Marbury v. Madison.

Chief Justice Marshall’s argument for judicial review of congressional acts in Marbury v. Madison734 had been largely anticipated by Hamilton.735 Hamilton had written, for example: “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.”736

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 § 13 of the Judiciary Act of 1789,737 which Marbury, and ultimately the Supreme Court, interpreted to authorize the Court to issue writs of mandamus in suits in its original jurisdiction.738 Though deciding all the other issues in Marbury’s favor, the Chief Justice wound up concluding that the § 13 authorization was an attempt by Congress to expand the Court’s original jurisdiction beyond the constitutional prescription and was therefore void.739

“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.”740 First, Marshall recognized certain fundamental principles. 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, unchangeable by ordinary means, . . . a legislative act contrary to the constitution is not law.”741 “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. 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.”742

“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.”743

“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.”744 To declare otherwise, Chief Justice Marshall said, would be to permit the legislature to “pass[ ] at pleasure” the limits imposed on its powers by the Constitution.745

The Chief Justice then turned from the philosophical justification for judicial review as arising from the very concept of a written constitution, to specific clauses of the Constitution. The judicial power, he observed, was extended to “all cases arising under the constitution.”746 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.”747 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.748 Finally, the Chief Justice noted that the Supremacy Clause (Art. VI, cl. 2) gave the Constitution precedence over laws and treaties, providing that only laws “which shall be made in pursuance of the constitution” shall be the supreme law of the land.749

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 1850.750


5 U.S. (1 Cr.) 137 (1803). back
THE FEDERALIST, Nos. 78 and 81 (J. Cooke ed. 1961), 521–530, 541–552. back
Id., No. at 78, 525. back
1 Stat. 73, 80. back
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 semicolon, 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. back
Marbury v. Madison, 5 U.S. (1 Cr.) 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. back
5 U.S. at 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, supra at 3. Marshall, however, soon reached this question, though more by way of assertion than argument. 5 U.S. (1 Cr.) at 177–78. back
5 U.S. at 176–77. back
5 U.S. at 177. back
5 U.S. at 178. back
5 U.S. at 177–78. back
5 U.S. at 178. back
5 U.S. at 178. The reference is, of course, to the first part of clause 1, § 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, supra at 5–6, with R. Berger, supra at 189–222. back
5 U.S. at 179. back
5 U.S. at 179–80. The oath provision is contained in Art. VI, cl. 3. Compare A. Bickel, supra at 7–8, with R. Berger, supra at 237–244. back
5 U.S. at 180. Compare A. Bickel, supra at 8–12, with R. Berger, supra at 223–284. back
E. CORWIN, THE DOCTRINE OF JUDICIAL REVIEW 75–78 (1914); Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitution Theory in the State, 1790–1860, 120 U. P1790–1860, 120 U. PA. L. REV. 1166 (1972). back