Judicial Review: Marbury v. Madison as its culmination
In 1803, Chief Justice John Marshall delivered the opinion of the Supreme Court in Marbury v. Madison. This case had been brought before the Court back in December of 1801, but through no fault of its own, the Court heard arguments and decided the case in February of 1803. In this case, Marshall established a power that is now regularly exercised by the judiciary at all levels: judicial review. In the opinion of the Court, he wrote: “It is emphatically the province and duty of the judicial department to say what the law is.”[^1] In deciding this case, the Court invalidated an act of Congress for being outside the scope of their power. This power would not be used again until 1857, but it has become a cornerstone of American republicanism and federalism, propping up or tearing down laws that do not comport with the Constitution. This paper seeks to identify exactly how this power was understood throughout history and how it plays into the functions of government.
The term “judicial review” was not even coined until 1910 when the Court, according to historian Gordon Wood, was going through a huge surge in its power and authority.[^2] Wood described that Marshall could not have imagined the extent to which the Court would exert this power as it delved into social and political questions of the day. Marshall in fact denied going into the political side of the issue at hand in Marbury. The concept of judicial review has grown quite large since 1803, and the decision in Marbury was not even the definitive start of the power. It gradually grew and, as Bernard Schwartz writes, the decision in Marbury was simply the articulation of a power already inherent and understood.[^3]
In the colonial era, judges were not held in high esteem. They were described as “appendages or extensions of royal authority” due to their authority being derived from the royal governors.[^4] As such, in the minds of the colonists, there were really only two branches of government: the legislature and the executive. This subordination of the judiciary to the executive would come up again later during the Constitutional Convention, but would be denied for an independent judiciary. Back in the colonial period however, the judges were given quite a bit of discretion when deciding issues. Colonial law was based mostly in English common law; written statutes were scarce and so the judges had to rely on past cases ruling on the same issues.[^5]
In the aftermath of the Revolution, the states decided to take matters into their own hands and codify much of the common law. Writing the laws down, historian Gordon Wood points out, would solve the problem of judges taking the law into their own hands and turn the, into “a mere machine” per Jefferson.[^6] The legislature therefore became the trusted source of protecting the peoples’ liberties from the capricious judiciary. The judges would have to defer to the laws as written and could not rule just based on common law. However, legislatures were writing statutes at a rapid pace and eventually the people came to regard them as a threat to limited government.[^7]
This was all in the course of around ten years. In fact, James Madison wrote that there were more laws written in the “ten years following the Declaration of Independence than in the entire colonial period”.[^8] The legislature was quickly becoming the bane of governmental operations, and states responded in a variety of ways. Several states, including Pennsylvania and Vermont, set up a specific institution to make sure the executive and legislature did not exercise greater authority or power than granted by their constitutions. New York created a Council of Revision that gave the veto power over legislation to a council of the Governor and judges from the supreme court.[^9]
To give judges in one of the most populous states a say over legislation was quite the departure from the colonial era. It is important to note that most of these restrictions on the legislature (and the executive to an extent) were enshrined in the states’ constitutions.[^10] The popular and democratic power of the legislatures was seen as out of control and restraints needed to be instituted.[^11] With the institution of written constitutions with clearly enumerated powers given to the government, it was seen by many as a single point from which it could be understood what powers were granted and to whom.[^12] The power of these institutions were clearly delineated in a way that had not been done before.
The judiciary was one of the beneficiaries of this demarcation of power. They were now regarded by some as one of the “three capital powers of Government” which shared co-equal status with the executive and legislature.[^13] This is not to say it was the majority opinion of the time, with James Madison writing one year after the Constitution was ratified that the judiciary was not intended to be co-equal with the legislature.[^14] Even so, in several cases coming out of state supreme courts, the judiciary exercised a form of judicial review and set aside laws that violated their state’s constitution or charter. An important fact is that in none of these cases did the judiciary have any authority granted them by the text of their state’s constitution to exercise this power.[^15]
Previous to the drafting and adoption of the Constitution, one of the first cases to practice a form of judicial review was the New Jersey’s supreme court case of Holmes v. Watson in 1780. Though the actual wording of the opinion has been lost, contemporary writings do indicate that a New Jersey law was “pronounced unconstitutional, and therefore void” by the state’s supreme court.[^16] A later case out of Virginia declared that the court did indeed have the power to nullify any act of either the executive or the legislature. While this declaration was made by three out of the eight judges on the court, it showcases that the idea of the power of judicial review being vested in the judiciary was gaining traction.[^17]
The most documented and possibly famous pre-Constitutional state case to deal with judicial review was a 1784 case out of New York.[^18] In this case, Alexander Hamilton himself argued that the court must defer to the law of higher authority when two laws come into conflict. The court agreed and refused to apply the law at issue as it did indeed run counter to a treaty adopted by the United States. These cases can be seen as a gradual acceptance that the courts had a role in stating what the law was, but also, which law was supreme.
