Marbury v. Madison: What Did
John Marshall Decide and Why?1
LOUIS H. POLLAK
United States District Judge, Eastern District of Pennsylvania
M
Y ASSIGNMENT, as Justice Souter has explained, is to
talk about Marbury v. Madison2—the case itself, as distinct
from the jurisprudential antecedents of Chief Justice Marshall’s decision, or the subsequent impact of the decision on the law
here and overseas, which are matters discussed by the other panelists.
Concretely, my assignment is to examine just what it is that John Marshall decided, and why. To understand the case, we must go back to
December of 1800, a year before the case itself was initiated.
As December of 1800 began, President John Adams might have
taken satisfaction in having just completed the transfer of the government of the United States from the old city of Philadelphia to the new
District of Columbia. But December soon turned out not to be a good
month for the president. The last returns from the Electoral College had
trickled in. Voting state by state, the electors had, by a narrow margin,
rejected Adams’s bid for reelection. Further, Adams’s Federalists had
lost both the Senate and the House to Thomas Jefferson’s hated Republicans. As of 4 March 1801, both the White House and Congress
would be in the hands of the enemy.3
1 Read
26 April 2003.
U.S. (1 Cranch) 137 (1803).
3 Two aspects of the 1800 presidential election warrant special mention:
1. Although, as of December 1800, it was clear that the next president would be a
Republican, it was not clear for another two months whether that Republican was to be
Jefferson, the party leader, or his ticket-mate, Aaron Burr. The reasons for this remarkable
and extended uncertainty as to the identity of the next president were as follows:
Under the original constitutional provisions governing presidential elections (Art. 2, § 1)
each member of the Electoral College was to cast two votes, the person with the most votes
becoming president, and the person with the next most votes vice-president. This worked
satisfactorily for the first two elections, in which Washington was the essentially unanimous
choice for the presidency and his loyal colleague, Adams, a distant second in the balloting,
was elected to the vice-presidency. But in 1796 the Electoral College elected Adams president
and his chief opponent, Jefferson, vice-president—not a recipe for harmonious administration
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louis h. pollak
So, as of December of 1800, it was apparent that, effective the
following March, only the judicial branch of the federal government
would remain in Federalist hands. But then, in that gloomy December,
that too fell into question. Oliver Ellsworth, the chief justice of the
United States, and a staunch Federalist, resigned. So it was a matter of
first importance to the Federalists that Ellsworth’s successor be nominated and confirmed forthwith, lest the selection of the head of the
nation’s judiciary fall to the wild-eyed Republicans. Adams promptly
tendered the appointment to his good friend John Jay, the first chief
justice, who had resigned in 1795 to become governor of New York.
“In the future administration of our country,” Adams wrote to Jay,
of the nation’s affairs. And during Adams’s presidency the political infighting between Adams
(ambivalently supported by Alexander Hamilton), on the one hand, and Jefferson (seconded
by James Madison), on the other hand, had crystallized in the distinct national political
parties’—Federalist and Republican— contending not merely for individual candidates, but
for national party ascendancy. This set the stage for the 1800 elections.
In the 1800 elections, the Federalist ticket paired the incumbent president, Adams of
Massachusetts, seeking re-election, with Charles Cotesworth Pinckney of South Carolina.
The Republican ticket paired the incumbent vice-president, Jefferson of Virginia, now
seeking the presidency, with Burr of New York. The results in the Electoral College were as
follows: Jefferson 73, Burr 73, Adams 65, Pinckney 64. The Constitution provided that in
the event of a tie in the Electoral College the election of the president devolved upon the House
of Representatives (with each state delegation collectively exercising a single vote). One
might have expected Burr to defer to the head of his party, asking his friends in the House of
Representatives to vote for Jefferson. But he did not do so. For five days—and thirty-five
ballots—the voting was even. Finally, on 17 February, only two weeks before inauguration
day, Jefferson was elected president and Burr vice-president.
To avoid a repetition of this electoral shambles, the Constitution was quickly amended.
The Twelfth Amendment, ratified in 1804, required separate Electoral College ballots for
president and vice-president.
