MARBURY V.

MADISON petitioned the Supreme Court to force the new Secretary of State, James
Supreme Court of the United States Madison, to deliver the documents. The Court, with John Marshall as Chief
Argued February 11, 1803 Justice, found firstly that Madison's refusal to deliver the commission was both
Decided February 24, 1803 illegal and correctible. Nonetheless, the Court stopped short of ordering Madison
Full case name William Marbury v. James Madison, Secretary of State of the (by writ of mandamus) to hand over Marbury's commission, instead holding that
United States the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim
Citations 5 U.S. 137, 1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352 to the Supreme Court was itself unconstitutional, since it purported to extend the
Court's original jurisdiction beyond that which Article III established. The petition
Prior history was therefore denied.
Original action filed in U.S. Supreme Court; order to show cause why writ of
mandamus should not issue, December 1801 Background of the case
Subsequent history
William Marbury
Holding In the presidential election of 1800, Democratic-Republican Thomas Jefferson
Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports defeated Federalist John Adams, becoming the third President of the United
to enlarge the original jurisdiction of the Supreme Court beyond that permitted by States. Although the election was decided on February 17, 1801, Jefferson did
the Constitution. Congress cannot pass laws that are contrary to the Constitution, not take office until March 4, 1801. Until that time, outgoing president Adams and
and it is the role of the Judicial system to interpret what the Constitution permits. the Federalist-controlled 6th Congress were still in power. During this lame-duck
session, Congress passed the Judiciary Act of 1801. This Act modified the
Court Membership Judiciary Act of 1789 in establishing ten new district courts, expanding the
Chief Justice number of circuit courts from three to six, and adding additional judges to each
John Marshall circuit, giving the President the authority to appoint Federal judges and justices of
Associate Justices the peace. The act also reduced the number of Supreme Court justices from six
William Cushing · William Paterson to five, effective upon the next vacancy in the Court.
Samuel Chase · Bushrod Washington
Alfred Moore On March 3, just before his term was to end, Adams, in an attempt to stymie the
incoming Democratic-Republican Congress and administration, appointed 16
Case opinions Federalist circuit judges and 42 Federalist justices of the peace to offices created
Majority Marshall, joined by Paterson, Chase, Washington by the Judiciary Act of 1801. These appointees, the infamous "Midnight Judges",
Cushing and Moore took no part in the consideration or decision of the case. included William Marbury, a prosperous financier in Maryland. An ardent
Federalist, Marbury was active in Maryland politics and a vigorous supporter of
Laws applied the Adams presidency. He had been appointed to the position of justice of the
U.S. Const. Arts. I, III; Judiciary Act of 1789 § 13 peace in the District of Columbia. The term for a justice of the peace was five
years, and they were "authorized to hold courts and cognizance of personal
Marbury v. Madison, 5 U.S. 137 (1803), was a landmark United States Supreme demands of the value of 20 dollars."
Court case in which the Court formed the basis for the exercise of judicial review
in the United States under Article III of the Constitution. The landmark decision On the following day, the appointments were approved en masse by the Senate;
helped define the boundary between the constitutionally separate executive and however, to go into effect, the commissions had to be delivered to those
judicial branches of the American form of government. appointed. This task fell to John Marshall, who, even though recently appointed
Chief Justice of the United States, continued as the acting Secretary of State at
The case resulted from a petition to the Supreme Court by William Marbury, who President Adams's personal request.
had been appointed Justice of the Peace in the District of Columbia by President
John Adams but whose commission was not subsequently delivered. Marbury
While a majority of the commissions were delivered, it proved impossible for all of are sometimes considered obiter dicta, rather than part of the rationale of the
them to be delivered before Adams's term as president expired. As these case.
