts independent power and duty to interpret the law was well established by the time of the Constitutional Convention in 1787 60 and Hamilton had defended the concept in Federalist No 78 In addition the 1796 Supreme Court case Hylton v United States considered whether a tax on carriages was constitutional though the Court ruled that the statute in question was in fact constitutional and did not actually exercise the power 61 Nevertheless Marshall s opinion in Marbury was the Supreme Court s first mention of and exercise of that power It made the practice more routine rather than exceptional and prepared the way for the Court s opinion in the 1819 case McCulloch v Maryland in which Marshall implied that the Supreme Court was the supreme interpreter of the U S Constitution 62 Marbury also established that the power of judicial review covers actions by the executive branch the President and his cabinet members However American courts power of judicial review over executive branch actions only extends to matters in which the executive has a legal duty to act or refrain from acting and does not extend to matters that are entirely within the President s discretion such as whether to veto a bill or whom to appoint to an office This power has been the basis of later important Supreme Court decisions In its 1974 decision United States v Nixon for example the Supreme Court held that President Richard Nixon had to comply with a subpoena to provide tapes of his conversations for use in a criminal trial related to the Watergate scandal which ultimately led to Nixon s resignation 63 64 Although it is a potent check on the other branches of the U S government federal courts rarely exercised the power of judicial review in early American history After deciding Marbury in 1803 the Supreme Court did not strike down another federal law until 1857 when it struck down the Missouri Compromise in its now infamous decision Dred Scott v Sandford a ruling that contributed to the outbreak of the American Civil War 65 ReferencesNotes The U S Constitution originally had new presidents take office in early March which left a four month gap between presidential inaugurations and the elections from the previous November This changed in 1933 with the adoption of the Twentieth Amendment which moved presidential inaugurations up to January 20 and thereby reduced the period between elections and inaugurations to about two and a half months In retaliation for Adams s appointment of the Midnight Judges Jefferson and the new Democratic Republican controlled Congress passed a bill that canceled the Supreme Court s 1802 term This prevented all the Court s pending cases including Marbury v Madison from being decided until 1803 Due to illnesses justices William Cushing and Alfred Moore did not participate in the Court s decision Citations a b c d Chemerinsky 2019 2 2 1 p 39 a b Chemerinsky 2021 1 3 p 12 a b McCloskey 2010 p 25 a b Chemerinsky 2019 2 2 1 pp 39 40 a b Pohlman 2005 p 21 a b Chemerinsky 2019 2 2 1 p 40 a b Chemerinsky 2019 2 2 1 pp 41 42 Chemerinsky 2019 2 2 1 p 44 a b c d e Epstein 2014 p 89 McCloskey 2010 pp 23 24 a b Frankfurter 1955 p 219 a b c d e Chemerinsky 2019 2 2 1 p 40 Brest et al 2018 p 115 Miller 2009 p 44 Paulsen et al 2013 p 141 a b c d e Chemerinsky 2019 2 2 1 p 41 Chemerinsky 2019 2 2 1 p 41 Chemerinsky 2019 2 2 1 p 42 Amar 1989 p 447 Amar 1987 pp 1485 86 Amar 1987 p 1486 Brest et al 2018 pp 124 25 Chemerinsky 2019 2 2 1 pp 42 43 Chemerinsky 2019 2 2 1 p 41 quoting Marbury 5 U S at 163 The Old Supreme Court Chamber 1810 1860 PDF Office of Senate Curator Report U S Senate Commission on Art June 24 2015 2014 02 10 S Pub 113 3 a b Chemerinsky 2019 2 2 1 p 43 Van Alstyne 1969 p 15 Nowak amp Rotunda 2012 1 3 p 50 a b c Chemerinsky 2019 2 2 1 p 44 Fallon et al 2015 pp 69 70 Currie 1997 p 53 Tribe 2000 p 207 Tribe 2000 pp 207 08 Prakash amp Yoo 2003 p 914 a b c Tribe 2000 p 210 Quoted in part in Chemerinsky 2019 2 2 1 p 45 and Tribe 2000 p 210 a b c Chemerinsky 2019 2 2 1 p 45 Quoted in Chemerinsky 2019 2 2 1 p 45 Nowak amp Rotunda 2012 1 3 pp 52 53 Tribe 2000 p 210 quoting Marbury 5 U S at 178 Quoted in Tribe 2000 p 210 a b Nowak amp Rotunda 2012 1 3 p 53 Chemerinsky 2019 2 2 1 p 46 a b c McCloskey 2010 p 26 Tribe 2000 p 208 note 5 McCloskey 2010 pp 25 27 Nowak amp Rotunda 2012 1 4 a p 55 a b Chemerinsky 2019 2 2 1 p 46 Fallon et al 2015 p 69 Chemerinsky 2019 2 2 1 pp 46 47 a b Nowak amp Rotunda 2012 1 4 a p 54 a b Brest et al 2018 pp 133 34 a b Nowak amp Rotunda 2012 1 4 a p 55 Nowak amp Rotunda 2012 1 4 a pp 55 56 Pfander 2001 pp 1518 19 a b c Nowak amp Rotunda 2012 1 4 a p 56 Van Alstyne 1969 p 1 a b Cornell amp Leonard 2008 p 540 Treanor 2005 p 556 Paulsen 2003 p 2707 Hylton v United States 3 U S 171 1796 Justia Law Retrieved March 2 2023 Cornell amp Leonard 2008 p 542 Tribe 2000 p 179 Chemerinsky 2021 1 3 p 14 Chemerinsky 2019 2 2 1 p 47 Works cited Amar Akhil Reed 1987 Of Sovereignty and Federalism Yale Law Journal 96 7 1425 1520 doi 10 2307 796493 JSTOR 796493 Amar Akhil Reed 1989 Marbury Section 13 and the Original Jurisdiction of