2. In a recent essay, The Negro President, appearing at pages 45–51 of the 6 November
2003 issue of the New York Review of Books, Garry Wills states and defends the proposition
that Jefferson’s electoral victory in 1800 did not signify that a majority of those who cast
ballots voted for Jefferson rather than Adams (pp. 45, 48, footnotes omitted): “If real votes
alone had been counted, Adams would have been returned to office. But, of course, the ‘vote’
did not depend solely on voters. Though Jefferson, admittedly, received eight more votes than
Adams in the Electoral College, at least twelve of his votes were not based on the citizenry
that could express its will but on the blacks owned by Southern masters. A bargain had been
struck at the Constitutional Convention—one of the famous compromises on which the
document was formed, this one intended to secure ratification in the South. The negotiated
agreement . . . decreed that each slave held in the United States would count as three fifths of
a person in setting the members of the Electoral College.
“It galled the Federalists that Jefferson hailed his 1800 victory as a triumph of democracy
and majority rule when, as the newspaper Mercury and New England Palladium of Boston
said (January 20, 1801), he had made his ‘ride into the TEMPLE OF LIBERTY, on the
shoulders of slaves.’ He was president only because of ‘somber’ or ‘sable’ nonvotes, and
the Columbian Centinel noted (December 24, 1800) that the half-million slaves affecting the
outcome had no more will in the matter than ‘New England horses, hogs, and oxen.’
Timothy Pickering, the former secretary of state under Washington and Adams, coined the
term ‘Negro President’ . . . .”
MARBURY V. MADISON
3
“the firmest security we can have against the effects of visionary
schemes or fluctuating theories will be in a solid Judiciary.” 4 But Jay
declined the nomination: he was unwilling to return to a job that had
chiefly involved not presiding over the Supreme Court at its occasional
sessions half a block from here, in Old City Hall, but traveling circuit
to sit, as a trial judge, in one or another of the federal circuit courts. 5
So Adams then turned to his loyal colleague, the senior member of his
administration, the forty-five-year-old secretary of state, John Marshall.
Marshall had, in prior years, declined nominations tendered by Adams
to other prestigious legal posts—attorney general, and associate justice
of the Supreme Court—but he accepted this nomination with alacrity.
Despite some grumbling from a few “High Federalist” senators—members
of Hamilton’s anti-Adams faction—Marshall’s nomination was quickly
confirmed. He was sworn in as chief justice on 4 February 1801. But,
at Adams’s request, the chief justice also continued to serve as secretary
of state through 3 March, the last day of the administration. This conjunction of judicial and cabinet posts was to provide intriguing context
for the lawsuit captioned Marbury v. Madison.
The grievance that was to mature as Marbury v. Madison had its
inception in the closing days of the Adams presidency. On 13 February
1801, less than three weeks before the inauguration of the new president, the lame-duck Congress and lame-duck president completed
action on a new judiciary act6 that radically altered the system that had
4 Letter of John Adams to John Jay, 19 December 1800. Charles Warren, 1 The Supreme
Court in United States History (1922) 172. Adams’s generous letter to his old friend deserves
fuller quotation: “I have nominated you to your old station. This is as independent of the
inconstancy of the people as it is of the will of a President. In the future administration of our
country, the firmest security we can have against the effects of visionary schemes or
fluctuating theories will be in a solid Judiciary; and nothing will cheer the hopes of the best
men so much as your acceptance of this appointment. You have now a great opportunity to
render a most signal service to your country. . . . I had no permission from you to take this
step, but it appeared to me that Providence had thrown in my way an opportunity, not only
of marking to the public the spot where, in my opinion, the greatest mass of worth remained
collected in one individual, but of furnishing my country with the best security its inhabitants
afforded against the increasing dissolution of morals.” Id.
5 Jay, in responding to Adams, was emphatic: “[T]he efforts repeatedly made to place the
Judicial Department on a proper footing have proved fruitless. I left the Bench perfectly
convinced that under a system so defective, it would not obtain the energy, weight and
dignity which are essential to its affording due support to the National government, nor
acquire the public confidence and respect which, as the last resort of the justice of the nation,
it should possess. Hence, I am induced to doubt both the propriety and the expediency of
returning to the Bench, under the present system; especially as it would give some countenance
to the neglect and indifference with which the opinions and remonstrances of the Judges on
this important subject have been treated. . . .” Letter of John Jay to John Adams, 2 January
1801. 1 Warren, op. cit. supra, note 4, at 173.