appointments were routine in nature, Marshall assumed the new Secretary of
State James Madison would see they were delivered, since "they had been Any notion that courts could declare statutes void was defeated in England with
properly submitted and approved, and were, therefore, legally valid the Glorious Revolution of 1688, when King James II was removed and the
appointments." On March 4, 1801, Thomas Jefferson was sworn in as President. elected Parliament declared itself supreme. However, it continued to be known in
As soon as he was able, President Jefferson ordered Levi Lincoln, who was the the American colonies and at the bars of young states, where Coke's books were
new administration's Attorney General and acting Secretary of State until the very influential. The doctrine was specifically enshrined in some state
arrival of James Madison, not to deliver the remaining appointments. Without the constitutions, and by 1803 it had been employed in both State and Federal courts
commissions, the appointees were unable to assume the offices and duties to in actions dealing with state statutes, but only insofar as the statutes conflicted
which they had been appointed. In Jefferson's opinion, the undelivered with the language of state constitutions.
commissions, not having been delivered on time, were void.
A number of legal scholars argue that the power of judicial review in the United
The newly sworn-in Democratic-Republican 7th Congress immediately set about States predated Marbury, and that Marbury was merely the first Supreme Court
voiding the Judiciary Act of 1801 with their own Judiciary Act of 1802 which case to exercise a power that already existed and was acknowledged. These
reversed the act of 1801 so that the Judicial branch once again operated under scholars point to statements about judicial review made in the Constitutional
the dictates of the original Judiciary Act of 1789. In addition, it replaced the Convention and the state ratifying conventions, statements about judicial review
Court's two annual sessions with one session to begin on the first Monday in in publications debating ratification, and court cases before Marbury that involved
February, and "canceled the Supreme Court term scheduled for June of that year judicial review.
[1802] ... seeking to delay a ruling on the constitutionality of the repeal act until
months after the new judicial system was in operation." At the Constitutional Convention in 1787, there were a number of references to
judicial review. Fifteen delegates made statements about the power of the federal
Status of the judicial power before Marbury courts to review the constitutionality of laws, with all but two of them supporting
the idea.
Although the power of judicial review is sometimes said to have originated with
Marbury, the concept of judicial review has older roots in the United States, and Likewise, at the state ratifying conventions, over two dozen delegates in at least
possibly in England too. The idea is often attributed to the English jurist Edward seven states indicated that under the Constitution, the federal courts would have
Coke and his opinion in Dr. Bonham’s Case, 8 Co. Rep. 107a (1610), although the power to declare statutes unconstitutional. Professors Saikrishna Prakash
this attribution has been called "one of the most enduring myths of American and John Yoo point out, with respect to the ratification of the Constitution, that
constitutional law and theory, to say nothing of history". Bonham's Case was not "no scholar to date has identified even one participant in the ratification fight who
mentioned in Marbury v. Madison, and the Court later stated that Bonham's Case argued that the Constitution did not authorize judicial review of Federal statutes.
did not make common law supreme over statutory law: This silence in the face of the numerous comments on the other side is
revealing."
[N]otwithstanding what was attributed to Lord COKE in Bonham's Case, 8
Reporter, 115, 118a, the omnipotence of parliament over the common law was The concept of judicial review was discussed in The Federalist Papers.
absolute, even against common right and reason. The actual and practical Alexander Hamilton asserted in Federalist No. 78 that under the Constitution, the
security for English liberty against legislative tyranny was the power of a free federal courts would have not just the power, but the duty, to examine the
public opinion represented by the commons. constitutionality of statutes:

Coke's meaning has been disputed over the years, for example by scholars who [T]he courts were designed to be an intermediate body between the people and
contend that Coke only meant to construe a statute without challenging the legislature, in order, among other things, to keep the latter within the limits
Parliamentary sovereignty. His remarks that seem suggestive of judicial review 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 Controversies to which the United States shall be a Party; to Controversies
meaning, as well as the meaning of any particular act proceeding from the between two or more States; between a State and Citizens of another State,
legislative body. If there should happen to be an irreconcilable variance between between Citizens of different States, between Citizens of the same State claiming
the two, that which has the superior obligation and validity ought, of course, to be Lands under Grants of different States, and between a State, or the Citizens
preferred; or, in other words, the Constitution ought to be preferred to the statute, thereof, and foreign States, Citizens or Subjects.
the intention of the people to the intention of their agents.