The reaction to these and other cases was not always positive however. Several states passed resolutions condemning the actions of the courts with one stating that it was “absurd” to assume the courts were above the legislature. Another state reprimanded the judges involved in the case and did not reappoint all but one of them.[^19] Other states however such as North Carolina and New Hampshire, decided after debate that the judges had done nothing wrong and that their actions were “justified.”[^20]
The young confederation had indeed seen a changing in its views on the judiciary that had grown since before the Revolution. The colonists had seen the judiciary as a stinging reminder of their subordination to royal authority. In response, popular democracy took hold and legislatures began acting to preserve liberty and civil rights. The law, at the time, was seen as immutable as it was the work of the popularly elected legislature. The people had technically authorized this legislation, so no one could really challenge it. However, when the states started ratifying their own constitutions, this was also seen as an act of the people. The powers of the government were clearly enumerated and to go against the constitution was to go against the will of the people.[^21]
These state constitutions and the cases decided regarding them could not have been far from the minds of the delegates at the Constitutional Convention. Those meeting there included several who had been involved in the cases as both judges and attorneys.[^22] The Articles of Confederation had governed the nation, or more accurately confederacy, since 1781, but had been seen as a failure by 1787. The states were more like small nations who had retreated inward as a counter to the authoritarian rule of England which had just been deposed. The confederacy had a weak national government that could only request the states help pay back the war debts.[^23]
In debating what the new government would look like, the first major plan, the Virginia Plan, recommended a council that would be comprised of the President and judges that would together share the veto power over legislation.[^24] In debating this Council of Revision, Elbridge Gerry and Rufus King both agreed that the executive themselves should have the power to veto and to include the judiciary would be counter-intuitive.[^25] This was because the judiciary should be “able to expound the law”, reviewing the laws as they were adjudicated and not when the legislature passed it.[^26]
Indeed, more than a month later, George Mason would agree that to allow the judiciary a share in the veto power would be unwise. The judges would hear the laws as they were challenged and then “could declare an unconstitutional law void.”[^27] As such, the argument over whether the judiciary should share in the veto power necessarily leads one to assume the drafters understood that the judiciary could review laws at all. Otherwise, this debate over whether the judiciary should have a double share of judging the law would be superfluous.
The delegates agreed that some kind of check was needed on the legislature, a departure from the post-revolutionary period when the power of the executive was diminished and the judiciary was held in contempt.[^28] Two delegates however, Francis Mercer and John Dickinson, were seemingly against the idea of the judiciary filling this role and thought judicial review shouldn’t exist.[^29] However, as Prakash and Yoo point out, the words used by the two delegates such as disapproving of the “Doctrine” of judicial review indicate that they believed it to be both a widely understood power and already “incorporated into the draft constitution."[^30]
Later, during the ratification of the new Constitution, John Dickinson would defend the idea of judicial review.[^31] In response to both Mercer and Dickinson, Gouverneur Morris stated that the legislature must have some kind of check against them and that the judiciary should not be required to accept a law in direct violation of the Constitution.[^32] In the end, the delegates agreed that the judiciary's jurisdiction would “extend to all cases … arising under this Constitution [and] the laws of the United States” (U.S. Constitution art. 3, sec. 2). The delegates also agreed that the Constitution and the laws “made in pursuance thereof” would be the “supreme law of the land” (U.S. Constitution art. 6). Importantly, this meant that only the laws made in pursuance of the Constitution would be the supreme law, necessarily excluding those that do not comport with it.
The Constitutional Convention approved and signed the final document on September 17, 1787, creating a brand new government that when approved by nine states would override the Articles of Confederation and come into being. By July 1788, all but two states ratified the new Constitution with North Carolina and Rhode Island waiting until November 1789 and May 1790 respectively.[^33] The road to ratification though was not guaranteed and was hotly contested in several states including Massachusetts, New York, and Virginia, the most populous states.
When Pennsylvania debated the concept of judicial review, James Wilson gave an impassioned defense of it, saying that judges would simply be doing their job by declaring a law void.[^34] This speech was reprinted in several papers throughout the states, showing its importance as a defense of the proposed Constitution.[^35] Delegate Samuel Adams of Massachusetts also believed this to be a power of the federal judiciary when laws went beyond the limits set in the Constitution.[^36] In Connecticut, one of the Constitutional Convention delegates defended the judiciary as a check against the legislature with the power to declare laws “the Constitution does not authorize” to be void.[^37]
Most states did not discuss the judiciary at length until the Virginia convention started its debate on June 19th, 1788.[^38] By this point, eight out of the required nine states had ratified the constitution, with the last state, South Carolina, having voted to ratify on May 23rd.[^39] New Hampshire would be the ninth state to ratify on June 21st, only a few short days later. Virginia, however, would think that it was the ninth state to ratify when it voted on the 25th and would not know any different until June 28th.[^40]
George Mason had believed Congress’ powers to be nearly unlimited and so feared that the power to hear all cases “arising under [the] Constitution” would mean the federal judiciary would have unlimited jurisdiction and override state courts.[^41] John Marshall, who would eventually decide Marbury v. Madison, gave a passionate defense of the federal judiciary and its ability to declare laws void that went outside the scope of Congress’ enumerated powers.[^42] These fears were repeated in North Carolina and the same reassurances were given to the delegates there.[^43]
Even though New Hampshire and Virginia allowed the Constitution to go into effect for the states that ratified it, the large and populous New York had not yet done so. Almost a month after the Constitution was signed, Alexander Hamilton, John Jay, and James Madison began penning anonymous essays that were published in New York newspapers, but republished throughout the states. These essays, collectively known as the “Federalist Papers” help to illuminate exactly what the new Constitution would and would not do. They were obviously meant to be persuasive essays, even though they started in October 1787 and the New York convention did not meet until June 1788.[^44]
The Federalist Papers give quite a detailed explanation of what one of the main drafters, Madison, plus strong nationalist Hamilton, and the first Chief Justice of the Supreme Court John Jay believed the Constitution to mean. Madison first wrote on judicial review in Federalist 39, writing that the new national government had its jurisdiction specifically enumerated and any overreach would be ultimately decided “according to the rules of the constitution” at the Supreme Court.[^45]
Later though, in Federalist 49, he did state his belief that all departments of the federal government had a right to interpret the Constitution, and not just the judiciary. He believed that the power to finally interpret the Constitution belonged to the people “as the grantors of the commission."[^46] Jefferson also held this belief, and both men kept it until their deaths.[^47] This belief would also come through in 1798 in response to acts of Congress they deemed unconstitutional.
