CRS Annotated Constitution

Article III -- Table of ContentsPrev | Next

Marbury v. Madison.—Chief Justice Marshall’s argument for judicial review of congressional acts in Marbury v. Madison584 had been largely anticipated by Hamilton.585 For example, he had written: “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 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.”586

At the time of the change of Administration from Adams to Jefferson, several commissions of appointment to office had been signed but not delivered and were withheld on Jefferson’s express instruction. Marbury sought to compel the delivery of his commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction against Secretary of State Madison. Jurisdiction was based on Sec. 13 of the Judiciary Act of 1789,587 which Marbury, and ultimately the Supreme Court, interpreted to authorize the Court to issue writs of mandamus in suits in its original jurisdiction.588 Though deciding all the other issues in Marbury’s favor, the Chief Justice wound up concluding that the Sec. 13 authorization was an attempt by Congress to expand the Court’s original jurisdiction beyond the constitutional prescription and was therefore void.589


“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;” Marshall began his discussion of this final phase of the case, “but, happily, not of an intricacy proportioned to its interest.”590 First, certain fundamental principles warranting judicial review were noticed. The people had come together to establish a government. They provided for its organization and assigned to its various departments their powers and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose “if these limits may, at any time, be passed by those intended to be restrained.” Because the Constitution is “a superior paramount law,” it is unchangeable by ordinary legislative means and “a legislative act contrary to the constitution is not law.”591 “If an act of the legislature, repugnant to the constitution, is void, does it notwithstanding its invalidity, bind the courts, and oblige them to give it effect?” The answer, thought the Chief Justice, was obvious. “It is emphatically the province and duty of the judicial department to say what the law is. . . . 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; 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.”592 To declare otherwise, Chief Justice Marshall said, would be to permit a legislative body to pass at pleasure the limits imposed on its powers by the Constitution.593

Turning, then, from the philosophical justification for judicial review as arising from the very concept of a written constitution, the Chief Justice turned to specific clauses of the Constitution. The judicial power, he observed, was extended to “all cases arising[p.703]under the constitution.”594 It was “too extravagant to be maintained that the Framers had intended that a case arising under the constitution should be decided without examining the instrument under which it arises.”595 Suppose, he said, that Congress laid a duty on an article exported from a State or passed a bill of attainder or an ex post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated them to support the Constitution and to enforce such laws would violate the oath.596 Finally, the Chief Justice noticed the supremacy clause, which gave the Constitution precedence over laws and treaties and provided that only laws “which shall be made in pursuance of the constitution” are to be the supreme laws of the land.597

The decision in Marbury v. Madison has never been disturbed, although it has been criticized and has had opponents throughout our history. It not only carried the day in the federal courts, but from its announcement judicial review by state courts of local legislation under local constitutions made rapid progress and was securely established in all States by 1850.598

Judicial Review and National Supremacy.—Even many persons who have criticized the concept of judicial review of congressional acts by the federal courts have thought that review of state acts under federal constitutional standards is soundly based in the supremacy clause, which makes the Constitution and constitutional laws and treaties the supreme law of the land,599 to effectuate which Congress enacted the famous Sec. 25 of the Judiciary Act of 1789.600 Five years before Marbury v. Madison, the Court[p.704]held invalid a state law as conflicting with the terms of a treaty,601 and seven years after Chief Justice Marshall’s opinion a state law was voided as conflicting with the Constitution.602

Virginia provided a states’ rights challenge to a broad reading of the supremacy clause and to the validity of Sec. 25 in Martin v. Hunter’s Lessee603 and in Cohens v. Virginia.604 In both cases, it was argued that while the courts of Virginia were constitutionally obliged to prefer “the supreme law of the land,” as set out in the supremacy clause, over conflicting state constitutional provisions and laws, it was only by their own interpretation of the supreme law that they as courts of a sovereign State were bound. Furthermore, it was contended that cases did not “arise” under the Constitution unless they were brought in the first instance by someone claiming such a right, from which it followed that “the judicial power of the United States” did not “extend” to such cases unless they were brought in the first instance in the courts of the United States. But answered Chief Justice Marshall: “A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either.”605 Passing on to the power of the Supreme Court to review such decisions of the state courts, he said: “Let the nature and objects of our Union be considered: let the great fundamental principles on which the fabric stands, be examined: and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the Court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction.”606