— U.S. Constitution, Article III, Section 2, Clause 1
The opponents to ratification, known as Anti-federalists, agreed that the federal
courts would have the power to declare statutes unconstitutional, but were Relevant law
concerned that this would give the federal courts too much power. Robert Yates
argued: "The supreme court then have a right, independent of the legislature, to In all Cases affecting Ambassadors, other public Ministers and Consuls, and
give a construction to the constitution and every part of it, and there is no power those in which a State shall be a Party, the supreme Court shall have original
provided in this system to correct their construction or do it away. If, therefore, Jurisdiction. In all the other Cases before mentioned [within the judicial power of
the legislature pass any laws, inconsistent with the sense the judges put upon the United States], the supreme Court shall have appellate Jurisdiction, both as
the constitution, they will declare it void." to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.
A number of courts engaged in judicial review before Marbury was decided. At
the time of the Constitutional Convention, there had been cases in the state — U.S. Constitution, Article III, Section 2, Clause 2
courts of at least seven states involving judicial review of state statutes.[22]
Between the ratification of the Constitution in 1788 and the Supreme Court's The Supreme Court shall also have appellate jurisdiction from the circuit courts
decision in Marbury in 1803, judicial review was used a number of times in both and courts of the several states, in the cases herein after provided for; and shall
state and federal courts. One scholar counted thirty-one cases during this period have power to issue writs of prohibition to the district courts [...] and writs of
in which courts found statutes unconstitutional, concluding: "The sheer number of mandamus [...] to any courts appointed, or persons holding office, under the
these decisions not only belies the notion that the institution of judicial review authority of the United States.
was created by Chief Justice Marshall in Marbury, it also reflects widespread
acceptance and application of the doctrine." — Judiciary Act of 1789, § 13

Scholars have pointed out the Supreme Court itself already had engaged in Issue
judicial review before Marbury, although it had not struck down the statute in
question because it concluded that the statute was constitutional. In Hylton v. There are three ways a case can be heard in the Supreme Court: (1) filing
United States, 3 U.S. (3 Dall.) 171 (1796), the Court upheld a federal tax on directly in the Supreme Court; (2) filing in a lower federal court, such as a district
carriages against a claim that the tax violated the "direct tax" provision of the court, and appealing all the way up to the Supreme Court; (3) filing in a state
Constitution. Therefore, the concept of judicial review was familiar before court, appealing all the way up through the state's highest courts, and then
Marbury. appealing to the Supreme Court on an issue of federal law. The first is an
exercise of the Court's original jurisdiction; the second and third are exercises of
However, it is important to note that nothing in the text of the Constitution the Supreme Court's appellate jurisdiction.
explicitly authorized the power of judicial review, despite persistent fears voiced
by Anti-federalists over the power of the new Federal court system: Because Marbury filed his petition for the writ of mandamus directly in the
Supreme Court, the Court needed to be able to exercise original jurisdiction over
The judicial Power shall extend to all Cases, in Law and Equity, arising under this the case in order to have the power to hear it.
Constitution, the Laws of the United States, and Treaties made, or which shall be
made, under their Authority; to all Cases affecting Ambassadors, other public
Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to
Marbury's argument is that in the Judiciary Act of 1789, Congress granted the A federal court has a "special obligation to 'satisfy itself not only of its own
Supreme Court original jurisdiction over petitions for writs of mandamus. This jurisdiction, but also that of the lower courts in a cause under review.'"[28] If a
raises several issues that the Supreme Court had to address: court does not have the power to hear a case, it will not issue dicta.