6 2 Stat. 89 (1801).
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louis h. pollak
been in place since the first Judiciary Act in 1789. 7 The justices of
the Supreme Court were relieved of their duties as circuit-riding trial
judges—a reform long overdue. To take their place, sixteen circuit
judgeships were created. In conformity with the Constitution’s solicitude
for the federal judiciary, these were appointments for “good behavior”—
i.e., for life, subject only to impeachment for high crimes and misdemeanors. Adams promptly nominated and the Senate promptly confirmed sixteen circuit judges: most of these so-called “midnight judges”
appear to have been professionally well qualified, and certain it is that
all were politically well qualified—i.e., they were all good Federalists. 8
On 27 February 1801, Congress and President Adams completed action
on an “Act Concerning the District of Columbia”:9 a statute providing
institutions of governance for the district, composed of scraps of Maryland and Virginia—including Georgetown and a portion of Alexandria—
that had as of a few months before become the capital of the United
States. The statute created a circuit court for the District of Columbia,
paralleling the circuit courts for the rest of the country established by
the act of 13 February. Of the three judges named to this court, one
was James Marshall, John Marshall’s brother, and another was William Cranch, Abigail Adams’s nephew. The District of Columbia Act
also authorized the president to appoint, for terms of five years, up to
forty-two justices of the peace, officials authorized to perform certain
minor ministerial functions and to try suits involving no more than
twenty dollars. Adams’s nominations for these insignificant positions
were confirmed by the Senate on 2 March. On 3 March Adams signed
the commissions for the new justices of the peace and sent them to the
office of Secretary of State Marshall to have the seal of the United
States affixed.
On the next day—4 March 1801—Chief Justice Marshall swore in
Thomas Jefferson—a second cousin once removed whom Marshall
cordially disliked, and who cordially disliked him—as the third president of the United States.
In a letter written in 1823, twenty years after Marbury v. Madison,
Jefferson recalled how the case began:
Among the midnight appointments of Mr. Adams, were commissions
to some federal justices of the peace for Alexandria. These were
signed and sealed by him, but not delivered. I found them on the table
of the department of State, on my entrance into office, and I forbade
their delivery. Marbury, named in one of them, applied to the Supreme
71
Stat. 73 (1789).
See Kathryn Turner, The Midnight Judges, 109 U. Pa. L. Rev. 494 (1961).
9 2 Stat. 103 (1801).
8
MARBURY V. MADISON
5
Court for a mandamus to the Secretary of State, (Mr. Madison) to
deliver the commission intended for him.10
Mandamus is one of those terms like habeas corpus and res ipsa
loquitur that we lawyers have filched from ancient Rome and that we
delight in. They make us feel more like Cicero. Mandamus, of course,
10 Letter of Thomas Jefferson to William Johnson, 12 June 1823. Thomas Jefferson,
Writings (Library of America, 1984) 1474. Although Jefferson identified only Marbury as
having started a lawsuit, there were in fact three others—William Harper, Robert Townsend
Hooe, and Dennis Ramsay—who joined Marbury as plaintiffs, they too alleging that they had
been duly appointed by President Adams as justices of the peace and that their commissions
had been wrongly withheld by Secretary Madison. The ensuing litigation addressed the
claims of all the plaintiffs, but by the time the Supreme Court’s opinion was announced by
Marshall the focus of the case, as reflected in Marshall’s opinion, had narrowed to Marbury.
Jefferson’s description, quoted in the text, of the inception of Marbury v. Madison is
excerpted from a very long letter Jefferson wrote just three years before his death. The
addressee, William Johnson, was a Supreme Court justice (and one of considerable distinction)
appointed by Jefferson in 1804, who served as a judicial colleague of Marshall’s for thirty
years. The bulk of Jefferson’s letter is an extended criticism of certain Marshall opinions for
the Court that, in Jefferson’s view, improperly intruded upon matters reserved by the
Constitution to the states. The discussion of Marbury v. Madison is something of a detour,
since that case did not involve a tug-of-war between federal and state authority, nor did
Jefferson present it as such. Jefferson cited Marbury v. Madison (decided a year before
Johnson was appointed to the Court) as a further example of what Jefferson deemed
Marshall’s improper conduct in frequently including in his opinions dicta that dealt with
issues not required to be decided. Jefferson’s succinct summary and critique of the genesis of
Marbury v. Madison and of Marshall’s opinion, written two decades after the event, suggests
that the way in which Marshall handled a case which (as we will see, infra) he in fact decided
in Secretary of State Madison’s—and hence Jefferson’s—favor was something that stuck in
Jefferson’s craw for the rest of his life. Jefferson’s compendious assessment of Marbury v.
