case8 min read (1,530 words)

Marbury v. Madison (1803)

Citation: 5 U.S. (1 Cranch) 137 (1803) Court: Supreme Court of the United States Author: Chief Justice John Marshall, for a unanimous Court (6-0 with Justice Cushing not participating)

Parties

William Marbury — a Federalist appointed justice of the peace for the District of Columbia in the final days of John Adams's administration (one of the "midnight judges"). His commission was signed and sealed but never delivered.

James Madison — Secretary of State in the new Jefferson administration. He refused, on orders from Jefferson, to deliver Marbury's commission.

Facts

In the closing weeks of his single term, President John Adams packed the federal bench with Federalist appointees under the Judiciary Act of 1801. This included several dozen newly-created justice-of-the-peace positions in DC. Adams signed the commissions; Secretary of State John Marshall — the same Marshall who would decide the resulting case as Chief Justice — sealed them; but in the rush of the transition, some were not delivered before midnight on March 3, 1801, the last day of the Adams presidency.

The next day Thomas Jefferson took office. His Secretary of State, James Madison, found the undelivered commissions in the State Department and, on Jefferson's instructions, did not deliver them. Jefferson regarded the midnight appointments as an abusive political maneuver and took the position that an appointment was not complete until the commission was delivered.

William Marbury, denied his commission, sued in the Supreme Court, asking the Court to issue a writ of mandamus — a court order compelling a government official to perform a non-discretionary duty — directing Madison to hand over the commission. Marbury's suit invoked Section 13 of the Judiciary Act of 1789, which had granted the Supreme Court original jurisdiction (i.e., jurisdiction to hear a case as a trial court, not on appeal) over petitions for writs of mandamus.

Question presented

The case actually presented three questions, which Marshall took up in order:

  1. Did Marbury have a right to the commission?
  2. If so, did the law provide him a remedy?
  3. If so, was mandamus from the Supreme Court the correct remedy?

The third question is the one the case is remembered for. Answering it required the Court to decide whether Section 13 of the Judiciary Act of 1789 — the statute Marbury was relying on — was consistent with Article III of the Constitution, which defined the Supreme Court's original jurisdiction.

Holding

Marbury had a right to the commission, and the law entitled him to a remedy, but the Supreme Court could not provide that remedy because Section 13 of the Judiciary Act of 1789 was unconstitutional. Specifically, Section 13 attempted to expand the Court's original jurisdiction beyond the categories of cases enumerated in Article III, Section 2, clause 2 of the Constitution. Congress cannot do that by statute. A statute inconsistent with the Constitution is void, and it is "emphatically the province and duty of the judicial department to say what the law is."

Marbury did not get his commission. The Supreme Court, however, gained the power of judicial review — the power to declare acts of Congress unconstitutional — which it had not previously exercised.

Reasoning

Marshall's argument proceeds in three stages, each logically required before the next.

Stage one: the right. Marshall spent the first third of the opinion establishing that Marbury had a legal right to the commission. The appointment, Marshall held, was complete when the President signed it and the Secretary of State affixed the seal. Delivery was a ministerial act — required by law, but not discretionary. By 1803 standards this was not a controversial point; Marshall devoted roughly ten pages to proving it carefully because he wanted the ultimate holding to be unmistakable: Marbury was in the right, and Madison was in the wrong.

Stage two: the remedy. Having established that Marbury had a right, Marshall then argued — citing Blackstone — that where there is a right there must be a remedy; otherwise the right is no right. An officer of the executive branch who refuses to perform a ministerial duty required by law can be compelled to perform it by a writ of mandamus. This, again, was not novel. Common-law courts had been issuing mandamus against public officials for centuries.

Stage three: the jurisdiction. The third stage is where Marshall turned doctrine. Section 13 of the Judiciary Act of 1789 purported to give the Supreme Court original jurisdiction over mandamus petitions. But Article III, Section 2, clause 2 specified that the Supreme Court has original jurisdiction only in "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." In all other cases, the Court has only appellate jurisdiction — it hears cases that have come up on appeal from a lower court. Marbury's case did not fit the original-jurisdiction categories; it had not come up from a lower court; Section 13 was trying to route it to the Supreme Court as an original matter anyway.

Marshall held that the Constitution's specification of original jurisdiction is exclusive — if Article III lists the categories, Congress cannot add to them by statute. If Congress had the power to enlarge the Court's original jurisdiction, the constitutional specification would be a dead letter. Therefore Section 13, as applied to Marbury's case, was inconsistent with Article III and void.

That led to the key passage, at 5 U.S. at 177–178: "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. 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."

Significance

Judicial review — the power of courts to declare legislation unconstitutional — is not mentioned in the Constitution. Article III establishes "the judicial Power of the United States" without explaining what that power includes. Before Marbury, whether the power to strike down acts of Congress was included was an open question. Alexander Hamilton had argued in Federalist 78 that it was, but Hamilton was writing advocacy for ratification; the Supreme Court had not exercised the power in any significant case in the thirteen years since it was established.

Marbury settled the question, and it settled it in an unusually durable way. Politically, the case was a masterstroke: Marshall and his fellow Federalists wanted to expand federal judicial authority, but they also knew that if the Court ordered Madison to deliver the commission, Jefferson would simply ignore the order, destroying the Court's credibility. Marshall found a way to announce a far more consequential doctrine — the power to invalidate acts of Congress — while refusing Marbury any relief. Jefferson had no act to defy. The Court lost the battle and won the war.

Operationally, the doctrine announced in Marbury is the foundation of every subsequent American constitutional case. Brown v. Board of Education, Roe v. Wade, Bush v. Gore, Citizens United, Obergefell v. Hodges — every case in which a court has told a legislative or executive branch what it may not do — rests on Marbury. Without judicial review, the Constitution is only enforceable to the extent the elected branches choose to respect it.

The doctrine is not universal; most countries with written constitutions have taken different approaches. France, for most of its modern history, declined to let courts invalidate legislation. Britain still does not have American-style judicial review. The American version is distinctive, and it dates from March 24, 1803.

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