Hamilton gave a more deliberate defense of judicial review, especially in Federalist 78 and 81. Federalist 78 states that the constitution “must be regarded … as fundamental law” and that any act of Congress that is in conflict with the Constitution must be set aside.[^48] Hamilton also wrote that this would enable the judiciary to act as a check on Congress, who may in the heat of the moment, pass legislation that is unjust or who may exceed the powers granted them by the Constitution.
In Federalist 81, Hamilton wrote about judicial review even more directly stating that the laws should give way to the Constitution and that the judiciary have the implicit power to "construe the laws."[^49] This is not because the Constitution specifically gives this power to the judiciary, but because of how a written constitution should be construed as the highest law. Madison also touched on this when he said that the Constitution is supreme because the people will have agreed to it and not the legislatures or any kind of chief magistrate.
Some of these persuasive essays, indeed most of them, were in response to specific concerns circulated by Anti-Federalists, those who did not want to ratify the Constitution. One of the more famous ones, writing as “Brutus”, also believed that the power of judicial review was implicit in the Constitution. He wrote that the courts would be able to determine what the constitution means and that they would be unable to “execute a law” which “opposes the constitution.”[^50] All in all, Prakash and Yoo found 109 instances during ratification throughout the states where judicial review was confirmed as a power belonging to the judiciary.[^51]
After the new nation was established, it was now time to set up the government according to the newly ratified Constitution. The Judiciary Act of 1789, one of the first bills considered, established the actual structure of the judiciary, which Article III of the Constitution left up to Congress.[^52] In writing this and other laws during the very first session of the new Congress, the members all acknowledged that judicial review could put their new laws under scrutiny.[^53]
Again, no enumerated power was given to any part of the judiciary to set aside laws that did not comport with the Constitution, possibly because those drafting the bill, as Hamilton wrote, believed it to be an innate power granted by having a written constitution. Indeed, while debating the bill, Congress agreed that the Constitution would guide the courts, but only so far as the law adhered to the Constitution.[^54]
The Judiciary Act even gave the Supreme Court appellate jurisdiction over cases where a state’s highest court ruled that a federal statute was invalid and when the same courts ruled in favor of a state law that was in conflict with a federal law or the Constitution.[^55] As was implicit in the Constitution itself, Congress knew that courts could review the validity of laws and possibly set them aside. The main issue that crept up was that some in the government did not believe this to be a power exclusive to the judiciary.
This idea, prominently carried by Thomas Jefferson and James Madison, came to a head during the Quasi-War with France in the late 1790s. During this time, the relationship between the United States and France was becoming strained due to unpaid debts incurred during the Revolutionary War and new treaties being signed between the U.S. and Britain. Tensions were already high when in in 1796, the French began seizing American ships.[^56] The U.S. attempted to start negotiations in July of 1797, but were turned away unless they paid a bribe.[^57]
Suddenly, fear of French subversion was abound in the U.S. and nativism was taking hold as Adams and Congress declared a “quasi-war” with France. In response to fear of foreign influence, President Adams with the help of the Federalist-controlled Congress passed four separate acts that would set the stage for a possible Constitutional crisis. The first act, the Naturalization Act, simply extended the waiting period for immigrants to be naturalized citizens from four to fourteen years. This was seen by the Federalists who passed it as a way to shut out French influence, but was obviously an attack on Jefferson’s Democratic-Republican party – most of whom were immigrants.[^58]
The next two acts were the Alien Enemies Act and the Alien Friends Act. The Enemies Act enabled the president to deport enemy aliens in times of war and is still in effect today, most recently used in World War II to detain Japanese-Americans.[^59] The Alien Friends Act enabled the president, at any time and without a hearing, to deport aliens from any nation no matter if the United States was at war with them or not. Any alien who was judged to be “dangerous to peace and safety” was at risk of deportation at any time under this act.[^60]
The last act to be passed, which is possibly the most egregious, was the Sedition Act. This act was a direct attack on the freedom of speech and of the press. The press was seen by the Federalists as becoming very partisan and even “disloyal”. The Sedition Act outlawed saying or publishing anything “false, scandalous, and malicious” against the government, either chamber of Congress, or the President.[^61] Ten people total were convicted under this act, but a total of twenty-five were arrested.[^62] It was not lost on the Democratic-Republican Vice-President Jefferson that his position was omitted from being protected from defamation.