Madison deserves quotation in full: “This practice of Judge Marshall, of travelling out of his
case to prescribe what the law would be in a moot case not before the court, is very irregular
and very censurable. I recollect another instance, and the more particularly, perhaps, because
it in some measure bore on myself. Among the midnight appointments of Mr. Adams, were
commissions to some federal justices of the peace for Alexandria. These were signed and
sealed by him, but not delivered. I found them on the table of the department of State, on my
entrance into office, and I forbade their delivery. Marbury, named in one of them, applied to
the Supreme Court for a mandamus to the Secretary of State, (Mr. Madison) to deliver the
commission intended for him. The court determined at once, that being an original process,
they had no cognizance of it; and therefore the question before them was ended. But the Chief
Justice went on to lay down what the law would be, had they jurisdiction of the case, to wit:
that they should command the delivery. The object was clearly to instruct any other court
having the jurisdiction, what they should do if Marbury should apply to them. Besides the
impropriety of this gratuitous interference, could anything exceed the perversion of law? For
if there is any principle of law never yet contradicted, it is that delivery is one of the essentials
to the validity of the deed. Although signed and sealed, yet as long as it remains in the hands
of the party himself, it is in fieri only, it is not a deed, and can be made so only by its delivery.
In the hands of a third person it may be made an escrow. But whatever is in the executive
offices is certainly deemed to be in the hands of the President; and in this case, was actually
in my hands, because, when I countermanded them, there was as yet no Secretary of State.
Yet this case of Marbury and Madison is continually cited by bench and bar, as if it was
settled law, without any animadversion on its being merely an obiter dissertation of the Chief
Justice.” Thomas Jefferson, Writings, op. cit. supra, at 1474.
6
louis h. pollak
simply means “we command”; it is a writ by which a court orders
somebody to do something. William Marbury, an affluent local citizen
in good Federalist standing, evidently eager to be recognized as Mr.
Justice of the Peace, filed his application for mandamus in December of
1801. Representing Marbury was Charles Lee, who had served as attorney general under both Washington and Adams, and who had declined
appointment to one of the midnight circuit judgeships. Lee was a third
cousin once removed of Marshall’s, and a good friend. In filing the mandamus action in the Supreme Court, Lee was invoking language in Section 13 of the first Judiciary Act, a section of the 1789 statute that had, in
four sentences, described the authority of the Supreme Court. The first
two sentences of Section 13 tracked provisions of Article 3 of the Constitution describing two categories of very special, and concomitantly infrequent, cases that, because of their presumed sensitivity and importance,
were consigned to the Supreme Court’s “original Jurisdiction,” meaning
that they were to be tried in the Supreme Court in the first instance,
rather than tried in a lower court and brought to the Supreme Court on
appeal. As contemplated by the Constitution, the “original Jurisdiction”
cases were (1) “Cases affecting Ambassadors [and] other public Ministers” of foreign countries, and (2) “those [Cases] in which a State shall be
Party.”11 The third sentence of Section 13 specified that trials in the
Supreme Court should be by jury for “actions at law”—e.g., suits for
damages as distinct from suits for some form of equitable relief. The
fourth sentence of Section 13 contained the language on which Lee relied:
The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after
specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and
maritime jurisdiction, and writs of mandamus, in cases warranted by
the principles and usages of law, to any courts appointed, or persons
holding office, under the authority of the United States.
Since James Madison, Jefferson’s secretary of state, was a “person[]
holding office, under the authority of the United States,” this was, in
Lee’s view, a proper case for mandamus.
