Ch. 2.1. Primary Source: Marbury v. Madison, SCOTUS, 1803
This landmark Supreme Court case originated over a controversy regarding Presidential appointments, but ultimately focused on the constitutionality of an act of Congress. In a unanimous decision, Chief Justice John Marshall asserted that the federal judiciary has the authority to exercise what has come to be known as judicial review–the power to strike down unconstitutional laws.
Marbury Caught in a Political Fight. This case arose because in 1801 James Madison, the new Secretary of State in the Jefferson administration, refused to deliver four justice of the peace commissions to the designated recipients, one of whom was William Marbury. He and the three others who were waiting for their commissions sued, so that they could begin their appointments as justices of the peace for Washington, D.C. They would be filling new offices that were created as part of the Judiciary Act of 1801, which was passed on Feb. 13, in the very last days of the outgoing Adams administration. This law expanded both federal jurisdiction (in the same way as the Jurisdiction and Removal Act of 1875 later would; see the above discussion of the Judiciary Act in ch. 1), as well as the size of the federal judiciary, which was increased by creating six new circuit courts, staffed by sixteen new judges. The Democratic-Republicans naturally saw this as a partisan move, calling the new Federalist judges “midnight judges.” They repealed the law in 1802.
The Adams administration had less than three weeks between the passage of the Judiciary Act of 1801 and March 4, when Thomas Jefferson’s administration was scheduled to take over. It worked hard to fill all the newly created judicial seats, but it got Senate approval for the last ones, forty-two new justices of the peace for Washington, D.C., only on March 3. Their commissions were signed and sealed, as required, by the outgoing Secretary of State, John Marshall. But on his very last day in office, Marshall failed to get the last four of these commissions delivered–thus leaving Marbury and three others empty-handed.
On taking up his new office, Madison refused to deliver these remaining commissions. Marbury and the other three hopeful justices petitioned the Supreme Court to order Madison to deliver their commissions, asking specifically that the court do so through a “writ of mandamus,” which is a type of court order. John Marshall, now the Chief Justice of the Supreme Court of the United States (= SCOTUS), was faced with a difficult political situation. He knew that if he directly ordered President Jefferson, through his Secretary of State Madison, to deliver the outstanding commissions, they would simply refuse to do so, and thus making such an order would only make the court look weak. But he still wanted to rebuke the Jefferson administration for not obeying the law in this case.
Marshall’s decision represents his ingenious solution to this political impasse: he rebuked the administration for the above illegality, but then said that the Supreme Court could not enforce compliance, because the Judiciary Act of 1789’s grant to it of the power to issue writs of mandamus was unconstitutional. This was only a minor provision of that law (in its section 13), and striking it down had little or no practical effect. But in taking this step, Marshall also explicitly asserted that the federal courts had the power to declare acts of Congress unconstitutional, i.e., what we call today the power of judicial review.
5 U.S. 137. SCOTUS, Feb. 24, 1803. Mr. Chief Justice MARSHALL delivered the opinion of the Court.
At the last term…, a rule was granted in this case requiring the Secretary of State to show cause why a mandamus should not issue directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia. No cause has been shown, and the present motion is for a mandamus…
In the order in which the Court has viewed this subject, the following questions have been considered and decided:
- Has the applicant a right to the commission he demands?
- If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
- If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of inquiry is:
- Has the applicant a right to the commission he demands?
His right originates in an act of Congress passed in February, 1801, concerning the District of Columbia… It appears… that, in compliance with this law, a commission for William Marbury as a justice of peace for the County of Washington was signed by John Adams, then President of the United States, after which the seal of the United States was affixed to it, but the commission has never reached the person for whom it was made out… To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right.
This brings us to the second inquiry, which is:
- If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
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… It is then the opinion of the Court… that, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace for the County of Washington in the District of Columbia…, and that the appointment conferred on him a legal right to the office for the space of five years.
It remains to be inquired whether… 3. he is entitled to the remedy for which he applies. This depends on the nature of the writ applied for, and the power of this court. The nature of the writ… This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only remains to be inquired, whether it can issue from this Court.
The act to establish the judicial courts of the United States [the Judiciary Act of 1789] authorizes the Supreme Court “to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.” …
In the distribution of this power, it is declared that “The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” …
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. … It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case…
The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.
The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States… It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable…
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution…, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty…
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.
Sources: for a brief summary, see the page on this case in Oyez. For the full text, see the pages on this case in Google Scholar and Justia. See also the abbreviated text in Teaching American History.org, under Marbury v. Madison (from which the above text is drawn). For a brief summary and links to many related documents, see also the Library of Congress’s website, “Primary Documents in American History,” under Marbury v. Madison.