584 1 Cr. (5 U.S.) 137 (1803).
585 The Federalist, Nos. 78 and 81 (J. Cooke ed. 1961), 521– 530, 541–552.
586 Id., No. 78, at 525.
587 1 Stat. 73, 80 .
588 The section first denominated the original jurisdiction of the Court and then described the Court’s appellate jurisdiction. Following and indeed attached to the sentence on appellate jurisdiction, being separated by a semi–colon, is the language saying “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.” The Chief Justice could easily have interpreted the authority to have been granted only in cases under appellate jurisdiction or as authority conferred in cases under both original and appellate jurisdiction when the cases are otherwise appropriate for one jurisdiction or the other. Textually, the section does not compel a reading that Congress was conferring on the Court an original jurisdiction to issue writs of mandamus per se.
589 Marbury v. Madison, 1 Cr. (5 U.S.) 137, 173–180 (1803). For a classic treatment of Marbury, see Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L. J. 1.
590 Id., 1 Cr. (5 U.S.), 176. One critic has written that by this question Marshall “had already begged the question–in–chief, which was not whether an act repugnant to the Constitution could stand, but who should be empowered to decide that the act is repugnant.” A Bickel, op. cit., n. 576, 3. Marshall, however, soon reached this question, though more by way of assertion than argument. Id., 1 Cr. (5 U.S.), 177– 178.
591 Id., 176–177.
592 Id., 177–178.
593 Id., 178.
594 Ibid. The reference is, of course, to the first part of clause 1, Sec. 2, Art. III: “The judicial power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . .” Compare A. Bickel, op. cit., n. 576, 5–6, with R. Berger, op. cit., n. 576, 189–222.
595 Id., 1 Cr. (5 U.S.), 179.
596 Id., 179–180. The oath provision is contained in Art. VI, cl. 3. Compare A. Bickel, op. cit., n. 576, 7–8, with R. Berger, op. cit., n. 576, 237–244.
597 Id., 1 Cr. (5 U.S.), 180. Compare A. Bickel, op. cit., n. 576, 8–12, with R. Berger, op. cit., n. 576, 223–284.
598 E. Corwin, The Doctrine of Judicial Review (Princeton: 1914), 75–78; Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitution Theory in the State, 1790–1860, 120 Pa. L. Rev.1166 (1972).
599 2. W. Crosskey, op. cit., n. 576, 989. See the famous remark of Holmes: “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.” O. Holmes, Collected Legal Papers (Boston: 1921), 295–296.
600 1 Stat. 73, 85 , quoted supra, n. 582.
601 Ware v. Hylton, 3 Dall. (3 U.S.) 190 (1796).
602 Fletcher v. Peck, 6 Cr. (10 U.S.) 87 (1810). The case came to the Court by appeal from a circuit court and not from a state court under Sec. 25. Famous early cases coming to the Court under Sec. 25 in which state laws were voided included Sturges v. Crowninshield, 4 Wheat. (17 U.S.) 122 (1819); McCulloch v. Maryland, 4 Wheat, (17 U.S.) 316 (1819).
603 1 Wheat (14 U.S.) 304 (1816).
604 6 Wheat, (19 U.S.) 264 (1821).
605 Id., 379.
606 Id., 422–423. Justice Story traversed much of the same ground in Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304 (1816). In Ableman v. Booth, 21 How. (62 U.S.) 506 (1859), the Wisconsin Supreme Court had declared an act of Congress invalid and disregarded a writ of error from the Supreme Court, raising again the Virginia arguments. Chief Justice Taney emphatically rebuked the assertions on grounds both of dual sovereignty and national supremacy. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the States from national encroachments, and to make the Constitution and laws of the United States uniform all combine to enhance the federal judicial power to a degree perhaps beyond that envisaged even by Story and Marshall. As late as Williams v. Bruffy, 102 U.S. 248 (1880), the concepts were again thrashed out with the refusal of a Virginia court to enforce a mandate of the Supreme Court. And see Cooper v. Aaron, 358 U.S. 1 (1958).
Article III -- Table of ContentsPrev | Next