These acts combined, passed in the summer of 1798, set the stage for the Democratic-Republican faction to take matters into their own hands to hopefully right these wrongs. In the months after passage of the Alien and Sedition Acts, Vice-President Jefferson worried, quite correctly, that these acts would be used politically. Since the Federalists were in power, those who would criticize the government were Jefferson’s opposition party. Newspaper editors who favored Jefferson’s party were indeed the ones being targeted by the Sedition Act specifically.[^63] Jefferson referred to the period as a “reign of witches” and believed the federal government had become “more arbitrary, and [had] swallowed more of the pubic liberty than even that of England.”[^64]
In secret, Jefferson and Madison drafted sister resolutions in Kentucky and Virginia respectively, taking a stance against the federal government’s actions in passing the Alien and Sedition Acts. The resolutions were drafted in secret mainly to protect both men from charges of sedition under the very act they were protesting.[^65] The resolutions from Kentucky were much stronger than their sisters from Virginia and called specifically for the states to nullify these acts of Congress that were counter to the Constitution.[^66]
The first resolution from Kentucky in 1798 did not include this nullification clause, but it was included in Jefferson’s earliest known draft dated at least before October of 1798.[^67] The final resolution as passed also declared that each state had a right to judge for itself how far the federal government could go.[^68] The Virginia Resolutions, secretly authored by Madison, were less direct and harsh. Nowhere in Madison’s drafts was the idea that the states could nullify federal actions, but the final resolution as passed did posit that the states could “interpose” and hoped that the states would take the “necessary and proper measures” to combat these unconstitutional acts.[^69]
Both states sent these resolutions to be considered by the other states to see if the agreed with Kentucky and Virginia that the Union was simply a “compact” of states and the federal government was beneath the power of the states.[^70] Kentucky sent theirs out first in mid-November and Virginia followed suit in December 1798.[^71] Maryland was the first to respond, and only to Kentucky as Virginia had not yet passed its resolutions.
By a vote in the House of 58-14, they declared the resolutions “highly improper.”[^72] After receiving the Virginia resolution, the Maryland House agreed that to declare the Alien and Sedition Acts unconstitutional would be out of the realm of possibility for a state legislature. Most importantly, the Maryland House, in its committee report, but not in the final resolution, stated that this was the jurisdiction of the “Courts of the United States.”[^73]
Rhode Island, Massachusetts, Connecticut, New Hampshire, Delaware, Vermont, and New York took similar stances, taking issue with the Kentucky and Virginia resolutions.[^74] Delaware, Vermont, and New York’s lower chamber did not take up the issue of the constitutionality of the Alien and Sedition Acts, asserting only that state legislature’s could not override the federal government. Tennessee agreed with Kentucky in principle (they had not received Virginia’s resolution when debate began), but disagreed with how to handle the unconstitutionality of the Alien and Sedition Acts.
In Tennessee’s resolutions, they agreed to state their displeasure to their Congressional delegation and ask for its repeal.[^75] Georgia similarly agreed with the main points of the resolutions, and even “hope[d] that they will be repealed without the interposition of the state legislature” indicating it was a possibility in the minds of the Georgia legislature.[^76] Other states simply did not take action or were split on how to respond.
In the end, the main issue at the time was the apparent encroachment of the federal government into the states’ sphere of influence. Only a few states took issue with the idea of the state legislatures being able to interpose or nullify federal actions and some even declared this the realm of the courts. Most of those in opposition were in fact states dominated by the Federalists, those that passed the Alien and Sedition Acts in Congress. Those in favor of their repeal were Democratic-Republican states, also notably Southern.[^77]
This split would show up again in the hotly contested election of 1800. This election is the reason for the Twelfth Amendment which allows for separate election of President and Vice-President. This election also saw the first transition of power from one party to another. Jefferson’s Democratic-Republicans had won control of the entire federal government, ousting Adams and his Federalists. In the last months and days of his presidency though, Adams sought to solidify Federalist power through other means. It would be these actions, and Jefferson’s after him, that would give rise to Marbury’s claim in Marbury v. Madison.
The Organic Act and the Judiciary Act of 1801, passed in the last days of the Adams administration, allowed the President to appoint new justices of the peace, basically judges of courts with limited jurisdiction.[^78] Adams, with the help of the lame-duck Federalist Congress, filled out new circuit court judgeships and the new justice of the peace roles in record time. Marshall had already been serving as Adams Secretary of State and it was his job to deliver the commissions to the new officers, including the justices of the peace. He also helped Adams field nominations and oversee the logistics.[^79]
Most of the justices of the peace had their commissions delivered, except for a handful including William Marbury’s. The day after President Jefferson’s inauguration, he found these undelivered commissions in the State Department’s building and specifically “forbade their delivery.”[^80] In a letter written many years after Marbury, Jefferson recalled thinking that “delivery is one of the essentials to validity of the deed” and since the commissions remain undelivered, he did not have to honor them.
