Marbury v. Madison

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Marbury v. Madison
Supreme Court of the United States
Argued February 11, 1803 Decided February 24, 1803
Full case name: William Marbury v. James Madison, Secretary of State of the United States Citations: 5 U.S. 137; 5 U.S. (1 Cranch) 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352 Prior history: Original action filed in U.S. Supreme Court; order to show cause why writ of mandamus should not issue, December, 1801 Subsequent history: None
Holding
Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. Congress cannot pass laws that are contrary to the Constitution, and it is the role of the Federal courts to interpret what the Constitution permits.
Court membership
Chief Justice: John Marshall Associate Justices: William Cushing, William Paterson, Samuel Chase, Bushrod Washington, Alfred Moore
Case opinions
Majority by: Marshall Joined by: Paterson, Chase, Washington Cushing and Moore took no part in the consideration or decision of the case.
Laws applied
U.S. Const. arts. I, III; Judiciary Act of 1789 § 13

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)^[1], is a landmark case in United States law and the basis for the exercise of judicial review of Federal statutes by the United States Supreme Court under Article Three of the United States Constitution.

The case resulted from a petition to the Court by William Marbury, who had been appointed as Justice of the Peace in the District of Columbia by President John Adams shortly before leaving office, but whose commission was not delivered as required by John Marshall, Adams's Secretary of State. When Thomas Jefferson assumed office, he ordered the new Secretary of State, James Madison to withhold Marbury's and several other mens' commissions. Marbury and three others petitioned the Court to force Madison to deliver the commission to Marbury. The case was ultimately unsuccessful for Marbury, who never became a Justice of the Peace in the District of Columbia.

Contents 1 Background of the case 1.1 Status of the judicial power before Marbury 2 Relevant law 2.1 U.S. Const. art. III, § 2 Clause 2 2.2 Judiciary Act of 1789, § 13 3 The issue 4 The decision 5 Criticisms 6 Notes 7 References and further reading 8 External links

[edit] Background of the case

In the Presidential election of 1800, Thomas Jefferson defeated John Adams, becoming the third U.S. President. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, Adams and the Federalist-controlled U.S. Congress were still in power. Congress passed a new Judiciary Act, creating a number of new courts to be controlled by the Federalists.

On March 2, Adams appointed 42 Federalists to these courts while sitting as a lame duck on the second-to-last day of his term. The following day, on March 3, the judges were approved by the Senate. One of these "Midnight Judges" was William Marbury, appointed to a position as Justice of the Peace in the District of Columbia. On March 4, Adams left office and Jefferson was inaugurated as President.

Marbury's commission, as well as those of others who were part of the lawsuit, were signed by Adams and John Marshall, his Secretary of State. To be effective, however, the commissions had to be delivered to them. It fell to John Marshall to carry out this task, but he did not deliver Marbury's commission. As a complication of matters, Marshall had been appointed as Chief Justice of the Supreme Court of the United States on February 4, but had continued to act as Secretary of State until Jefferson was inaugurated. On March 3, Marshall became Chief Justice, and swore in Jefferson.

Jefferson treated as void 25 of the 42 commissions approved on Inauguration Day, including Marbury's, because they had not been officially delivered by day's end; some scholars have suggested that it was actually an attempt to reduce expenses by cutting judicial salaries. Jefferson appointed James Madison as the new Secretary, and ordered him not to deliver the Marbury commission. Marbury filed suit against Madison to force him to deliver it.

At this point in the country's history, the Supreme Court had been very limited in its exercise of its powers. Chief Justice Marshall knew that if the Court decided for Marbury, Jefferson would almost certainly ignore the decision—a result that would further erode the court's authority. Such a result arguably occurred about 30 years later when Marshall ruled in Worcester v. Georgia, which struck down Georgia laws affecting the Cherokees and President Andrew Jackson refused to compel the state of Georgia to abide by the decision. He is famously, but apocryphally, reported to have said, "John Marshall has made his decision. Now let him enforce it."