On the day in December of 1801 that Lee filed the mandamus
application styled Marbury v. Madison, the chief justice inquired of
Jefferson’s attorney general, Levi Lincoln,12 who happened to be in the
11 U.S.
Const., Art. 3, § 2.
a Massachusetts Republican, was attorney general through Jefferson’s first
term, and then, in 1805, returned home to intermittent public service. In 1811, at Jefferson’s
urging, President Madison nominated Lincoln to be a justice of the Supreme Court, and
Lincoln was quickly confirmed by the Senate, but he declined the appointment.
12 Lincoln,
MARBURY V. MADISON
7
courtroom, whether he had anything to say. Lincoln advised the Court
that he had no instructions from Secretary Madison, the defendant in
Marbury’s case. Accordingly, the Court entered an order directing
Madison to respond at the Court’s next term, scheduled for June 1802.
But, as things fell out, the Court was not to reconvene until February
of 1803. This was a by-product of large doings in the Republican Congress that took place in the spring of 1802. In March the Republicandominated Congress repealed the judiciary act passed by the Federalistdominated Congress just a year before—thereby abolishing the newly
created circuit courts, with the intent, and presumably the effect, of
extinguishing the sixteen Federalist circuit judgeships.13 Soon thereafter Congress passed a new judiciary act that substantially restored
the judicial landscape as it had existed prior to enactment of the 1801
act.14 The justices were once again to ride circuit. But there was some
anxiety in Republican ranks about the constitutionality of what had
been done. Could a circuit judge appointed with life tenure be legislatively dismissed (or perhaps the better word would be “disappointed”)
after only a year on the bench? And what if the justices of the Supreme
Court, briefly liberated from circuit-riding, balked at being put back in
harness in what the Constitution refers to as “inferior courts”? To
delay—and thereby, perhaps, preclude—a potentially adverse response
from the Supreme Court, Congress took the remarkable step of eliminating the Court’s 1802 sittings. And thus it was not until 1803 that
Marbury v. Madison came to trial. When Lee rose to begin his presentation on 10 February, Madison had filed no response to the application for mandamus, nor had he instructed the attorney general to
appear for him. The proceeding was non-adversary.
Lee presented witnesses and affidavits adequate to establish that
Marbury had been nominated and that a commission in his name had
been signed by the former president and sealed by the former secretary
of state. Lee did not call as a witness the person most likely to have an
accurate recollection of what commissions were in the office of the secretary of state on 3 March 1801. Lee presumably felt that it would be
less in his client’s interest that Marshall take the witness stand than
that he remain in the center chair. Nor did Lee call as a witness the person most likely to have an accurate recollection of what commissions
were in the office of the secretary of state on 4 March 1801 and the
days immediately following—the person who “found them on the table
of the department of State, on my entrance into office.” There was
13 2
14 2
Stat. 132 (1802).
Stat. 156 (1802).
8
louis h. pollak
every reason to suppose that the president of the United States, if called
as a witness, would have ignored a subpoena.15 Lee, on 11 February,
completed his evidentiary presentation, and then presented his legal
argument. Attorney General Lincoln had still not been directed by
Madison to appear on his behalf, so Lincoln made no reply. The Court
recessed, the justices reserving decision.
In retrospect, we can parse the dilemma the Court faced as it pondered whether to grant Marbury’s unopposed application. Marshall
and his colleagues doubtless recognized that if the Court were to order
Madison to produce Marbury’s commission, or a copy thereof, Madison
would, on Jefferson’s instruction, simply disregard the order, thereby
confirming, for all to see, the powerlessness of the highest court in
the land. Thus, the Court had to devise a scenario that would dismiss
the claims advanced by Marbury, the Federalist standard-bearer, but
would at the same time appear to bring a measure of balm to the wounds
15 Lee did call Attorney General Lincoln to the witness stand. In the absence of secretary
of state-designate Madison, who did not arrive in Washington until a short time after the new
administration took office, the attorney general had briefly served as acting secretary of state,
starting about 5 March 1803. Lee wanted to ask Lincoln what he knew about what had
happened to the various justice-of-the-peace commissions. Lincoln “respected the jurisdiction
of this Court,” 5 U.S. (1 Cranch) at 143, but, nonetheless, contended that it was not
appropriate for him to be required to give testimony. He “felt himself bound to maintain the
rights of the executive,” and therefore “ought not to answer, as to any facts which came
officially to his knowledge while acting as secretary of state.” Id. Moreover, “[h]e ought not
to be compelled to answer anything which might tend to criminate himself.” Id. Ruling on
Lincoln’s objections, “The Court said, that if Mr. Lincoln wished time to consider what
answers he should make, they would give him time; but they had no doubt he ought to
answer. There was nothing confidential required to be disclosed. If there had been, he was
not obliged to answer it; and if he thought that anything was communicated to him in
confidence, he was not bound to disclose it; nor was he obliged to state anything which
would criminate himself; but that the fact whether such commissions had been in the office
or not could not be a confidential fact; it is a fact which all the world have a right to know.”
