The case resulted from a petition to the Court by William Marbury, who had been appointed as Justice of the Peace in the District of Columbia by President John Adams shortly before leaving office, but whose commission was not delivered as required by John Marshall, Adams's Secretary of State. When Thomas Jefferson assumed office, he ordered the new Secretary of State, James Madison, to withhold Marbury's and several other men's commissions. Marbury and three others petitioned the Court to force Madison to deliver the commission to Marbury. The case was ultimately unsuccessful for Marbury, who never became a Justice of the Peace in the District of Columbia. The impact of the decision was to create the strongest judiciary in the world. The Supreme Court became the final arbiter of what does and does not conform to the U.S. Constitution. The principle of judicial review is designed to remove the final decision on the Constitution from the other branches, which are elected by and beholding to the people, into the hands of judges who are removed from the pressures of popular opinion.

Background of the case

William Marbury

In the Presidential election of 1800, Thomas Jefferson defeated John Adams, becoming the third U.S. President. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, Adams and the Federalist-controlled U.S. Congress were still in power. Congress passed the Judiciary Act of 1801. This Act modified the famous Judiciary Act of 1789 by establishing 10 new District Courts, expanding the number of Circuit Courts from 3 to 6, adding additional judges to each Circuit, giving the President the authority to appoint Federal judges and justices of the peace, and reducing the number of Supreme Court justices from six to five, effective upon the next vacancy in the Court.[1]

On March 2, two days before his term was to end, Adams, in an attempt to stymie the incoming Republican party (Democratic-Republican Party) controlled Congress and Administration, appointed sixteen Federalists circuit judges and forty-two justices of the peace to positions created by the Judiciary Act of 1801. These appointees, the infamous "Midnight Judges," were all located in the Washington and Alexandria, Virginia area. One of these appointees was William Marbury, a native of Maryland and a prosperous financier. An ardent Federalist, Marbury was active in Maryland politics and a vigorous supporter of the Adams' presidency. He had been appointed to the position of justice of the peace in the District of Columbia. Justices of the peace, at the time, were judicial officers established by the Federalist controlled Congress with the creation of the Judiciary Act of 1801; the term for a justice of the peace was for five years, and they were "authorized to hold courts and cognizance of personal demands of the value of 20 dollars."[2]

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

While a majority of the commissions were delivered, it proved impossible for all of them to be delivered before Adams' term as president expired. As these appointments were routine in nature, Marshall assumed the new Secretary of State, James Madison, would see they were delivered, since "they had been properly submitted and approved, and were, therefore, legally valid appointments."[3] On March 4, 1801, Thomas Jefferson was sworn in as President. As soon as he was able, President Jefferson ordered Levi Lincoln, who was the new administration's Attorney General and acting Secretary of State until the arrival of James Madison, not to deliver the remaining appointments. In Jefferson's opinion, the undelivered commissions, not having been delivered on time, were void.[4]

The newly sworn-in Republican congress immediately set about voiding the Judiciary Act of 1801 with their own Judiciary Act of 1802 which reversed the act of 1801 so that the Judicial branch once again operated under the dictates of the original Judiciary Act of 1789. In addition, it replaced the Court's two annual sessions with one session to begin on the first Monday in February, and "canceled the Supreme Court term scheduled for June of that year [1802] … seeking to delay a ruling on the constitutionality of the repeal act until months after the new judicial system was in operation."[5]

Status of the judicial power before Marbury

The power of judicial review is often thought to have been created in Marbury but the general idea has ancient roots. The idea that courts could nullify statutes probably has its roots in Chief Justice Edward Coke's 1610 opinion in Dr. Bonham’s Case, 8 Co. Rep. 107a. That decision arose under a statute of Parliament enabling the London College of Physicians to levy fines against anyone who violated their rules. The College accused a doctor of practicing without a license and fined him accordingly. Coke found that their statutory powers violated "common right or reason" because "no person should be a judge in his own case."[6]

Sir Edward Coke.

