Marbury v. Madison

Original document of Marbury v. Madison, showing damage from an 1898 Capitol fire.

Marbury v. Madison (1803) was the first U.S. Supreme Court decision declaring constitutional limits to its own court powers.

Progressives have declared Marbury to be the bedrock ruling upon which all judicial activism is built, but the text of the ruling proves just the opposite.^[1]

William Marbury

Outgoing President John Adams had issued appointments for what came to be known as "midnight judges",^[2] among them was a commission for William Marbury as justice of the peace. President Jefferson viewed these appoints to be void,^[3] so he instructed his new Secretary of State, James Madison, to refused delivery. Marbury then sued to obtain it. In Marbury v. Madison, the Supreme Court decided that it did not have the constitutional power to give Marbury the commission because it found the Judiciary Act of 1789 to be "repugnant to the constitution" and thus "void", adding "that courts, as well as other departments, are bound by that instrument."

Chief Justice John Marshall thereby refused to comply with The Judiciary Act, a result that pleased President Thomas Jefferson but using reasoning (declaring the Act to be "void") that was unacceptable to him. In finding the Court unauthorized to issue a writ of mandamus, Chief Justice Marshall stated that "if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional."

Judicial Review prior to Marbury

It is believed by many that the concept of judicial review originates with Bonham's Case, a decision written in England in 1610 by Edward Coke.^[4] In Bonham, Coke wrote that "in many cases, the common law will control Acts of Parliament". Bonham's Case is not mentioned in Marbury. In America prior to the convention, one notable case in the Commonwealth of Virginia that involved judicial review was Commonwealth v. Caton (1783).

During the creation of the Constitution, the concepts which cover judicial review were discussed several times.^[5] At least 12 delegates to the Constitutional Convention discussed judicial review of acts out of the legislature. Only two delegates expressed caution regarding the topic.^[6]

In Federalist No. 78, Alexander Hamilton argues in favor of judicial review.^[7] He wrote:

The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. 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 the 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.

Additionally, the case Hylton v. United States (1796) is one involving judicial review.^[8]

James Madison

The case was the first enactment of judicial review, and is often cited for stronger principles that the Supreme Court has the sole or final authority to interpret the Constitution. But the case only actually interpreted the Constitution to find limits on its own powers. It did not declare any act of Congress to be unconstitutional; it merely interpreted the Judiciary Act to be within constitutional bounds. For example, within the text of the court's opinion, John Marshall wrote that:

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.

The point that Marshall is making is that the Constitution, being superior to ordinary legislative acts, ordinary law, is changeable only by extraordinary means.

Progressives routinely cite Marbury as a foundational source for their claims of a Living and breathing constitution. In particular, their favorite line is "It is emphatically the province and duty of the Judicial Department to say what the law is."^[9][10] However, Marshall himself precluded such a notion by placing the Constitution above ordinary law.

For more detailed treatments, see Judicial supremacy and Judicial review.

Since the birth of Judicial Supremacy in 1958 in the court case Cooper v. Aaron, there has been some confusion as to how the Founding Fathers could have given such immense power to the court systems. In Cooper, the courts argued of Marbury that "This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution." The problem is that Marbury does no such thing, and neither did the Founders grant this much power to the court.^[11]

Plaque of Marbury v. Madison in the Supreme Court Building

The words as Marshall wrote them in Marbury make a very plain argument for Constitutional Supremacy, not judicial supremacy. The result is a confusion of terms. Judicial review is a negative power, which in its strongest form merely strikes down laws and forces legislatures to come back another way, or not to come back at all.

Judicial supremacy is the belief that the courts have a positive power, which grants judicial agents the power to legislate from the bench.

In short, judicial supremacy and judicial review are not the same thing.

• Unconstitutional
• Stuart v. Laird

• Marbury v. Madison, Full Text via Justia