Consequently, with exceptions not applicable here, a federal court must decide
 Does Article III of the Constitution create a floor for original jurisdiction, whether it has jurisdiction before discussing the merits of the case.[29] Chief
which Congress can add to, or does it create an exhaustive list that Justice Marshall, however, did not address jurisdictional issues until addressing
Congress can't modify at all? the first two questions presented above. Because of the canon of constitutional
 If Article III's original jurisdiction is an exhaustive list, but Congress tries avoidance (i.e., where a statute can fairly be interpreted so as to avoid a
to modify it anyway, who wins that conflict, Congress or the Constitution? constitutional issue, it should be so interpreted), courts generally deal with the
 And, more importantly, who is supposed to decide who wins? constitutional issues only if necessary. In this case, the jurisdictional issue was a
 In its answer to this last question, the Supreme Court formalizes the constitutional one.
notion of judicial review. In short, the constitutional issue on which
Marbury v. Madison was decided was whether Congress could expand In analyzing the third question, Marshall divided the question further, asking if a
the original jurisdiction of the Supreme Court. writ of mandamus was the correct means by which to restore Marbury to his
right, and if so, whether the writ Marbury sought could issue from the Supreme
Decision Court. Concluding quickly that since a writ of mandamus, by definition, was the
correct judicial means to order an official of the United States (in this case, the
On February 24, 1803, the Court rendered a unanimous (4–0) decision,[26] that Secretary of State) to do something required of him (in this case, deliver a
Marbury had the right to his commission but the court did not have the power to commission), Marshall devotes the remainder of his inquiry at the second part of
force Madison to deliver the commission. Chief Justice Marshall wrote the the question: "Whether it [the writ] can issue from this court."
opinion of the court. Marshall presented the case as raising three distinct
questions: Marshall first examined the Judiciary Act of 1789 and determined that the Act
purported to give the Supreme Court original jurisdiction over writs of mandamus.
 Did Marbury have a right to the commission? Marshall then looked to Article III of the Constitution, which defines the Supreme
 Do the laws of the country give Marbury a legal remedy? Court's original and appellate jurisdictions (see Relevant Law above). Marbury
 Is asking the Supreme Court for a writ of mandamus the correct legal had argued that the Constitution was only intended to set a floor for original
remedy? jurisdiction that Congress could add to. Marshall disagreed and held that
Congress does not have the power to modify the Supreme Court's original
 Marshall quickly answered the first two questions affirmatively. He found
jurisdiction. Consequently, Marshall found that the Constitution and the Judiciary
that the failure to deliver the commission was "violative of a vested legal
Act conflict.
right."

This conflict raised the important question of what happens when an Act of
In deciding whether Marbury had a remedy, Marshall stated: "The Government of
Congress conflicts with the Constitution. Marshall answered that Acts of
the United States has been emphatically termed a government of laws, and not
Congress that conflict with the Constitution are not law and the Courts are bound
of men. It will certainly cease to deserve this high appellation if the laws furnish
instead to follow the Constitution, affirming the principle of judicial review. In
no remedy for the violation of a vested legal right." One of the key legal principles
support of this position Marshall looked to the nature of the written Constitution—
on which Marbury relies is the notion that for every violation of a vested legal
there would be no point of having a written Constitution if the courts could just
right, there must be a legal remedy. Marshall next described two distinct types of
ignore it. "To what purpose are powers limited, and to what purpose is that
Executive actions: political actions, where the official can exercise discretion, and
limitation committed to writing, if these limits may, at any time, be passed by
purely ministerial functions, where the official is legally required to do something.
those intended to be restrained?" Marshall also argued that the very nature of the
Marshall found that delivering the appointment to Marbury was a purely
judicial function requires courts to make this determination. Since it is a court's
ministerial function required by law, and therefore the law provided him a
duty to decide cases, courts have to be able to decide what law applies to each
remedy.
case. Therefore, if two laws conflict with each other, a court must decide which
law applies. Finally, Marshall pointed to the judge's oath requiring them to uphold office for life, and not responsible, as the other functionaries are, to the elective
the Constitution, and to the Supremacy Clause of the Constitution, which lists the control. The Constitution has erected no such single tribunal, knowing that to
"Constitution" before the "laws of the United States." Part of the core of this whatever hands confided, with the corruptions of time and party, its members
reasoning is found in the following statements from the decision: would become despots. It has more wisely made all the departments co-equal
and co-sovereign within themselves.
