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.