On December 16, 1801, the former Attorney General Charles Lee came to the Supreme Court representing four men who had been nominated for justices of the peace and requested they file a writ of mandamus, requiring the commissions to be delivered. There was never a written explanation as to why they had waited so long to file their case. They had attempted only just recently to contact the new Secretary of State, James Madison, to find their commissions, but had been been bounced to the clerk, who was uncertain if the commissions even still existed.[^81]
The petitioners had also asked the Senate for documentation, but heard no response. Sloan & McKean posit that the air in December of 1801 was ripe with press battles between Democratic-Republican and Federalist newspapers, a new Democratic-Republican Congress was in town, and President Jefferson was asking for this new Congress to repeal the Judiciary Act of 1801. The Court took the case under advisement announcing the next day that both the President and the Secretary of State would need to explain why the commissions had not been delivered.
Up to this point, the judiciary and the Supreme Court itself, was not given much thought. They did not have their own building in the new capital and none was being planned or built for them. Indeed, after the Court announced they would hear arguments in this case, one Senator wrote to the Virginia Governor that the judiciary was attempting to “exalt the Judiciary character” and “stigmatize the Executive.”[^82] The President wrote to a friend that in his eyes the judiciary was now a Federalist stronghold bent on erasing republicanism.[^83]
The next year when the new Congress finally convened, the new majority introduced a motion in the Senate to repeal the Judiciary Act of 1801. The case of Marbury v. Madison hung in the background of this fight in the legislature over whether Congress even had the ability to rescind the lifetime appointments given to the new circuit court judges.[^84] Jefferson and his Democratic-Republican allies argued the Constitution in Article III gave Congress the authority to establish rules for the country’s court system and that the 1801 Judiciary Act created bloat in the federal system. They also believed it distanced the Supreme Court justices from the people by eliminating their requirement to travel to the nation’s circuit courts.[^85]
The Federalists saw the repeal as an affront to the separation of powers and independence of the judiciary. Even so, the Senate eventually did vote to repeal the Judiciary Act of 1801 in early February and sent it to the House of Representatives who approved it nearly a month later. President Jefferson signed the repeal into law on March 7, 1802, just over a year after it was passed.[^86]
A second bill, the Judiciary Act of 1802, was introduced that reorganized the circuit system of lower courts, but also undid schedule changes for the Supreme Court. The 1801 Act had switched out the February and August terms of the Court with terms in June and December. Marbury v. Madison had been scheduled for the June term, but with the passage of the 1802 Act, both the June and December terms were canceled and the old February and August terms were reinstated.[^87]
Throughout debating both the Repeal act and the 1802 Judiciary Act, the minority Federalists had argued and the majority Democratic-Republicans feared that the Supreme Court would find both pieces of legislation unconstitutional and void them as Alexander Hamilton had laid out in Federalist 78. The 1802 Judiciary Act passed both chambers of Congress and was signed into law on April 29, 1802, shutting down the Supreme Court until February 1803.[^88] Leading up to the February term, Democratic-Republican newspapers decried the idea that the judiciary could be “judges of the constitution itself” and found this idea to be undemocratic.[^89]
When the case was first presented to the Court in late 1801, Madison had not even deigned to give them a response and even when the Court finally heard the case on February 17, 1803, there was no one representing the Executive. Because the nominations were voted on in the Senate during an executive session, the record of the vote was not public.[^90] This, coupled with the fact that both the Executive and Congress stonewalled the petitioners and the fact that the case was being heard two years after the case was accepted, made it hard to establish that they were even accepted to these positions.[^91]
The lawyer for Marbury et al., Charles Lee, called two State Department clerks to the stand, one of which did recall seeing two of the petitioners’ commissions with both the president’s signature and the seal of the United States.[^92] Lee had successfully argued that the clerks had to answer questions about their “public ministerial role” as the functions of their job were either public or as an agent of the president and now turned that argument around to apply to the new Secretary of State.
Lee argued that the writ of mandamus could be issued by the Court because it would compel Madison to act in his “public ministerial role” and not as an agent of the president.[^93] This was the first battle over “executive privilege” ever argued in American court, even though it was veiled. Lee argued that the even though Madison was a “high officer” of the United States, he was “not above the law.”[^94] With that, the arguments were settled and the Court adjourned to deliberate. It was not common for the Court to deliberate for too long, with most decisions being almost immediate. Newspapers at the time speculated that it was because some of the Justices were ill or indisposed.[^95]
However, on February 24, 1803, Chief Justice Marshall read the opinion of the Court in Marbury v. Madison. In the custom of the time, the decision was read aloud and was one of the longest opinions up to that point.[^96] The opinion begins with a recap of the arguments and facts in the case, and then the Court states it answered three questions to decide the case.[^97] The first question presented is if Marbury has a right to the commission he sought. van Alstyne writes that the first issue presented should have been if the Court had authority to even decide the case in the first place, the question of jurisdiction.[^98]
In writing the opinion, Chief Justice Marshall had to decide whether Marbury was in fact appointed to his position. After writing at length about at what point an officer is “appointed” to their position by the President, Marshall agrees that since the commission was signed by the President and sealed according to the law, their appointment was completed and the next administration could not withhold it.[^99] The Court found that Marbury was in fact, illegally denied his position.
The next question was if Marbury did indeed have a right to the commission, and if that right was violated, was any remedy available. Marshall argues that the President does have political powers vested by the Constitution that are not under the purview of the courts.[^100] These political powers include who to appoint for certain offices, but Marshall makes a key distinction that Lee had somewhat made by defining two roles that the clerks served.