Though this is an influential interpretation of Marbury, some scholars disagree with the notion that Marshall was afraid of a confrontation between the Executive and Judicial branches.^[2] First, in Marbury itself, Marshall took a bold move against the Executive branch by issuing a show cause order to James Madison. Second, only a few years after Marbury was decided, Marshall subpoenaed Jefferson himself in the Burr treason case. Lastly, there is evidence within the Marbury opinion itself that indicates Marshall would have expected compliance by the President with a contrary ruling ("[the king] never fails to comply with the judgment of his court.").^[3]

Although Marbury v. Madison was the first case in which the U.S. Supreme Court exercised the power of judicial review, it was a narrowly based decision: It declared unconstitutional a power which Congress sought to grant to the Court itself, and it was found to conflict with Article III of the Constitution, which governs the Federal courts. Marbury thus lies at the intersection between judicial review in the modern sense and the older theory that each branch of government is responsible (to the people) for keeping its own acts within the bounds of constitutionality. (Jackson held that he had no constitutional power to enforce Worcester v. Georgia, for example.) No general Federal law was struck down until Dred Scott v. Sandford in 1857, more than half a century later. However, the Court treated the decision with deference: between 1804 and 1894, Marbury was cited in 49 separate opinions in the United States Supreme Court. Of these, 24 citations extend or reiterate Marbury's jurisdictional holding.

[edit] Status of the judicial power before Marbury

The power of judicial review is often thought to have been created in Marbury but the general idea has ancient roots. The idea that courts could nullify statutes probably has its roots in Chief Justice Edward Coke's 1610 opinion in Dr. Bonham’s Case, 8 Co. Rep. 107a. That decision arose under a statute of Parliament enabling the London College of Physicians to levy fines against anyone who violated their rules. The College accused a doctor of practicing without a license and fined him accordingly. Coke found that their statutory powers violated "common right or reason" because "no person should be a judge in his own case."

The idea that courts could declare statutes void waxed and then waned in England, but it was well known in the American colonies and in the bars of young states, where Coke's books were very influential. The doctrine was specifically enshrined in some state constitutions, and by 1803 it had been employed in both State and Federal courts in actions dealing with state statutes. (See, e.g., Bayard v. Singleton, 1 NC (Martin) 5 (1787); Whittington v. Polk, 1 H. & J. 236 (Md.Gen. 1802) (Samuel Chase, J.); State v. Parkhurst, 9 N.J.L. 427 (N.J. 1802); Respublica v. Duquet Shippen, 2 Yeates 493 (Pa. 1799); Williams Lindsay v. East Bay Street Com’rs, 2 Bay (S.C.L.) 38 S.C.Const.App. 1796)(Thomas Waties, J.).; Ware v. Hylton, 3 Dallas (3 U.S.) 199 (1796); Calder v. Bull, 3 Dallas (3 U.S.) 386 (1798); Cooper v. Telfair, 4 Dallas (4 U.S.) 14 (1800); Vanhorne’s Lessee v. Dorrance, 28 F. Cas. 1012, 2 Dallas (2 U.S.) 304; 1 L. Ed. 391; C. Pa. 1795).)^[4]

Some legal scholars argue that the concept of judicial review and the legal basis for it predate the case, and that Marbury merely formalized it. For example, Saikrishna Prakash and John Yoo argue that during the ratification of the Constitution, "[N]o scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing."^[5]

However, it is important to note that nothing in the text of the Constitution explicitly authorized the power of judicial review, despite persistent fears voiced by Anti-federalists over the power of the new Federal court system.

The concept was also laid out by Hamilton in Federalist No. 78:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits 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 meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.^[6]

[edit] Relevant law

[edit] U.S. Const. art. III, § 2 Clause 2

"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. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

[edit] Judiciary Act of 1789, § 13

"The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts . . . and writs of mandamus . .  to any courts appointed, or persons holding office, under the authority of the United States."

[edit] The issue

There are two ways the Supreme Court can hear a case: (1) filing directly in the Supreme Court; or (2) filing in some lower court, such as a district court, and appealing all the way up to the Supreme Court. The first is an exercise of the Court's original jurisdiction; the second is appellate jurisdiction.