Id. at 144.
The interaction between the attorney general and the Court on whether a cabinet member
could be required to give testimony was a modest introduction to controversies over the
scope of what is now termed “executive privilege” that have been a recurrent feature of
litigation in the Supreme Court and lower courts over the past two centuries.
The Court’s ruling that Lincoln, the attorney general, when called as a witness in the civil
case pending before the Court, was entitled to invoke the privilege against self-incrimination,
was notable, given that the pertinent language of the Fifth Amendment—“No person . . .
shall be compelled in any criminal case to be a witness against himself”—could quite readily
be read to be a directive confined to criminal cases (and, in particular, to signify that a
criminal defendant could not be called to the witness stand by the prosecution).
In the event, Lincoln’s testimony turned out to be of no particular consequence. He
recalled that during his brief tenure as acting secretary of state he had seen some justice-ofthe-peace commissions that President Adams had signed, to which the seal of the United
States had been affixed. But he did not remember which persons the commissions were for,
and he was uncertain whether the commissions “ever came to the possession of Mr. Madison”
or “were in the office, when Mr. Madison took possession of it.” Id.
MARBURY V. MADISON
9
Marbury had suffered at the hands of Jefferson and Madison. Marshall’s eleven-thousand-word opinion, announced on 24 February 1803,
only thirteen days after the argument, achieved both ends.
First, the signing and sealing of Marbury’s commission were, Marshall stated, the acts that completed the appointment, and since the
appointment was to a post with a five-year term, “the appointment
was not revocable, but vested in the officer legal rights, which are protected by the laws of his country. To withhold his commission, therefore, is deemed by the court not warranted by law, but violative of a
vested legal right.”16 (This pronouncement that Madison, and, by clear
implication, Jefferson, had mistreated Marbury—a dictum that was to
turn out to be irrelevant to the disposition of the case—deeply offended
Jefferson; moreover, to the end of his life lawyer Jefferson felt that
Marshall was wrong on the law—in Jefferson’s view an appointment
was only complete when a commission was delivered to the appointee.)17
Second, to repair the wrong done Marbury, a writ of mandamus
directed to the secretary of state was, Marshall reasoned, a proper remedy.
The secretary was, to be sure, a senior official whose principal duties
involved discretionary actions with respect to matters of important
national policy, and for these actions the secretary was accountable only
to the president, not to the courts. But with respect to a ministerial
function such as making available a public record that was in his official custody, or a copy of such a record, the secretary was amenable to
the orders of a court. Thus, Marshall established the vocabulary for
distinguishing actions of the other branches of government that are
subject to judicial oversight from those that are not. In the two centuries
since Marbury v. Madison, the Supreme Court and the lower courts
have had frequent occasion to try to give precise content to that vocabulary, and the task is not yet quite finished.
Third, Marshall acknowledged that Section 13 of the 1789 Judiciary
Act appeared to authorize the Supreme Court to issue a writ of mandamus to the secretary of state, a public official, in a proper case. But
Marshall ruled that the statutory provision could not be squared with
the description of the Supreme Court’s authority contained in the Constitution. Issuing an order directing the secretary of state to do something would not be an exercise of the Supreme Court’s appellate authority,
since the secretary was not a lower court. Nor would such an order fit
within the Supreme Court’s authority as a trial court, since the Constitution precisely defined the Supreme Court’s “original Jurisdiction”—
16 5
U.S. (1 Cranch) at 162.
Jefferson’s critique of Marbury v. Madison, quoted supra, note 10.
17 See
10
louis h. pollak
i.e., its trial court jurisdiction—as consisting of cases involving high
officials of foreign nations and cases to which a state is a party. Marbury’s case was neither of those.