If an officer is appointed to serve at the will of the president and has no other duties or when “the rights of individuals are dependent on the performance of those acts”, they are acting as agents of the law and do come under the purview of the courts.[^101] Marshall then found that Marbury did indeed have a claim to the commission and that there was a remedy. Up until this point, the case seemed to be going incredibly well for Marbury and was a clear repudiation of Jefferson and Madison.
The last question to consider was if the Supreme Court in fact had the authority to grant the remedy allowed by law. Marshall broke this last question down even further, stating that it depended on both the nature of the writ and the power of the court to grant it.[^102] The writ of mandamus, as explained by Marshall, was only to be used when there is no other specific legal remedy to the issue at hand. Writs of mandamus were used in England as a tool of the king to require their subjects to carry out a specific duty.
Marshall takes a detour to explain that he understands some see this case as an excuse for the judiciary to override the executive and “intrude into the cabinet” but that the Court has no authority to probe how the executive does its job.[^103] Marshall denies this charge and says this is a simple issue of a law not being followed. Next, Marshall turns his attention to the Judiciary Act of 1789 which set up the court system and empowered the Supreme Court to issue writs of mandamus.
Marshall asks an important question: does Congress have the authority to override the Constitution? In Article III of the Constitution, it is set out that the Supreme Court would have original jurisdiction, the right to hear the case first, in “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party” (U.S. Constitution art. 2, sec. 2). In all other cases, Marshall points out, the Constitution assigns the Supreme Court appellate jurisdiction.
Marshall shows that if the framers, some of whom wrote the Judiciary Act of 1789, intended for Congress to assign more original jurisdiction to the Court, they would have done so in the Constitution. Otherwise, the words in the document are meaningless. This hearkens back to the arguments shown in the state court cases before the adoption of the Constitution. Those cases showed that the written constitutions must be the supreme law and the acts of the legislature must align with that supreme law.
Because the 1789 Judiciary Act seems to not comport with the Constitution, the Court had to ask whether an act contrary to the Constitution could become law. Marshall saw the government of the United States as one written with limits on its operation and lest the government forget its limits, they are written in the Constitution which was ratified by the many states. If the Constitution is simply another legislative action, Marshall posits, it is an “absurd attempt” to limit the power of the government it attempts to control.[^104]
Marshall then lays out the power of judicial review: “It is emphatically the province and duty of the judicial department to say what the law is.”[^105] Marshall writes that if a law and the Constitution are at odds in a specific case, the Constitution must be the controlling factor and govern the case. This argument comes from the fact that the Constitution gives the Supreme Court the power to hear cases that arise under the Constitution. To consider cases without regarding the document which gives them to power to do so would be egregious according to Marshall. Marshall points to several positive statements in the Constitution such as the fact that no tax can be levied on a state’s exports and asks whether the courts should turn a blind eye to this passage if the law of the land conflicts with it.
The culmination of several years worth of judicial and political thought was now embodied in this decision. The power of invalidating laws of the legislature had never before been so clearly stated and argued. The judiciary was now propelled to a co-equal status with the other two branches as an arbiter on whether acts of Congress are null and void. No longer were judges seen as simply arms of the crown, but they could now be seen as a safeguard of the peoples’ rights.
It would not be until 1857 in Dred Scott that the Supreme Court would again invalidate an act of Congress, and it was unfortunately to reinforce the status of black Americans as non-citizens.[^106] Importantly though, in the same February 1803 term, the Court handed down another decision in Stuart v. Laird that showed the court was one of law and could not be used for political means.[^107] In this case, the Court upheld the repeal of the 1801 Judiciary Act and the subsequent implementation of the 1802 Judiciary Act.
In bringing these actions before a Court entirely appointed by the Federalist opposition, it was hoped that these actions would be set aside and the Federalist 1801 Judiciary Act would stand. The Court refused to rule in a political manner and instead upheld the laws as being within Congress’ explicit powers to establish lower courts as they see fit. The Court solidified its role as an independent, co-equal, and legal institution. Judicial review would grow as the nation did, and the Court would continue to hold the legislature accountable.
Bernard Schwartz puts it quite succinctly that while important, Marshall’s decision in Marbury was not completely radical. Just as Jefferson’s Declaration of Independence had captured the essence of the times, so too had Marshall simply articulated power already inherent and understood.[^108] The Court would not receive much push-back for its decision in Marbury, but when it did, it was because they believed the case should not have been taken up on jurisdictional issues.[^109]
While Marbury v. Madison serves as an important marker in the history of judicial review, it does not signify its beginning, and certainly not its end. Whatever reason the Court might invalidate an act of Congress today, each majority agrees that this power resides in the Court implicitly because of the written Constitution. The people agreed to ratify it (with a stipulation of amending it) and so gave the Constitution the position as the supreme law of the land. The power of judicial review ensures that the Constitution remains the basis of all laws and actions taken by the government of the United States.
Endnotes
[^1]:Marbury v. Madison 1803, 177.
[^2]:Edward S. Corwin, “The Establishment of Judicial Review. I,” Michigan Law Review 9, no. 2 (1910): 102–25, https://doi.org/10.2307/1276638; “The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” Washington and Lee Law Review 56, no. 3 (1999): 788–89.