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 case in order to have the power to hear it. However, the Constitution specifically enumerates in Article III what types of cases the Supreme Court can hear under its original jurisdiction. Most legal scholars agree that Marbury's case does not fit into any of those categories of cases.

Marbury's argument is that in the Judiciary Act of 1789, Congress granted the Supreme Court original jurisdiction over petitions for writs of mandamus. This raises several issues that Marshall has to address:

• Does Article III of the Constitution create a "floor" for original jurisdiction, that Congress can add to, or does it create an exhaustive list that Congress can't modify at all?
• If Article III's original jurisdiction is an exhaustive list, but Congress tries to modify it anyway, who wins that conflict, Congress or the Constitution? And, more importantly, who is supposed to decide who wins? In his answer to this last question, Marshall formalizes the notion of judicial review.

In short, the constitutional issue of Marbury v. Madison is whether Congress can change the original jurisdiction of the Supreme Court.

[edit] The decision

The Court rendered a unanimous (4-0) decision on February 24, 1803.^[7] Chief Justice Marshall wrote the opinion of the court. Marshall presents the case as raising three distinct questions:

1. Did Marbury have a right to the petition?
2. Do the laws of the country give Marbury a legal remedy?
3. Is asking the Supreme Court for a writ of mandamus the correct legal remedy?

Marshall quickly answers the first two questions affirmatively. Marshall finds that the failure to deliver the commission was "violative of a vested legal right."

In deciding whether Marbury has a remedy, Marshall states "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." One of the key legal principles established by Marbury is the notion that for every violation of a vested legal right, there must be a legal remedy. Marshall next describes two distinct types of Executive actions: political actions where the official can exercise discretion, and purely ministerial functions where the official is legally required to do something. Marshall finds that delivering the appointment to Marbury was a purely ministerial function required by law, and therefore the law provides him a remedy.

Note: It has become the tradition in U.S. judicial opinions that issues of jurisdiction are addressed first. If a court does not have the power to hear a case, it will not issue dicta. Chief Justice Marshall, however, did not address jurisdictional issues until addressing the first two questions presented above, most likely because the jurisdictional issue here also happened to be the constitutional issue. Because of the canon of constitutional avoidance (i.e., where a statute can fairly be interpreted so as to avoid a constitutional issue, it should be so interpreted), courts generally deal with the constitutional issues last.

In analyzing the third question, Marshall first examines the Judiciary Act of 1789 and determines that the Act purports to give the Supreme Court original jurisdiction over writs of mandamus. Marshall then looks to Article III of the Constitution, which defines the Supreme Court's original and appellate jurisdictions (see Relevant Law above). Marbury had argued that the Constitution was only intended to set a floor for original jurisdiction that Congress could add to. Marshall disagrees and holds that Congress does not have the power to modify the Supreme Court's original jurisdiction. Consequently, Marshall finds that the Constitution and the Judiciary Act conflict.

This conflict raises the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answers that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looks to the nature of the written Constitution—there would be no point of having a written Constitution if the courts could just ignore it. "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?"^[8] Marshall also argues that the very nature of the judicial function requires courts to make this determination. Since it is a court's duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other, a court must decide which law applies.^[9] Finally, Marshall points to the judge's oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution" before the "laws of the United States." Part of the core of this reasoning is found in the following statements from the decision:

It is emphatically the province and duty of the judicial department [the courts] to say what the law is. Those [judges] who apply the rule [of law] 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 [e.g., a statute or treaty] 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.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law [e.g., the statute or treaty].

This doctrine would subvert the very foundation of all written constitutions.