That posed for Marshall a question upon which the text of the
Constitution shed no light—namely, whether a law duly enacted by
Congress and inconsistent with the Constitution was nonetheless valid.
The question was one Marshall characterized as “deeply interesting to
the United States; but, happily, not of an intricacy proportioned to its
interest.”18 The answer to the question, Marshall concluded, was clearly
in the negative. To say that such a law would be enforceable would
undercut the very reason for having a written Constitution that places
limits on legislative power. And were the courts proper instrumentalities for deciding whether a law and the Constitution were in conflict?
Yes, they were. “It is,” Marshall declared, “emphatically, the province
and duty of the judicial department to say what the law is.” 19 Marshall
had here reached high ground—ground staked out by Hamilton back
in 1788, in the sacrosanct Federalist 78, in explaining that only a judiciary staffed by judges with life tenure would have the independence to
judge the constitutionality of laws enacted by the stronger legislative
branch. “The interpretation of the laws,” Hamilton had written, “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.”20 Marshall didn’t quote—or even cite—Hamilton. He didn’t need to.
18 5
U.S. (1 Cranch) at 176.
Id. at 177.
20 The Federalist (Modern Library, 1937) at 506. Five years after Hamilton’s pronouncement, Justice Iredell, in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 433 (1793), voiced,
in dictum, his understanding that his Court would be required, in a proper case, to declare
“void” a law enacted by Congress that exceeded congressional authority under the
Constitution: “I conceive, that all the courts of the United States must receive, not merely
their organization as to the number of judges of which they are to consist; but all their
authority, as to the manner of their proceeding, from the legislature only. . . . Having a right
thus to establish the Court, and it being capable of being established in no other manner, I
conceive it necessarily follows, that [Congress] are also to direct the manner of its
proceedings. Upon this authority, there is, that I know, but one limit; that is, ‘that they shall
not exceed their authority.’ If they do, I have no hesitation to say that any act to that effect
would be utterly void, because it would be inconsistent with the Constitution, which is a
fundamental law, paramount to all others, which we are not only bound to consult, but
sworn to observe; and therefore, where there is an interference, being superior in obligation
19
MARBURY V. MADISON
11
Having announced that the judiciary had the authority to declare
void a statute found incompatible with the Constitution, Marshall, for
the Court, held that Congress—the first Congress, in 1789, not Jefferson’s Congress—had behaved unconstitutionally in attempting, in Section 13 of the First Judiciary Act, to enlarge the Supreme Court’s
powers beyond constitutional limits by authorizing the Court, as a trial
court, to entertain suits for mandamus against public officials. The
Supreme Court had no choice but to stay within proper constitutional
limits and dismiss Marbury’s suit—and strike down a law of Congress.
This was judicial modesty—“judicial restraint” may be the more familiar term—cloaking judicial aggression.
Take note that Marshall and his colleagues were not required to
conclude that Section 13 was unconstitutional. They could have read
the Constitution’s definition of the Supreme Court’s original jurisdiction as setting a floor for the Court’s jurisdiction as a trial court but not
a ceiling—i.e., precluding Congress from cutting back on Supreme
Court trial jurisdiction deemed by the Framers to be indispensable for
national purposes, but not precluding Congress from adding to that
jurisdiction. That resolution would, however, have been distinctly
uncomfortable for the Court. It would have meant that Marbury would
have been entitled to have the Court issue the requested mandamus
writ. But it also would have put the Court in a posture of no-win confrontation with President Jefferson.
There was another way for the Court to avoid declaring Section 13
unconstitutional. A second look at the structure and wording of Section 13 might have prompted the Court to find that Section 13’s mandamus provision was not a grant of jurisdiction to try mandamus
actions, but simply an assurance to the Court that in a lawsuit, whether
trial or appellate, otherwise before the Court, the Court had authority
to issue an order of mandamus to a public official when that was an
appropriate form of remedy. Such a disposition would have made dismissal of Marbury’s case proper. But such a disposition would seem to
to the other, we must unquestionably obey that in preference.” Justice Iredell’s words have
the flavor of Hamilton, and they refer to a hypothetical scenario that seemed to prefigure the
sort of issue—legislation conferring on the Supreme Court jurisdiction not contemplated by
Article 3—that was to be presented to the Court in Marbury v. Madison. But Justice Iredell
was speaking only for himself, not for the Court as a whole. With Justice Iredell’s dictum may
be contrasted Justice Chase’s circumspection five years later, in Calder v. Bull, 3 U.S. (3 Dall.)