[^3]:A History of the Supreme Court (New York, N.Y.: Oxford University Press, 1993), 42.
[^4]:Wood, “The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” 789–90.
[^5]:Gordon S. Wood, Power and Liberty: Constitutionalism in the American Revolution (New York, N.Y.: Oxford University Press, 2021), 128, https://doi.org/10.1093/oso/9780197546918.001.0001.
[^6]:“The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” 790.
[^7]:Saikrishna B. Prakash and John C. Yoo, “The Origins of Judicial Review,” The University of Chicago Law Review 70, no. 3 (Summer 2003): 930, https://doi.org/10.2307/1600662; Wood, “The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” 790–92.
[^8]:Wood, “The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” 791.
[^9]:Prakash and Yoo, “The Origins of Judicial Review,” 929.
[^10]:Prakash and Yoo, 931–32.
[^11]:Wood, Power and Liberty, 129–30.
[^12]:Prakash and Yoo, “The Origins of Judicial Review,” 932–33.
[^13]:Wood, “The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” 792–93.
[^14]:Wood, 793.
[^15]:Prakash and Yoo, “The Origins of Judicial Review,” 933.
[^16]:Schwartz, A History of the Supreme Court, 7.
[^17]:Schwartz, 8.
[^18]:Schwartz, 8–9.
[^19]:Prakash and Yoo, “The Origins of Judicial Review,” 937; Schwartz, A History of the Supreme Court, 10.
[^20]:Prakash and Yoo, “The Origins of Judicial Review,” 936–37.
[^21]:Wood, “The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” 799.
[^22]:Prakash and Yoo, “The Origins of Judicial Review,” 939.
[^23]:Daniel A. Sjursen, A True History of the United States (Lebanon, NH: Steerforth Press, 2021), 62–64.
[^24]:Prakash and Yoo, “The Origins of Judicial Review,” 941.
[^25]:Max Farrand, ed., The Records of the Federal Convention of 1787, vol. 1 (New Haven, CT: Yale University Press, 1911), 97–98.
[^26]:Farrand, 1:98.
[^27]:Max Farrand, ed., The Records of the Federal Convention of 1787, vol. 2 (New Haven, CT: Yale University Press, 1911), 78.
[^28]:Farrand, 2:79.
[^29]:Prakash and Yoo, “The Origins of Judicial Review,” 942–43.
[^31]:Prakash and Yoo, 972.
[^32]:Farrand, The Records of the Federal Convention of 1787, 1911, 2:299.
[^33]:Erwin Chemerinsky, Constitutional Law: Principles And Policies, 6th ed. (New York, N.Y.: Wolters Kluwer, 2019), 13–14.
[^34]:Merrill Jensen, ed., The Documentary History of the Ratification of the Constitution, vol. 2 (State Historical Society of Wisconsin, 1976), 450–51, https://search.library.wisc.edu/digital/ATR2WPX6L3UFLH8I; Prakash and Yoo, “The Origins of Judicial Review,” 957.
[^35]:Prakash and Yoo, “The Origins of Judicial Review,” 965–66.
[^36]:Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster, 2010), 204–5.
[^37]:Merrill Jensen, ed., The Documentary History of the Ratification of the Constitution, vol. 3 (State Historical Society of Wisconsin, 1978), 553, https://search.library.wisc.edu/digital/ATR2WPX6L3UFLH8I.
[^38]:Maier, Ratification: The People Debate the Constitution, 1787-1788, 286–87.
[^39]:Maier, 251–52.
[^40]:Maier, 313.
[^41]:Maier, 287–88.
[^42]:Maier, 290.
[^43]:Maier, 417–18.
[^44]:Maier, 348.
[^45]:James Madison, “The Federalist #39,” Founders Online (University of Virginia Press, January 16, 1788), http://founders.archives.gov/documents/Madison/01-10-02-0234.
[^46]:James Madison, “The Federalist #49,” Founders Online (University of Virginia Press, February 2, 1788), http://founders.archives.gov/documents/Madison/01-10-02-0270.
[^47]:Wood, “The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” 795–96.
[^48]:Alexander Hamilton, “The Federalist #78,” Constitution Society, June 14, 1788, https://constitution.org/1-Constitution/fed/federa78.htm.
[^49]:Alexander Hamilton, “The Federalist #81,” Founders Online (University of Virginia Press, June 25, 1788), http://founders.archives.gov/documents/Hamilton/01-04-02-0244.
[^50]:Prakash and Yoo, “The Origins of Judicial Review,” 970.
[^52]:National Archives, “Federal Judiciary Act (1789),” National Archives, May 18, 2021, https://www.archives.gov/milestone-documents/federal-judiciary-act.
[^53]:David P. Currie, The Constitution in Congress: The Federalist Period, 1789-1801 (University of Chicago Press, 1997), 120.
[^54]:Prakash and Yoo, “The Origins of Judicial Review,” 980.
[^55]:Prakash and Yoo, 979.
[^56]:Cliff Sloan and David McKean, The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, 1st ed (New York: PublicAffairs, 2009), 22–23.
[^57]:Andrew Glass, “President Adams Briefs Congress on the XYZ Affair, April 3, 1798,” POLITICO, April 3, 2019, https://www.politico.com/story/2019/04/03/john-adams-xyz-affair-1245500.
