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 that they find to violate the Constitution of the United States. Decided in 1803, Marbury remains the single most important decision in American constitutional law. The Court's landmark decision established that the U.S. Constitution is actual law, not just a statement of political principles and ideals, and helped define the boundary between the constitutionally separate executive and judicial branches of the federal government.
|Marbury v. Madison|
|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)|
|Prior||Original action filed in U.S. Supreme Court; order to show cause why writ of mandamus should not issue, December 1801|
|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.|
|Majority||Marshall, joined by Paterson, Chase, Washington|
|Cushing and Moore took no part in the consideration or decision of the case.|
|U.S. Const. arts. I, III; Judiciary Act of 1789 § 13|
The case originated in early 1801 as part of the political and ideological rivalry between outgoing President John Adams and incoming President Thomas Jefferson. Adams had lost the U.S. presidential election of 1800 to Jefferson, and 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. The U.S. Senate quickly confirmed Adams's appointments, but upon Adams' departure and Jefferson's inauguration a few of the new judges' commissions still had not been delivered. Jefferson believed the undelivered commissions were void, and instructed his new Secretary of State, James Madison, not to deliver them. 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.
In an opinion written by Chief Justice John Marshall, the Court held firstly that Madison's refusal to deliver Marbury's commission was illegal, and secondly that it was normally proper for a court in such situations to order the government official in question to deliver the commission. But in Marbury's case, the Court did not order Madison to comply. Examining the section of the law Congress had passed that gave the Supreme Court jurisdiction over types of cases like Marbury's, Marshall found that it had expanded the definition of the Supreme Court's jurisdiction beyond what was originally set down in the U.S. Constitution. Marshall then struck down that section of the law, announcing that American courts have the power to invalidate laws that they find to violate the Constitution. Because this meant the Court had no jurisdiction over the case, it could not issue the writ that Marbury had requested.
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. Adams was aligned with the pro-business and pro-national government politics of Alexander Hamilton and the Federalist Party, while Jefferson and Burr were part of the opposing Democratic-Republican Party, which favored agriculture and decentralization. American public opinion had gradually turned against the Federalists in the months prior to the election, mainly due to their use of the controversial Alien and Sedition Acts, as well as growing tensions with Great Britain, with whom the Federalists favored close ties. Jefferson easily won the popular vote, but only narrowly defeated Adams in the Electoral College.
As the results of the election became clear in early 1801, Adams and the Federalists became determined to exercise their influence in the weeks remaining before Jefferson took office, and did all they could to fill federal offices with "anti-Jeffersonians" who were loyal to the Federalists. On March 2, 1801, just two days before his presidential term ended, Adams nominated nearly 60 Federalist supporters to circuit judge and justice of the peace positions the Federalist-controlled Congress had newly created. These last-minute nominees — whom Jefferson's supporters derisively called the "Midnight Judges" — included William Marbury, a prosperous businessman from Maryland. An ardent Federalist, Marbury was active in Maryland politics and had been a vigorous supporter of the Adams presidency.
The following day, March 3, the Senate approved Adams's nominations en masse. The appointees' commissions were immediately written out, then signed by Adams and sealed by his Secretary of State, John Marshall, who had been named the new Chief Justice of the Supreme Court in January but continued also serving as Secretary of State for the remainder of Adams's term. Marshall then dispatched his younger brother James Markham Marshall to deliver the commissions to the appointees. 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.
The day after, March 4, 1801, Thomas Jefferson was sworn in and became the third President of the United States. As soon as he was able, Jefferson instructed his new Secretary of State, James Madison, to withhold the undelivered appointments. In Jefferson's opinion, the commissions were void because they had not been delivered before Adams left office. Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed.
Over the next several months, Madison continually refused to deliver Marbury's commission to him. Finally, in December 1801, Marbury filed a lawsuit against Madison in the U.S. Supreme Court, asking the Court to issue a writ of mandamus forcing Madison to deliver his commission. This lawsuit resulted in the case of Marbury v. Madison.
The Court's opinion was written by the 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, was there a legal remedy for him to obtain it?
- Third, if there was such a remedy, could the Supreme Court legally issue it?
First, Marshall wrote that Marbury had a right to his commission because all appropriate procedures were followed: the commission had been properly signed and sealed. Madison contended that the commissions were void if not delivered, but the Court disagreed, saying that the delivery of the commission was merely a custom, not an essential element of the commission itself.