It is emphatically the province and duty of the Judicial Department [the judicial
branch] to say what the law is. Those who apply the rule to particular cases must, Some legal scholars have questioned the legal reasoning of Marshall's opinion.
of necessity, expound and interpret that rule. If two laws conflict with each other, They argue that Marshall selectively quoted the Judiciary Act of 1789,
the Courts must decide on the operation of each. interpreting it to grant the Supreme Court the power to hear writs of mandamus
on original jurisdiction.[40] These scholars argue that there is little connection
So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both between the notion of original jurisdiction and the Supreme Court, and note that
the law and the Constitution apply to a particular case, so that the Court must the Act seems to affirm the Court's power to exercise only appellate jurisdiction.
either decide that case conformably to the law, disregarding the Constitution, or Furthermore, it has been argued that the Supreme Court should have been able
conformably to the Constitution, disregarding the law, the Court must determine to issue the writ on original jurisdiction based on the fact that Article III of the
which of these conflicting rules governs the case. This is of the very essence of Constitution granted it the right to review on original jurisdiction "all cases
judicial duty. If, then, the Courts are to regard the Constitution, and the affecting ... public ministers and consuls," and that James Madison, Secretary of
Constitution is superior to any ordinary act of the Legislature, the Constitution, State at the time and defendant of the suit, should have fallen into that category
and not such ordinary act, must govern the case to which they both apply. of a "public minister [or] consul."

Those, then, who controvert the principle that the Constitution is to be considered Questions have also frequently been raised about the logic of Marshall's
in court as a paramount law are reduced to the necessity of maintaining that argument for judicial review, for example by Alexander Bickel in his book The
courts must close their eyes on the Constitution, and see only the law [e.g., the Least Dangerous Branch.
statute or treaty].
Marbury has also been criticized on the grounds that it was improper for the
This doctrine would subvert the very foundation of all written constitutions. Court to consider any issues beyond jurisdiction. After concluding that the Court
lacked jurisdiction in the case, the further review regarding the substantive issues
"In denying his request, the Court held that it lacked jurisdiction because Section presented was arguably improper. Also, it has been argued that Justice Marshall
13 of the Judiciary Act passed by Congress in 1789, which authorized the Court should have recused himself on the grounds that he was still acting Secretary of
to issue such a writ, was unconstitutional and thus invalid." State at the time the commissions were to be delivered and it was his brother,
James Marshall, who was charged with delivering a number of the commissions.
Subsequent developments
Marbury never became a Justice of the Peace in the District of Columbia. His Because the Constitution lacks a clear statement authorizing the Federal courts
case marked the point at which the Supreme Court adopted a monitoring role to nullify the acts of coequal branches, critics contend that the argument for
over government actions. judicial review must rely on a significant gloss on the Constitution's terms.[citation
needed] Despite such criticisms of Marbury v. Madison, judicial review has been
Criticism accepted in the American legal community.
Jefferson disagreed with Marshall's reasoning in this case:
On the other hand, the Constitution, unlike the Articles of Confederation, created
You seem to consider the judges as the ultimate arbiters of all constitutional an independent judiciary, and gave it power to resolve matters arising under the
questions; a very dangerous doctrine indeed, and one which would place us Constitution, controversies between two states, and disputes between the federal
under the despotism of an oligarchy. Our judges are as honest as other men, and government and a state, suggesting that the Framers of the Constitution intended
not more so. They have, with others, the same passions for party, for power, and the court to act as, in effect, an arbitrator, to which the parties appearing before it
the privilege of their corps.... Their power [is] the more dangerous as they are in would be bound.