Marbury v. Madison

V

Marshall’s Opinion

Marshall's solution was a brilliant legal opinion (decision) in which he accomplished three things. First, he was able to criticize Madison (and therefore Jefferson) for not giving Marbury his commission. Second, he deftly avoided a confrontation with the president by not ordering him, or Madison, to do anything at all. Third, he established the power of the Court to declare a law of Congress unconstitutional—the power of judicial review. He accomplished this in such a way that Jefferson could not complain, even though Jefferson opposed the idea of judicial review.

Marshall began his opinion by asking three questions: (1) Was Marbury entitled to the commission? (2) If he was entitled to the commission, did the law provide a remedy for the failure to receive it? and (3) If the law did provide a remedy, was that remedy a mandamus issued by the Court?

Marshall elaborately answered the first question, discussing in great detail why the law required delivery of the commission. He concluded that withholding the commission violated Marbury’s legal rights. He then turned to the second question—whether the law would redress this violation of Marbury’s rights. Marshall’s assertion of an obvious legal principle was unequivocal: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.”

Implicitly criticizing Jefferson and his administration, Marshall wrote that even “in Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.” Marshall implied that by refusing to give Marbury his commission, the Jefferson administration was acting more arbitrarily than even King George III of England, the unpopular sovereign when the American colonies declared independence and formed the United States. Marshall warned of the dangers of the actions of the president, stating that the government of the United States “has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Not surprisingly, after careful analysis, Marshall concluded that the laws of the United States did afford a remedy to Marbury.

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VI

Marshall’s Solution

Marbury had asked for the writ of mandamus under the Judiciary Act of 1789. Section 13 of that act authorized the Supreme Court to issue writs of mandamus as part of the Court's original jurisdiction, rather than after an appeal from a lower court. However, the Constitution specifically provides that only a small number of cases can actually begin at the Supreme Court. Article III, Section 2, of the Constitution states, “In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction …” Marshall concluded that Congress had exceeded its authority by giving the Supreme Court the power to issue a writ of mandamus as part of its original jurisdiction. Marshall argued that the Constitution was very specific about what constituted the original jurisdiction of the Court. He concluded that the provisions of the Constitution were exclusive—that is, the Constitution stated what was permissible and by its silence indicated what was not permissible. Anything not specified in Article III, Section 2, must come to the Court through an appeal from a lower court.

The actual decision of the Court—that the Court could not issue the writ in Marbury’s favor—was not highly significant. However, Marshall used the circumstances of the case to establish the authority of the Supreme Court to strike down unconstitutional laws. Marshall also used the opinion to explain why the Court must have this power. According to Marshall: “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.”

Marshall declared that it was “emphatically the province and duty of the judicial department to say what the law is.” Furthermore, if two laws conflict, the courts must decide how those laws interact. When a law and the Constitution both apply to a case and they conflict, the courts must determine which of the conflicting rules governs the case. Because the Constitution is “superior to any ordinary act of the legislature,” the Constitution must prevail. In other words, the Court was obligated to reject any law that violated the Constitution.

VII

Aftermath

In the end Marbury did not get his commission and never became a justice of the peace in Washington, D.C. President Jefferson and Secretary of State Madison could not complain about the outcome of the case, because they won. They were not ordered to deliver the commission to Marbury. Marshall was able to declare a law of Congress unconstitutional, and he did it in a way that required no action on the part of the executive branch. Thus, Jefferson, who opposed judicial review, could not stop Marshall's opinion from having a legal effect. Most importantly, the opinion established the right, the power, and the obligation of the courts to strike down laws that violate the Constitution.

Although the outcome of Marbury seems inevitable today, at the time it was a dramatic statement of nationalism. It underscored the importance of the federal government—especially the power of the Supreme Court. Chief Justice Marshall went on to lead the Supreme Court for more than 30 years and is principally responsible for developing its power. Since 1803 the Supreme Court has cited Marbury more than 250 times. It has been used to support the outcome in many major constitutional cases involving the power of the president [Clinton v. Jones (1997) and United States v. Nixon (1974)]; the death penalty [Furman v. Georgia (1972)]; reproductive rights [Griswold v. Connecticut (1965) and Webster v. Reproductive Health Services (1989)]; relations between state and federal government [Baker v. Carr (1962) and Garcia v. San Antonio Metropolitan Transit Authority (1985)]; and civil rights [Cooper v. Aaron (1958)].

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