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 v. Madison, 5 U.S. at 158, 160.
Marbury's legal remedy
Turning to the second question, the Court said that the laws clearly afforded Marbury a remedy for Madison's unlawfully withholding his commission from him. 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 traditional Roman legal maxim ubi jus, ibi remedium ("where there is a legal right, there is a legal remedy"), which was well established in the early Anglo-American common law. In what the American legal scholar Akhil Amar called "one of the most important and inspiring passages" of the opinion, 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 a government official to perform an act he or she is legally required to perform — was the proper remedy for Marbury's situation. 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. 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. 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."
The Supreme Court's jurisdiction
This brought Marshall to the third question: Did the Supreme Court have proper jurisdiction over the case? This question would determine whether or not the Court had the power to issue the writ Marbury requested. The answer depended entirely on how the Court interpreted the text of the Judiciary Act of 1789. Congress had passed this Act to establish the American federal court system, since the U.S. Constitution itself only mandates a Supreme Court and leaves the rest of the U.S. federal judicial power to reside in "such inferior Courts as the Congress may from time to time ordain and establish." Section 13 of the Judiciary Act deals with the Supreme Court's original and appellate jurisdictions.
The Supreme Court shall have [original] jurisdiction over all cases of a civil nature where a state is a party, ... And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, ... And the trial of issues in fact ... shall be by jury. 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)
As Marshall explains in the opinion, under original jurisdiction a court has the power to be the first to hear and decide a case; under appellate jurisdiction a court has the power to hear a party's appeal from a lower court's decision and to "revise and correct" the previous decision. 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 original jurisdiction, not just appellate jurisdiction. Although the language on the power to issue writs of mandamus appears with the sentence on appellate jurisdiction, rather than with the earlier sentences on original jurisdiction, a semicolon separates it from the specific clause on appellate jurisdiction. The section itself does not make clear whether the mandamus clause was intended to be read as part of the appellate sentence or on its own — in the opinion, Marshall quoted only the end of the section — and the law's wording can plausibly be read either way.
The Court agreed with Marbury, and interpreted section 13 of the Judiciary Act to authorize mandamus on original jurisdiction. But as Marshall's opinion pointed out, this meant that the Judiciary Act clashed with Article III of the U.S. Constitution, which establishes the judicial branch of the U.S. government. 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).
This section of the Constitution 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. So, according to the Constitution, the Court could only have heard Marbury's case while exercising appellate jurisdiction over an appeal, not under original jurisdiction over a lawsuit directly filed with it, as Marbury had done.
But per Marshall's earlier interpretation, Section 13 of the Judiciary Act said that the Supreme Court did have original jurisdiction over mandamus cases like Marbury's. This meant that the Judiciary Act apparently took the Constitution's initial scope of the Supreme Court's original jurisdiction and expanded it to include cases involving writs of mandamus. Marshall ruled that Congress cannot increase the Supreme Court's original jurisdiction as it was set down in the Constitution, and therefore held that the relevant portion of Section 13 of the Judiciary Act violated Article III of the Constitution.
Judicial review and striking down the law
After ruling that it conflicted with the Constitution, the Court struck down the relevant portion of the Judiciary Act in the U.S. Supreme Court's first ever declaration of the power of judicial review. The Court ruled that American federal courts have the power to refuse to give any effect to congressional legislation that is inconsistent with their interpretation of the Constitution — a move known as "striking down" laws.
The U.S. Constitution does not explicitly give the American judiciary the power of judicial review. Nevertheless, Marshall's opinion gives a number of 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. In a line borrowed 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." He continued: "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."
Second, Marshall declared that deciding the constitutionality of the laws it applies is an inherent part of the American judiciary's role. In what has become the most famous and 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.
Marshall reasoned that the Constitution places limits on the American government's powers, and those limits would be meaningless unless they were subject to judicial review and enforcement. He reasoned that the Constitution's provisions limiting Congress's power — such as the export tax clause or the prohibitions on bills of attainder and ex post facto laws — meant that in some cases judges would be forced to choose between enforcing the Constitution or following Congress. In his opinion, the dilemma was not difficult: "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." He held "virtually as a matter of iron logic" that in the event of conflict between the Constitution and statutory laws passed by Congress, the constitutional law must be supreme. Again borrowing from Federalist No. 78, Marshall stated:
If two laws conflict with each other, the courts must decide on the operation of each. ... If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, [then] the constitution, and not such ordinary act, must govern the case to which they both apply.