5 U.S. at 177-78.

[edit] Criticisms

A minority of legal scholars have raised questions about the logic Marshall used in determining the Judiciary Act unconstitutional, and hence the legitimacy of judicial review. They reason that Marshall selectively quoted the Judiciary Act, interpreting it to grant the Supreme Court the power to hear writs of mandamus on original jurisdiction. These scholars argue that there is little connection between the notion of original jurisdiction and the Supreme Court, and note that the Act seems to affirm the Court's power to exercise only appellate jurisdiction^[10]. Furthermore, that the Supreme Court should have been able to issue the writ on original jurisdiction based on the fact that Article III of the Constitution granted it the right to review on original jurisdiction "all cases affecting . . . public ministers and consuls," and that James Madison, Secretary of State at the time and defendant of the suit, should have fallen into that category of a "public minister [or] consul."^[11]

Questions have also frequently been raised about the logic of Marshall's argument for judicial review, for example by Alexander Bickel in his book The Least Dangerous Branch. Bickel argues that Marshall's argument implies an unrealistically mechanical view of jurisprudence, one which suggests that the Court has an absolute duty to strike down every law it finds violative of the Constitution. Under Marshall's conception of the judicial process in Marbury, judges themselves have no independent agency and can never take into account the consequences of their actions when deciding cases—a notion that has been attacked by Richard Posner. More generally, Marshall's argument for the notion of a judicial obligation to strike down laws "repugnant to the constitution" presupposes some sort of underlying meaning to the text of the U.S. Constitution which judges can divine, a notion contested by scholars Paul Brest and Duncan Kennedy, among others, as well as Posner.

Because the Constitution lacks a clear statement authorizing the Federal courts to nullify the acts of coequal branches, critics contend that the argument for judicial review must rely on a significant gloss on the Constitution's terms. Despite such criticisms of Marbury v. Madison, judicial review has been accepted in the American legal community.

[edit] Notes

[edit] References and further reading

• Marbury v. Madison. ^[1]
• Smith, Jean Edward (1996). John Marshall: Definer Of A Nation. Henry Holt & Company. (An excellent and the most modern objective interpretation)
• Smith, Jean Edward (1989). The Constitution And American Foreign Policy. St. Paul, MN: West Publishing Company.
• Nelson, William E. (2000). Marbury v. Madison: The Origins and Legacy of Judicial Review. University Press of Kansas. ISBN 0-7006-1062-6. (One introduction to the case)
• Clinton, Robert Lowry (1991). Marbury v. Madison and Judicial Review. University Press of Kansas. ISBN 0-7006-0517-7. (Presents a contrarian reading of the case, claiming that it is a mistake to read the case as claiming a judicial power to tell the President or Congress what they can or cannot do under the Constitution. The conventional reading of Marbury interprets it as granting a much broader scope of judicial authority.)
• Irons, Peter (1999). A People's History of the Supreme Court. Penguin Books, pp 104-107. ISBN 0-14-029201-2.
• Newmyer, R. Kent (2001). John Marshall and the Heroic Age of the Supreme Court. Louisiana State University Press.

[edit] External links

1. ^ Full text of the decision courtesy of Findlaw.com
2. ^ See Louise Weinberg, Our Marbury, 89 Va. L. Rev. 1235 (2003).
3. ^ See Weinberg, 89 Va. L. Rev., at 1260-97 for a detailed discussion of these and other arguments.
4. ^ George Fletcher and Steve Sheppard, American Law in Global Perspective: The Basics 132-34 (Oxford University Press, 2004) (ISBN 0-19-516723-6).
5. ^ Yoo and Prakash, "The Origins of Judicial Review," University of Chicago Law Review, Vol. 69, Summer 2003
6. ^ Full text of Federalist No. 78 from thomas.loc.gov
7. ^ Due to illness, Justices William Cushing and Alfred Moore did not sit for oral argument or participate in the Court's decision.
8. ^ 5 U.S. (1 Cranch) at 176.
9. ^ Id. at 177.
10. ^ Full text of the Judiciary Act of 1789
11. ^ Geoffrey R. Stone, et al., Constitutional Law: 29-51 (Aspen Publishers, 2005) (ISBN 073555014)

• Marbury v. Madison decision from LII-Cornell Law School
• The 200th Anniversary of Marbury v. Madison: The Reasons We Should Still Care About the Decision, and The Lingering Questions It Left Behind
• The Establishment of Judicial Review
• The 200th Anniversary of Marbury v. Madison: The Supreme Court's First Great Case