Reviewing Marbury v. Madison

By Silence Dogood

It is quite easy, in this day and age, to take for granted some of the foundational principles of our system of government. After nearly 250 years, we often brush over groundbreaking concepts simply because we have grown so accustomed to them.

One such core tenet celebrated its 223rd anniversary last week: judicial review.

When the Constitution was ratified in 1789, Article III created the Supreme Court and vested in it “the judicial Power of the United States.” It is the shortest and vaguest of the three constitutional articles establishing the branches of government. Beyond creating the courts and granting judges lifetime tenure, it says remarkably little about what, exactly, the judiciary is supposed to do.

That changed under the leadership of John Marshall, the fourth Chief Justice of the United States.

Simply put, judicial review is the principle that the Supreme Court can strike down a law passed by Congress if it violates the Constitution. Today, that sounds obvious. Some might assume that is the Court’s central purpose. But that authority was not firmly established until 1803, in the landmark decision of Marbury v. Madison.

To understand the case, we must return to a topic we discussed just a few weeks ago: the bitter and dramatic United States presidential election of 1800.

In that contest, Thomas Jefferson defeated John Adams to become the third President of the United States. Jefferson was set to be sworn in on March 4, 1801. On March 2 — just two days before leaving office — Adams nominated dozens of Federalists to newly created judicial positions. The Senate, still controlled by lame-duck Federalists, quickly confirmed them.

Jefferson and his Democratic-Republicans mockingly called these last-minute appointments the “Midnight Judges.”

Adams signed their commissions and had them dispatched. But several were not delivered before Jefferson took office. One of those appointees was Maryland businessman William Marbury.

When Jefferson assumed the presidency, he ordered his new Secretary of State, James Madison, to withhold the undelivered commissions. Marbury, believing he was legally entitled to his position because it had been properly signed and sealed, petitioned the Supreme Court to compel Madison to deliver it. He argued that by issuing a writ of mandamus — an order compelling the Secretary of State to comply — the Court could force delivery of the commission.

Here is where the story becomes particularly interesting.

Chief Justice Marshall had previously served as Secretary of State for Adams. Although appointed to the Court in January 1801, he continued holding both positions until the new administration took office. In fact, it had been Marshall’s responsibility to seal and oversee delivery of the very commissions now in dispute.

In modern times, this would almost certainly have been grounds for recusal. These were not modern times.

The case before the Court was filled with political landmines. If the Court ordered Madison to deliver the commission, President Jefferson might simply ignore the ruling, exposing the Court’s weakness. If the Court sided with Jefferson outright, it would appear subordinate to the executive branch.

With all of this in mind, Marshall delivered an opinion that can only be described as a work of judicial art.

First, the Court ruled that Marbury was indeed entitled to his commission. The appointment had been properly signed and sealed. Delivery, the Court reasoned, was merely a formality. Madison’s refusal to deliver it was therefore unlawful.

Next, the Court declared that where there is a legal right, there must be a legal remedy. The appropriate remedy, just as Marbury argued, was the writ of mandamus he had requested.

Here, however, is where Marshall made his move.

The authority to issue such a writ came from a section of the Judiciary Act of 1789, the law passed by Congress that had originally organized the federal court system. That section appeared to grant the Supreme Court the power to issue writs of mandamus in cases like this.

Marshall concluded that this provision expanded the Court’s original jurisdiction beyond what was specifically enumerated in Article III of the Constitution. Congress, he reasoned, does not possess the authority to alter the Constitution by ordinary legislation. Therefore, to the extent that the Judiciary Act attempted to expand the Court’s power, it was unconstitutional.

And because that section was unconstitutional, the Court could not issue the writ.

Marbury had a right. Madison had violated that right. But the Court lacked the constitutional authority to provide the remedy.

In a single opinion, Marshall rebuked Jefferson’s administration, avoided a confrontation the Court might lose, and asserted the Court’s power to declare acts of Congress unconstitutional — thereby establishing judicial review. In essence, Marshall surrendered immediate power in order to secure far greater authority for the Court in the long term.

“It is emphatically the province and duty of the judicial department to say what the law is,” the Chief Justice wrote.

While it was a political defeat for Marbury, it was a constitutional triumph for the Supreme Court.

In reality, Marshall was not the first to articulate the concept of judicial review. The idea had appeared in legal theory, in state court decisions, and even in Federalist No. 78, authored by Alexander Hamilton. The Supreme Court had also previously reviewed legislation that it held to be constitutional. But Marshall was the first to put the doctrine into actual practice, and he did so masterfully.

Thanks to Marshall’s opinion in Marbury v. Madison, the Supreme Court truly became a co-equal branch of government alongside the Legislative and Executive branches.

The doctrine was not immediately wielded as aggressively as it would be in later centuries. The next major instance of the Court striking down federal legislation would come in 1857 in Dred Scott v. Sandford — a decision widely regarded as one of the most disastrous in the Court’s history and a precipitating event of the Civil War.

It would not be until the 20th century that judicial review fully matured into the force we recognize today.

It is easy now to take for granted the immense power the Supreme Court wields. But were it not for the political and judicial genius of Chief Justice Marshall, this American experiment might have unfolded quite differently.

Two hundred twenty-three years later, we are still living within the constitutional framework he helped define.