Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803), was a 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,
statutes, and some government actions that
contravene the U.S. Constitution.
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 American form
of government.
The case ultimately originated from the political
and ideological rivalry between outgoing U.S.
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 men who supported
him and the Federalist Party 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 Jefferson's inauguration
two days later, a few of the new judges' commissions
still had not been delivered.
Jefferson believed the commissions were void
because they had not been delivered in time,
and instructed his new Secretary of State,
James Madison, not to deliver them.
One of the men whose commissions had not been
delivered in time was 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.
However, in Marbury's case, the Court did
not order Madison to comply.
Examining 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 the law, announcing
that American courts have the power to invalidate
laws that they found 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.
== Background ==
In the fiercely contested U.S. presidential
election of 1800, the three major candidates
were Thomas Jefferson, Aaron Burr, and John
Adams, who was the incumbent U.S. president.
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 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 referred to as "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 United States in January but continued
also serving as Secretary of State until Jefferson
took office.
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 3rd 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 in
time.
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 suit
against Madison in the U.S. Supreme Court,
asking the Court to issue a writ of mandamus
forcing Madison to deliver Marbury's commission.
This lawsuit resulted in the case of Marbury
v. Madison.
== Decision ==
On February 24, 1803, the Court rendered a
unanimous (4–0) decision against Marbury.
The Court's opinion was written by the Chief
Justice, John Marshall.
Marshall structured the Court's opinion around
a series of three questions that Marshall
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, what was
it, and could the Supreme Court legally issue
it?
=== Marbury's commission and legal remedy
===
The Court quickly answered the first two questions
affirmatively.
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; the Court disagreed,
and said 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.
Because Marbury's commission was valid, Marshall
wrote, Madison's withholding of it was "violative
of a vested legal right" on Marbury's part.Turning
to the second question, the Court said that
the laws clearly afforded Marbury a remedy.
Marshall built upon the traditional Roman
legal maxim ubi jus, ibi remedium ("where
there is a legal right, there is also a legal
remedy"), which was well established in the
early Anglo-American common law.
In "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."
The specific issue, however, was whether the
courts—part of the judicial branch of the
government—could give Marbury a remedy against
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.
In a now well-known line of the opinion, Marshall
wrote: "The government of the United States
has been emphatically termed a government
of laws, and not of men."
=== 
Jurisdiction ===
After concluding that Marbury had a right
to his commission and that a legal remedy
existed to provide it to him, Marshall then
confirmed that a writ of mandamus—a type
of court order that commands a government
official to perform an act they are legally
required to perform—was the proper remedy
for Marbury's situation.
This brought Marshall to the most important
issue of the opinion: the propriety of the
Supreme Court's jurisdiction over the matter,
which would determine whether or not the Court
had the power to issue the writ Marbury requested.
This issue depended entirely on how the Court
interpreted the section of the Judiciary Act
of 1789 that regulated the Supreme Court's
writs of mandamus.
The Supreme Court shall have exclusive [original]
jurisdiction over all cases of a civil nature
where [States are a party, between ambassadors,
etc.]
[...] 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.
Marbury argued that the Judiciary Act gave
the Supreme Court the authority to issue writs
of mandamus when hearing cases under original
jurisdiction, not appellate jurisdiction.
Marshall's discussion of this issue first
explains the difference between original jurisdiction,
in which a court has the power to be the first
to hear and decide a case, and appellate jurisdiction,
in which a party to a decision appeals to
a higher court which has the power to review
the previous decision and then either affirm
or overturn it.
Though the clause on writs of mandamus appears
in the section on appellate jurisdiction,
Marshall quoted only that section in the opinion,
omitting the section on original jurisdiction
entirely.
The Court agreed with Marbury, and interpreted
the relevant section of the Judiciary Act
to authorize mandamus on original jurisdiction.However,
Marshall then noted that this authorization
clashed with Article III of the U.S. Constitution,
which establishes the judicial branch of the
U.S. government.
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.
This section of Article III of the Constitution
establishes that the Supreme Court only has
original jurisdiction over cases where a U.S.
State is a party to the lawsuit, or where
the lawsuit involves foreign dignitaries.
Neither of these categories covered Marbury's
justice of the peace commission, and so, according
to the Constitution, the Court could only
have heard Marbury's case while exercising
appellate jurisdiction.
However, Marshall had interpreted the Judicial
Act to have given the Court original jurisdiction
over the matter: this meant that the Judicial
Act apparently took the initial scope of the
Supreme Court's original jurisdiction—which
was limited to cases either directly involving
States or involving foreign dignitaries—and
expanded it to include issuing 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 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,
Marshall 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.
Marshall ruled that American federal courts
have the power to refuse to give any effect
to congressional legislation that is inconsistent
with the Supreme Court's interpretation of
the Constitution.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 this power.
Marshall stated that deciding the constitutionality
of the laws it applies is an inherent part
of the American judiciary's role.
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.
In what has become the 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."Marshall
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.
Marshall 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.
He further 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."
In another argument borrowed from Federalist
No. 78, Marshall stated that "a law repugnant
to the Constitution is void", and that the
judiciary had no choice but to follow the
Constitution.Marshall also 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.
Lastly, Marshall argued that judicial review
is implied in Article VI of the Constitution,
since it declares the supreme law of the United
States to be not the Constitution and the
laws of the United States in general, but
rather the Constitution and laws made "in
Pursuance thereof".
== Analysis ==
Besides its inherent legal questions, the
case of Marbury v. Madison also created a
difficult political dilemma for Marshall and
the rest of the Supreme Court.
If the Court ruled in favor of Marbury and
issued a writ of mandamus ordering Madison
to deliver the commission, Jefferson and Madison
would probably have simply ignored the order,
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 solved both problems.
First, he ruled that Madison's withholding
of Marbury's commission was illegal, which
gave the Federalists some comfort; but then,
he said the Court could not give Marbury his
requested writ of mandamus, giving Jefferson
and the Democratic-Republicans the result
they desired.
Then, in what the American constitutional
law scholar Laurence Tribe described as an
"awe-inspiring story", Marshall maneuvered
Marbury's simple petition for a writ of mandamus
into a question that went to heart of American
constitutional law itself.Marshall had been
looking for a case that was 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.
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."
[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.
In the words of the American legal scholar
Erwin Chemerinsky: "The brilliance of Marshall's
opinion cannot be overstated."
=== 
Criticism ===
Given its preeminent position in American
constitutional law, Chief Justice John Marshall's
opinion in Marbury v. Madison continues to
be the subject of critical analysis and historical
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.
For example, American courts now 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.
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, the
Court would not have reached the case's constitutional
issues.
Marshall did not do so, and many scholars
have criticized him for it.
However, other scholars have noted that the
"constitutional avoidance" principle did not
exist in 1803, and in any case is "only a
general guide for Court action and not an
ironclad precept."Second, Marshall's arguments
for the Court's authority are sometimes said
to be mere "assertions of authority", 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.
However, the power of judicial review is now
widely accepted and firmly established in
American law.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.
== Impact ==
Marbury v. Madison remains the single most
important decision in American constitutional
law.
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."
However, Marshall's decision did not invent
judicial review: 18th-century British jurists
had debated whether courts could 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.
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
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 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 was required 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,
the power of judicial review was rarely exercised
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 the now-infamous
case of Dred Scott v. Sandford, a ruling that
contributed to the outbreak of the American
Civil War.
== See also ==
Australian Communist Party v Commonwealth
Judicial review in the United States
Hylton v. United States
Calder v. Bull
Stuart v. Laird (1803)
United States v. More (1805)
== Notes
