Marbury v. Madison

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.[15] Madison contended that the commissions were void if not delivered, but the Court disagreed, and said that the delivery of the commission was merely a custom, not an essential element of the commission itself.[6]

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.

— Marbury v. Madison, 5 U.S. at 158, 160.

Because Marbury's commission was valid, Marshall wrote, Madison's withholding of it was "violative of a vested legal right" on Marbury's part.[16]

Turning to the second question, the Court said that the laws clearly afforded Marbury a remedy. Marshall wrote that "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded." This rule derives from the traditional Roman legal maxim ubi jus, ibi remedium ("where there is a legal right, there is a legal remedy"), which was well established in the early Anglo-American common law.[17][18] In what the American legal scholar Akhil Amar called "one of the most important and inspiring passages" of the opinion,[19] 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.

— Marbury, 5 U.S. at 163.

Marshall then confirmed that a writ of mandamus—a type of court order that commands a government official to perform an act he or she is legally required to perform—was the proper remedy for Marbury's situation.[20] But this raised the issue of whether the Court, which was part of the judicial branch of the government, had the power to command Madison, who as Secretary of State was part of the executive branch of the government.[14] 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.[21] Borrowing a phrase John Adams had drafted in 1779 for the Massachusetts State Constitution, Marshall wrote: "The government of the United States has been emphatically termed a government of laws, and not of men."[22]

The U.S. Capitol – home of the U.S. Congress, and also where the U.S. Supreme Court convened from 1801 until the opening of the Supreme Court Building in 1935.[23]

This brought Marshall to the third question: Whether the Supreme Court had proper jurisdiction over the case, which would determine whether or not the Court had the power to issue the writ Marbury requested.[24] This issue depended entirely on how the Court interpreted the text of the Judiciary Act of 1789. Congress had passed this Act to establish the American federal court system, since the U.S. Constitution itself only mandates a Supreme Court and leaves the rest of the U.S. federal judicial power to reside in "such inferior Courts as the Congress may from time to time ordain and establish."[25] Section 13 of the Judiciary Act deals with the Supreme Court's original and appellate jurisdictions.

The Supreme Court shall have [original] jurisdiction over all cases of a civil nature where a state is a party, ... And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, ... And the trial of issues in fact ... shall be by jury. 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.

— Judiciary Act of 1789, Section 13 (emphasis added)

As Marshall explains in the opinion, under original jurisdiction, a court has the power to be the first to hear and decide a case; under appellate jurisdiction, a court has the power to hear a party's appeal from a lower court's decision and to "revise and correct" the previous decision.[8] Marbury had argued that the language of Section 13 of the Judiciary Act gave the Supreme Court the authority to issue writs of mandamus when hearing cases under original jurisdiction, not just appellate jurisdiction.[24] Although the language on the power to issue writs of mandamus appears with the sentence on appellate jurisdiction, rather than with the earlier sentences on original jurisdiction, a semicolon separates it from the specific clause on appellate jurisdiction. The section itself does not make clear whether the mandamus clause was intended to be read as part of the appellate sentence or on its own – in the opinion, Marshall quoted only the end of the section[26] – and the law's wording can plausibly be read either way.[27] In the end, Marshall agreed with Marbury, and interpreted section 13 of the Judiciary Act to authorize mandamus on original jurisdiction.[28][29]

But as Marshall then pointed out, this meant that the Judiciary Act clashes with Article III of the U.S. Constitution, which establishes the judicial branch of the U.S. government. Section 2 of Article III defines the nature of the Supreme Court's original and appellate jurisdiction:

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.

— U.S. Constitution, Article III, Section 2.

This section of the Constitution says that the Supreme Court only has original jurisdiction over cases where a U.S. State is a party to a lawsuit or where a lawsuit involves foreign dignitaries. Neither of these categories covered Marbury's lawsuit, which was a dispute over a writ of mandamus for his justice of the peace commission. So, according to the Constitution, the Court could only have heard Marbury's case while exercising appellate jurisdiction over an appeal, not under original jurisdiction over a lawsuit directly filed with it, as Marbury had done.[8][28]

But per Marshall's earlier interpretation, Section 13 of the Judiciary Act said that the Supreme Court did have original jurisdiction over mandamus cases like Marbury's. This meant that the Judiciary Act apparently took the Constitution's initial scope of the Supreme Court's original jurisdiction and expanded it to include cases involving 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 held that the relevant portion of Section 13 of the Judiciary Act violated Article III of the Constitution.[28]

Marshall's famous line from Marbury v. Madison on American federal courts' power to interpret the law, now inscribed on the wall of the U.S. Supreme Court Building in Washington, D.C.