The idea that courts could declare statutes void waxed and then waned in England, but it was well known in the American colonies and in the bars of young states, where Coke's books were very influential. The doctrine was specifically enshrined in some state constitutions, and by 1803 it had been employed in both State and Federal courts in actions dealing with state statutes.[7]

Some legal scholars argue that the concept of judicial review and the legal basis for it predate the case, and that Marbury merely formalized it. For example, Saikrishna Prakash and John Yoo point out, with respect to the ratification of the Constitution, that "no scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing."[8]

Still, nothing in the text of the Constitution explicitly authorized the power of judicial review, despite persistent fears voiced by Anti-federalists over the power of the new Federal court system.

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

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[9]

Relevant law

U.S. Const. art. III, § 2 Clause 2

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Judiciary Act of 1789, § 13

"The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts … and writs of mandamus … to any courts appointed, or persons holding office, under the authority of the United States."

The issue

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

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

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

Does Article III of the Constitution create a "floor" for original jurisdiction, which Congress can add to, or does it create an exhaustive list that Congress can't modify at all?

If Article III's original jurisdiction is an exhaustive list, but Congress tries to modify it anyway, who wins that conflict, Congress or the Constitution? And, more importantly, who is supposed to decide who wins? In his answer to this last question, Marshall formalizes the notion of judicial review.

The constitutional issue on which Marbury v. Madison turned was whether Congress could expand the original jurisdiction of the Supreme Court.

The decision

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

The Court rendered a unanimous (4-0) decision on February 24, 1803. (Due to illness, Justices William Cushing and Alfred Moore did not sit for oral argument or participate in the Court's decision.) Chief Justice Marshall wrote the opinion of the court. Marshall presented the case as raising three distinct questions:

Did Marbury have a right to the petition?

Do the laws of the country give Marbury a legal remedy?

Is asking the Supreme Court for a writ of mandamus the correct legal remedy?

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

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

It has become the tradition in U.S. judicial opinions that issues of jurisdiction are addressed first. If a court does not have the power to hear a case, it will not issue dicta. Chief Justice Marshall, however, did not address jurisdictional issues until addressing the first two questions presented above. Because of the canon of constitutional avoidance (that is, where a statute can fairly be interpreted so as to avoid a constitutional issue, it should be so interpreted), courts generally deal with the constitutional issues only if necessary. In this case, the jurisdictional issue was a constitutional one.[10]

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

This conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looked to the nature of the written Constitution—there would be no point of having a written Constitution if the courts could just ignore it. "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?"[11] Marshall also argued that the very nature of the judicial function requires courts to make this determination. Since it is a court's duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other, a court must decide which law applies.[12] Finally, Marshall pointed to the judge's oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution" before the "laws of the United States." Part of the core of this reasoning is found in the following statements from the decision:

It is emphatically the province and duty of the judicial department [the courts] to say what the law is. Those [judges] who apply the rule [of law] to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law [e.g., a statute or treaty] be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law [e.g., the statute or treaty]. This doctrine would subvert the very foundation of all written constitutions.[13]

Criticisms

A minority of legal scholars have raised questions about the logic Marshall used in determining the Judiciary Act unconstitutional, and hence the legitimacy of judicial review. They reason that Marshall selectively quoted the Judiciary Act, interpreting it to grant the Supreme Court the power to hear writs of mandamus on original jurisdiction.[14] These scholars argue that there is little connection between the notion of original jurisdiction and the Supreme Court, and note that the Act seems to affirm the Court's power to exercise only appellate jurisdiction.[15] Furthermore, that the Supreme Court should have been able to issue the writ on original jurisdiction based on the fact that Article III of the Constitution granted it the right to review on original jurisdiction "all cases affecting … public ministers and consuls," and that James Madison, Secretary of State at the time and defendant of the suit, should have fallen into that category of a "public minister [or] consul."[16]

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

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

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