the Supreme Court University of Chicago Law Review 56 2 443 99 doi 10 2307 1599844 JSTOR 1599844 Brest Paul Levinson Sanford Balkin Jack M Amar Akhil Reed Siegel Reva B 2018 Processes of Constitutional Decisionmaking Cases and Materials 7th ed New York Wolters Kluwer ISBN 978 1 4548 8749 2 Chemerinsky Erwin 2019 Constitutional Law Principles and Policies 6th ed New York Wolters Kluwer ISBN 978 1 4548 9574 9 Chemerinsky Erwin 2021 Federal Jurisdiction 8th ed New York Wolters Kluwer ISBN 978 1 5438 1371 5 Cornell Saul Leonard Gerald 2008 The Consolidation of the Early Federal System 1791 1812 In Grossberg Michael Tomlins Christopher eds The Cambridge History of Law in America Volume I Early America 1580 1815 Cambridge Cambridge University Press pp 518 54 ISBN 978 0 521 80305 2 Currie David P 1997 The Constitution in Congress The Federalist Period 1789 1801 Chicago University of Chicago Press ISBN 9780226131146 Epstein Richard A 2014 The Classical Liberal Constitution The Uncertain Quest for Limited Government Cambridge Massachusetts Harvard University Press ISBN 978 0 674 72489 1 Fallon Richard H Jr Manning John F Meltzer Daniel J Shapiro David L 2015 Hart and Wechsler s The Federal Courts and the Federal System 7th ed St Paul Minnesota Foundation Press ISBN 978 1 60930 427 0 Frankfurter Felix 1955 John Marshall and the Judicial Function Harvard Law Review 69 2 217 38 doi 10 2307 1337866 JSTOR 1337866 McCloskey Robert G 2010 The American Supreme Court Revised by Sanford Levinson 5th ed Chicago University of Chicago Press ISBN 978 0 226 55686 4 Miller Mark Carlton 2009 The View of the Courts from the Hill Interactions Between Congress and the Federal Judiciary Charlottesville University of Virginia Press ISBN 9780813928104 Nowak John E Rotunda Ronald D 2012 Treatise on Constitutional Law Substance and Procedure 5th ed Eagan Minnesota West OCLC 798148265 Paulsen Michael Stokes 2003 The Irrepressible Myth of Marbury Michigan Law Review 101 8 2706 43 doi 10 2307 3595393 JSTOR 3595393 Paulsen Michael Stokes Calabresi Steven G McConnell Michael W Bray Samuel 2013 The Constitution of the United States University Casebook Series 2nd ed St Paul Foundation Press ISBN 978 1 60930 271 9 Pfander James E 2001 Marbury Original Jurisdiction and the Supreme Court s Supervisory Powers Columbia Law Review 101 7 1515 1612 doi 10 2307 1123808 JSTOR 1123808 Pohlman H L 2005 Constitutional Debate in Action Governmental Powers Lanham Rowman amp Littlefield ISBN 978 0 7425 3593 0 Prakash Saikrishna Yoo John 2003 The Origins of Judicial Review University of Chicago Law Review 70 3 887 982 doi 10 2307 1600662 JSTOR 1600662 Treanor William Michael 2005 Judicial Review Before Marbury Stanford Law Review 58 2 455 562 JSTOR 40040272 Tribe Laurence H 2000 American Constitutional Law 3rd ed New York Foundation Press ISBN 978 1 56662 714 6 Van Alstyne William 1969 A Critical Guide to Marbury v Madison Duke Law Journal 18 1 1 49 Further readingNelson William E 2000 Marbury v Madison The Origins and Legacy of Judicial Review University Press of Kansas ISBN 978 0 7006 1062 4 one introduction to the case Clinton Robert Lowry 1991 Marbury v Madison and Judicial Review University Press of Kansas ISBN 978 0 7006 0517 0 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 H 1999 A People s History of the Supreme Court Penguin Books pp 104 107 ISBN 978 0 14 029201 5 Newmyer R Kent 2001 John Marshall and the Heroic Age of the Supreme Court Louisiana State University Press ISBN 978 0 8071 3249 4 James M O Fallon The Case of Benjamin More A Lost Episode in the Struggle over Repeal of the 1801 Judiciary Act 11 Law amp Hist Rev 43 1993 Tushnet Mark 2008 I dissent Great Opposing Opinions in Landmark Supreme Court Cases Boston Beacon Press pp 1 16 ISBN 978 0 8070 0036 6 Sloan Cliff McKean David 2009 The Great Decision Jefferson Adams Marshall and the Battle for the Supreme Court New York NY PublicAffairs ISBN 978 1 58648 426 2 Trachtman Michael G September 6 2016 The Supremes Greatest Hits 2nd Revised amp Updated Edition The 44 Supreme Court Cases That Most Directly Affect Your Life Third Revised ed Sterling ISBN 9781454920779 External links nbsp Wikisource has original text related to this article Marbury v Madison Text of Marbury v Madison 5 U S 1 Cranch 137 1803 is available from Cornell Findlaw Justia Library of Congress OpenJurist Primary Documents in American History Marbury v Madison from the Library of Congress John Marshall Marbury v Madison and Judicial Review How the Court Became Supreme Lesson plan for grades 9 12 from National Endowment for the Humanities 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 The short film Marbury v Madison 1977 is available for free viewing and download at the Internet Archive Supreme Court Landmark Case Marbury v Madison from C SPAN s Landmark Cases Historic Supreme Court Decisions nbsp Marbury v Madison public domain audiobook at LibriVox Retrieved from https en wikipedia org w index php title Marbury v Madison amp oldid 1194576701, wikipedia, wiki, book, books, library,

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