[^58]:Stuart Leibiger, “The Alien and Sedition Acts,” Bill of Rights Institute, accessed November 21, 2023, https://billofrightsinstitute.org/essays/the-alien-and-sedition-acts/.
[^59]:History.com Editors, “Alien and Sedition Acts,” HISTORY, June 21, 2023, https://www.history.com/topics/early-us/alien-and-sedition-acts.
[^60]:Sjursen, A True History of the United States, 114.
[^61]:Sjursen, 114.
[^62]:Sjursen, 115.
[^63]:Nancy Verell and John Ragosta, “Kentucky and Virginia Resolutions,” Monticello, February 22, 2018, https://www.monticello.org/research-education/thomas-jefferson-encyclopedia/kentucky-and-virginia-resolutions/.
[^64]:Sjursen, A True History of the United States, 116; Verell and Ragosta, “Kentucky and Virginia Resolutions.”
[^65]:Verell and Ragosta, “Kentucky and Virginia Resolutions.”
[^66]:Ethelbert Dudley Warfield, The Kentucky Resolutions of 1798: An Historical Study, 2nd ed. (G.P. Putnam’s Sons, 1894), 123–26, https://hdl.handle.net/2027/uc1.b3261567?urlappend=%3Bseq=7.
[^67]:National Archives, “I. Jefferson’s Draft, [before 4 October 1798]” (University of Virginia Press), accessed November 8, 2023, https://founders.archives.gov/documents/Jefferson/01-30-02-0370-0002.
[^68]:Warfield, The Kentucky Resolutions of 1798, 106.
[^69]:National Archives, “Virginia Resolutions, 21 December 1798” (University of Virginia Press), accessed November 8, 2023, http://founders.archives.gov/documents/Madison/01-17-02-0128.
[^70]:Adrienne Koch and Harry Ammon, “The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” The William and Mary Quarterly 5, no. 2 (1948): 157, https://doi.org/10.2307/1917453.
[^71]:Wendell Bird, “Reassessing Responses to the Virginia and Kentucky Resolutions,” Journal of the Early Republic 35, no. 4 (Winter 2015): 519, https://doi.org/10.1353/jer.2015.0074.
[^72]:Frank Maloy Anderson, “Contemporary Opinion of the Virginia and Kentucky Resolutions I,” The American Historical Review 5, no. 1 (1899): 46, https://doi.org/10.2307/1832959.
[^73]:Anderson, 47.
[^74]:Bird, “Reassessing Responses to the Virginia and Kentucky Resolutions,” 525.
[^75]:Bird, 529–32.
[^76]:Bird, 535.
[^77]:Bird, 548–49.
[^78]:“An Act concerning the District of Columbia,” Pub. L. No. 6–15, 2 Stat. 103 (1801), https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/2/STATUTE-2-Pg103b.pdf.
[^79]:Sloan and McKean, The Great Decision, 53–54.
[^80]:Sloan and McKean, 76.
[^81]:Sloan and McKean, 96–97.
[^82]:Sloan and McKean, 99–100.
[^83]:Sloan and McKean, 100.
[^84]:William W. van Alstyne, “A Critical Guide to Marbury v. Madison,” Duke Law Journal 1969, no. 1 (February 1969): 5, https://doi.org/10.2307/1371456.
[^85]:Sloan and McKean, The Great Decision, 106–7.
[^86]:Jerry W. Knudson, “The Jeffersonian Assault on the Federalist Judiciary, 1802-1805; Political Forces and Press Reaction,” The American Journal of Legal History 14, no. 1 (January 1970): 57, https://doi.org/10.2307/844519.
[^87]:Sloan and McKean, The Great Decision, 113.
[^88]:Knudson, “The Jeffersonian Assault on the Federalist Judiciary, 1802-1805; Political Forces and Press Reaction,” 61.
[^89]:Sloan and McKean, The Great Decision, 126–27.
[^90]:Sloan and McKean, 128–29.
[^91]:Burt Neuborne, Madison’s Music: On Reading the First Amendment (New York, N.Y.: The New Press, 2015), 162–65.
[^92]:Sloan and McKean, The Great Decision, 134–35.
[^93]:Marbury v. Madison 1803, 139; Sloan and McKean 2009, 139.
[^94]:Marbury v. Madison 1803, 149; Sloan and McKean 2009, 140.
[^95]:Sloan and McKean, The Great Decision, 144.
[^96]:Sloan and McKean, 153.
[^97]:Marbury v. Madison 1803, 154.
[^98]:van Alstyne, “A Critical Guide to Marbury v. Madison,” 6.
[^99]:Marbury v. Madison 1803, 162.
[^100]:Marbury v. Madison 1803, 165–66.
[^101]:Marbury v. Madison 1803, 166.
[^102]:Marbury v. Madison 1803, 168.
[^103]:Marbury v. Madison 1803, 169–70.
[^104]:Marbury v. Madison 1803, 177.
[^105]:Marbury v. Madison 1803, 177.
[^106]:Schwartz, A History of the Supreme Court, 41.
[^107]:Sloan and McKean, The Great Decision, 169–71; Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803).
[^108]:Schwartz, A History of the Supreme Court, 42.
[^109]:Sloan and McKean, The Great Decision, 166–67.