385, 392: in his opinion, speaking only for himself, he found it appropriate to refrain from
“giving an opinion, at this time, whether this court has jurisdiction to decide that any law
made by Congress, contrary to the constitution of the United States, is void.”
Justice Iredell, appointed to the Court by President Washington in 1790, died in 1799,
before Marshall was named chief justice. Justice Chase, appointed by Washington in 1796,
served until his death in 1811; he participated in Marbury v. Madison.
12
louis h. pollak
fit comfortably at the threshold of the Court’s opinion rather than at
the close. And dismissal of Marbury’s lawsuit at the opinion’s inception
would have obviated Marshall’s elaborate obiter dictum preachment on
the lawlessness of the withholding of Marbury’s commission. Arguably,
of course—and, indeed, Jefferson was later to argue it forcefully21—the
Court’s actual holding with respect to the unconstitutionality of Section 13 made any observations on the merits of Marbury’s case dictum
that the Court should have eschewed. But it can be argued in the
Court’s defense that it was proper to explore the merits with a view to
seeing whether the case could have been disposed of without reaching
momentous issues regarding the propriety of judicial review of an act
of Congress. In any event, disposing of the case by construing Section
13 as not intended to enlarge the Court’s original jurisdiction would
have robbed the Court of the opportunity to announce the propriety,
and indeed necessity, of the practice of judicial review.
On 2 March 1803, six days after announcing the opinion in Marbury v. Madison, the Court decided a case entitled Stuart v. Laird.22
That case, which came to the Court on appeal, presented the constitutional challenges, feared by the Republicans, to the 1802 laws that
repealed the 1801 Federalist reorganization of the federal courts and
reinstated most of the features of the 1789 Judiciary Act. There were
two serious constitutional issues. First, could Congress abolish the
1801 circuit court system and in the process terminate life-tenured
judges? Second, could Congress require Supreme Court justices to sit
on circuit courts as ordinary trial judges, especially given the Court’s
holding in Marbury v. Madison, only six days before, that Congress
could not add to the original jurisdiction of the Supreme Court
described in the Constitution? The attorney for appellant was Charles
Lee. Lee was appealing, on his client Hugh Stuart’s behalf, an adverse
judgment of John Marshall sitting in a circuit court restored by the
1802 Act, Marshall having rejected the argument that the 1802 laws
extinguishing the 1801 circuit courts and reestablishing the prior circuit courts were unconstitutional and hence that Marshall’s circuit
court did not exist. Marshall did not participate in the Supreme Court’s
review of his decision. Marshall’s dismissal of the challenge to the
1802 act was affirmed in a brief, almost cursory, opinion by Justice
Paterson. Paterson did not mention the abolition of the 1801 circuit
judgeships, perhaps for the reason that Stuart, the appellant, was not
one of the disappointed judges and hence lacked standing to complain.
21 See
22 5
note 10, supra.
U.S. (1 Cranch) 299 (1803).
MARBURY V. MADISON
13
Whether it was constitutional for Congress to require Supreme Court
justices to sit as trial judges was an issue that had been resolved in the
affirmative, so Paterson held, by many years of settled judicial arrangements: “[T]he question is at rest, and ought not now to be disturbed.” 23
Thus, the Marshall Court, in Marbury v. Madison, announced and
exercised the power of judicial review to strike down a legislative act in
a case whose merits—a claim to an insignificant job—were essentially
inconsequential and whose formal disposition—a declination of expanded
judicial authority—did not challenge the political party holding sway
in the legislative and executive branches. And the same Court, within a
week, refrained in Stuart v. Laird from striking down a legislative act
that massively reconfigured the judicial branch to effectuate ends vital
to that dominant political party.
Fifty-four years were to go by before the Supreme Court next invalidated an act of Congress. That next instance was Dred Scott,24 which,
like Brown v. Board of Education25 a century later, was to change the
course of the nation’s history.
23 Id.
at 309.
Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
25 347 U.S. 483 (1954).
24 Dred