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.[8][30] Marshall ruled that American federal courts have the power to refuse to give any effect to congressional legislation that is inconsistent with their interpretation of the Constitution—a move known as "striking down" laws.[31]

The U.S. Constitution does not explicitly give the American judiciary the power of judicial review.[32] Nevertheless, Marshall's opinion gives a number of reasons in support of the judiciary's possession of the power. First, Marshall reasoned that the written nature of the Constitution inherently established judicial review.[33][34] 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."[35] He continued: "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."[36]

Second, Marshall declared that deciding the constitutionality of the laws it applies is an inherent part of the American judiciary's role.[37] In what has become the most famous and 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.

— Marbury, 5 U.S. at 177.[38]

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.[34][37] He 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.[39] In his opinion, the dilemma was not difficult: "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, but, happily, not of an intricacy proportioned to its interest."[40] He 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.[8] Again borrowing from Federalist No. 78,[41] Marshall stated:

If two laws conflict with each other, the courts must decide on the operation of each. ... If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, [then] the constitution, and not such ordinary act, must govern the case to which they both apply.

— Marbury, 5 U.S. at 177–78.[42]

Third, Marshall stated that denying the supremacy of the Constitution over Congress's acts would mean that "courts must close their eyes on the constitution, and see only the law."[43] And this, he said, would make Congress omnipotent, since none of the laws it passed would ever be invalid:

This doctrine ... would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits.

— Marbury, 5 U.S. at 178.[44]

Marshall then gave several other reasons in favor of judicial review. He 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.[37] This, Marshall wrote, meant that the Founders were willing to have the American judiciary use and interpret the Constitution when judging cases. He also argued that federal judges' oaths of office—in which they swear to discharge their duties impartially and "agreeably to the Constitution and laws of the United States"—requires them to support the Constitution.[45] Lastly, Marshall argued that judicial review is implied in Article VI of the U.S. Constitution, since it declares that the supreme law of the United States is the Constitution and laws made "in Pursuance thereof", rather than the Constitution and all federal laws equally.[46][45]

Having given his list of reasons, Marshall concluded the Court's opinion by reaffirming the Court's ruling of the jurisdiction law's invalidity and, therefore, the Court's inability to issue Marbury's writ of mandamus.

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. The rule must be discharged.

— Marbury, 5 U.S. at 180.

Chief Justice John Marshall as painted by Henry Inman in 1832, after having presided over the American judiciary for over 30 years

Besides its inherent legal questions, the case of Marbury v. Madison also created a difficult political dilemma for Marshall and the Supreme Court itself.[47] If the Court had ruled in favor of Marbury and issued a writ of mandamus ordering Madison to deliver Marbury's commission, Jefferson and Madison would probably have simply ignored it, which would have made the Court look impotent and emphasized the "shakiness" of the judiciary.[47] On the other hand, a plain and simple ruling against Marbury would have given Jefferson and the Democratic-Republicans a clear political victory.[47]

Marshall avoided both problems and solved the dilemma. First, he ruled that Madison's withholding of Marbury's commission was illegal, which pleased the Federalists. However, he ultimately held that the Court could not give Marbury his requested writ of mandamus, which gave Jefferson and the Democratic-Republicans the result they desired. But, in what the American legal scholar Laurence Tribe described as "an oft-told tale ... [that] remains awe-inspiring", Marshall ruled against Marbury in a way that maneuvered Marbury's simple petition for a writ of mandamus into a case that presented a question that went to the heart of American constitutional law itself.[48] In his history of the Supreme Court, the American political historian Robert G. McCloskey wrote:

[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.

— Robert G. McCloskey, The American Supreme Court, pp. 25–27.[49]

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.[50] 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.[51] He "seized the occasion to uphold the institution of judicial review, but he did so in the course of reaching a judgment that his political opponents could neither defy nor protest."[52] 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."[53] The American legal scholar Erwin Chemerinsky concluded: "The brilliance of Marshall's opinion cannot be overstated."[51]

Given its preeminent position in American constitutional law, Marshall's opinion in Marbury v. Madison continues to be the subject of critical analysis and historical inquiry.[54] 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."[55]

Criticisms of Marshall's opinion in Marbury usually fall into two general categories.[54] 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. Today, American courts 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, so long as the alternative interpretations are still plausible.[56] 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, it would have ended the case immediately, and the Court would not have reached the case's constitutional issues.[57] Marshall did not do so, and many legal scholars have criticized him for it.[56] However, others have noted that the "constitutional avoidance" principle did not exist in 1803, and in any case is "only a general guide for Court action", not an "ironclad rule".[58] Alternatively, it has also been argued that the claim that Marshall "strove" to create a controversy largely vanishes when the case is viewed from the legal perspective of the late 18th century, when American colonies' and states' supreme courts were largely modeled on England's Court of King's Bench, which inherently possessed mandamus powers.[59]

Second, Marshall's arguments for the Court's authority are sometimes said to be mere "series of assertions", rather than substantive reasons logically laid out to support his position.[60] 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."[60] 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.[60]

Additionally, it is questionable whether Marshall should have participated in the Marbury case because of his participating role in the dispute.[14] 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.[14] This potential conflict of interest raises strong grounds for Marshall to have recused himself from the case.[14] 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.[57]