American Government
Marbury v Madison Summary
I. Introduction
Marbury v. Madison, landmark court case of 1803 in which the Supreme Court of the United States
established its authority to review and invalidate government actions that conflict with the
Constitution of the United States. In Marbury, Chief Justice John Marshall, speaking for a unanimous
Court, expressed for the first time the concept of judicial review at the federal level. Although the
Court’s decision concerned only a minor provision of a federal law, the case is monumentally
significant because it was the first time that the Supreme Court declared an act of Congress to be
unconstitutional. Equally significant was Marshall’s reasoning in the case.
Today Marbury is generally considered to be the most important early U.S. Supreme Court decision
and the leading precedent for the idea that the Court has the power—and the duty—to strike down
acts of Congress that violate the Constitution. While central to modern jurisprudence, the case
involved a rather technical set of facts and an issue of relatively minor importance.
II. The Election of 1800 and Adams’s Last Days
The presidential election of 1800—in which Thomas Jefferson defeated the incumbent president,
John Adams—was quite bitter. Jefferson’s supporters asserted that Adams intended to crown himself
king. Adams’s backers sharply criticized Jefferson for supporting France, especially during the
French Revolution (1789-1799), and claimed that Jefferson would set up a guillotine on Capitol Hill
to execute his opponents. Although the election was held in November 1800, under the law of the
time Jefferson—and the newly elected Congress that his party would dominate—did not take office
until March 4, 1801. In his final days as president, Adams attempted to fill the courts with members
of his party, the Federalist Party.
In January Adams appointed Secretary of State John Marshall to be chief justice of the United States.
The Senate immediately confirmed Marshall, but he remained secretary of state until the end of
Adams’s term and did not actually assume his new office until March 3, 1801. As a result, Marshall,
who would decide Marbury, was secretary of state at the time the events leading to the case took
place and was a central participant in those events.
In February, less than two weeks before Jefferson was inaugurated, the Federalist-dominated
Congress adopted—and Adams signed—two statutes that set the stage for Marbury. The first, the
Judiciary Act of 1801, created a number of new federal judgeships, which Adams promptly filled.
This law also designated two terms for the Supreme Court to hear cases—one beginning in June and
one beginning in December. (At the time, the Court conducted business until it ran out of work.
Because it heard far fewer cases then, the Court met for only a few months at a time.) In the second
act Congress created a government for the newly created national capital, the District of Columbia.
This act empowered the president to appoint justices of the peace (magistrates) for the new city.
As with most federal appointments, these justices of the peace had to be confirmed by the Senate.
After confirmation, the president would sign an official commission and the secretary of state would
affix the Great Seal of the United States to the commission and deliver it to the appointed official.
Just before leaving office, President Adams appointed a Maryland banker and politician, William
Marbury, to one of the new posts. The Senate confirmed Marbury’s appointment, President Adams
signed the commission, and Secretary of State John Marshall affixed the Great Seal on the
commission. But in the rush of business during the final days of the Adams administration, Marshall
failed to actually deliver the commission to Marbury (and at least three other appointees).
III. Marbury’s Lawsuit
Jefferson became president on March 4, 1801, and the new secretary of state was James Madison.
When Marbury and three others asked Madison for their commissions, the secretary of state, acting
under orders from President Jefferson, refused to deliver the commissions. Marbury and the others
then turned to the Supreme Court, asking it to issue a writ of mandamus ordering Secretary of State
Madison to turn over the commissions. (A writ of mandamus is a court order directing a public
official to perform his or her public duties. It applies to duties that an officeholder is required by law
to perform—rather than acts within the discretion of the officeholder.)
As a preliminary measure in the mandamus action, in December 1801 Chief Justice Marshall issued
an order to Secretary of State Madison directing him to explain why the Court should not issue the
writ compelling him to deliver Marbury’s commission. Madison was supposed to respond during the
next term of the Supreme Court, scheduled to begin in June 1802. However, in March 1802 Congress
intervened, passing the Judiciary Act of 1802. Among other things, this act changed the Supreme
Court’s schedule to one single annual term, commencing in February. When Marshall had ordered
Madison to respond to the writ of mandamus at the next term of the Supreme Court, Marshall had
assumed that the term would be six months later, in June 1802. Instead, the next term was in February
1803. Because of the Judiciary Act of 1802, the Supreme Court did not meet at all from December
1801 until February 1803.
IV. Marshall’s Dilemma
When the Supreme Court finally met, Madison ignored the Court’s order, failing to appear or to send
a lawyer to appear for him. This left Marshall in a dilemma. At this stage he might easily have
decided in favor of Marbury, especially because Madison offered no counterarguments or defense.
However, Marshall believed that Madison would ignore any order from the Supreme Court. This
would humiliate the Court and make it appear powerless.
On the other hand, to side with Madison would not ensure justice. Marshall believed that Marbury
had a legal right to his commission and that Madison had a legal duty to give Marbury the
commission. Furthermore, Marshall's political sympathies were with Marbury. They were members
of the same party and Marshall had been secretary of state in the administration that appointed
Marbury to his office.
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.
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)]. http://www.streetlaw.org//en/Page.Landmark.Marbury
After reviewing the case, answer the following questions.
1. What is the power of judicial review?
2. How was the concept of judicial review established?
3. What is original jurisdiction? What was the Supreme Courts ruling on original jurisdiction in
Marbury vs Madison?
4. What is a writ of mandamus and how did it violate the Constitution? (Specific section of the
Constitution)
5. What was declared unconstitutional by the Supreme Court in Marbury vs Madison? Why?