Third, Marshall stated 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." And this, he said, would make Congress omnipotent, since none of the laws it passed would ever be invalid:
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.
Marshall then gave several other reasons in favor of judicial review. He argued 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. This, Marshall wrote, meant that the Founders were willing to have the American judiciary use and interpret the Constitution when judging cases. He also argued 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. Lastly, Marshall argued that judicial review is implied in Article VI of the U.S. Constitution, since it declares that the supreme law of the United States is the Constitution and laws made "in Pursuance thereof", rather than the Constitution and all federal laws equally.
Having given his list of reasons, Marshall concluded the Court's opinion by reaffirming the Court's ruling of the jurisdiction law's invalidity 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.
Besides its legal issues, the case of Marbury v. Madison also created a difficult political dilemma for John Marshall and the Supreme Court. If the Court had ruled in favor of Marbury and issued a writ of mandamus ordering Madison to deliver Marbury's commission, Jefferson and Madison would probably have simply ignored it, which would have made the Court look impotent and emphasized the "shakiness" of the judiciary. On the other hand, a plain and simple ruling against Marbury would have given Jefferson and the Democratic-Republicans a clear political victory.
Marshall avoided both problems and solved the dilemma. First, he ruled that Madison's withholding of Marbury's commission was illegal, which pleased the Federalists. But he also held that the Court could not grant Marbury his requested writ of mandamus, which gave Jefferson and the Democratic-Republicans the result they desired. However, in what legal scholar Laurence Tribe described as "an oft-told tale ... [that] remains awe-inspiring", Marshall ruled 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. Political historian Robert G. McCloskey wrote:
[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.
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. 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. 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." Though Jefferson criticized Marshall's opinion, he accepted it, and Marshall's decision in Marbury "articulate[d] a role for the federal courts that survives to this day." The legal scholar Erwin Chemerinsky concluded: "The brilliance of Marshall's opinion cannot be overstated."
Marshall's historic opinion in Marbury v. Madison continues to be the subject of critical analysis and inquiry. 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."
Criticisms of Marshall's opinion in Marbury usually fall into two general categories. 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, so long as the alternative interpretations are still plausible. In Marbury, Marshall could have avoided the constitutional questions through different legal rulings: for example, if he 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, it would have ended the case immediately, and the Court would not have reached the case's constitutional issues. Marshall did not do so and many legal scholars have criticized him for it. Some scholars have responded that the "constitutional avoidance" principle did not exist in 1803, and in any case is "only a general guide for Court action", not an "ironclad rule". 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.
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. It is generally agreed 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." 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.
Additionally, it is questionable whether Marshall should have participated in the Marbury case because of his participating role in the dispute. Marshall was still the acting Secretary of State when the nominations were made, and he himself had signed Marbury and the other men's commissions and had been responsible for their delivery. This potential conflict of interest raises strong grounds for Marshall to have recused himself from the case. 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.
Marbury v. Madison remains the single most important decision in American constitutional law. It established American judges' authority to review the constitutionality of Congress's legislative acts, 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."
Although the Court's opinion in Marbury established judicial review in American federal law, it did not create or invent it. Some 18th-century British jurists had argued that British courts had the power to circumscribe Parliament, and the principle became generally accepted in Colonial America — especially in Marshall's native Virginia — due to the idea that in America only the people were sovereign, rather than the government, and therefore that the courts should only implement legitimate laws. By the time of the Constitutional Convention in 1787, American courts' "independent power and duty to interpret the law" was well established, and Alexander Hamilton defended the concept of judicial review in Federalist No. 78. Nevertheless, Marshall's opinion in Marbury was the power's first announcement and exercise by the Supreme Court. 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.
Marbury also established that the power of judicial review covers actions by the executive branch — the President, his cabinet members, and the departments and agencies they head. 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 many subsequent important Supreme Court decisions in American history, such as the 1974 case United States v. Nixon, in which the 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, and which ultimately led to Nixon's resignation.
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 the Court 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.
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- 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.
- Smith, Jean Edward (1989). The Constitution And American Foreign Policy. St. Paul, MN: West. ISBN 978-0-314-42317-7.
- 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. (2016-09-06). 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.