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Marbury v. Madison

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Marbury v. Madison
Seal of the United States Supreme Court.svg
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 (more)
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
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 judiciary 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 Marshall, joined by Paterson, Chase, Washington[a]
Laws applied
U.S. Const. arts. I, III; Judiciary Act of 1789 § 13

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and executive actions that contravene the U.S. Constitution. The Court's landmark decision, issued in 1803, helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

The case resulted from a petition to the Supreme Court by William Marbury, who had been appointed Justice of the Peace by President John Adams, but whose commission was not delivered before Adams left office and Thomas Jefferson became the new president. Jefferson instructed the new Secretary of State, James Madison, not to deliver Marbury's appointment. Marbury petitioned the Supreme Court to force Madison to deliver the documents. The Court, with John Marshall as Chief Justice, found firstly that Madison's refusal to deliver the commission was both illegal and correctible. Nonetheless, the Court stopped short of ordering Madison (by writ of mandamus) to hand over Marbury's commission, instead holding that the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court's original jurisdiction beyond that which Article III established.

Marbury v. Madison remains the single most important decision in American constitutional law.[1] The decision expanded the power of the Supreme Court in general, by announcing that the 1789 law which gave the Court jurisdiction in this case was unconstitutional. Marbury thus lost his case, which the Court said he should have won, but, in explaining its inability to provide Marbury the remedy it said he deserved, the Court established the principle of judicial review, i.e., the power to declare a law unconstitutional.[2]


In the fiercely contested U.S. presidential election of 1800, the three major candidates were Thomas Jefferson, Aaron Burr, and John Adams, who was the incumbent U.S. president.[1] Jefferson and Burr, the Democratic-Republican Party candidates, defeated Adams, who was a member of the Federalist Party.[3] As the results of the election became clear in early 1801,[b] Adams and the Federalists were determined to exercise their influence in the weeks remaining before Jefferson took office on March 4, 1801,[4] and they did all they could to fill federal offices with "anti-Jeffersonians" who were loyal to the Federalists.[5]

William Marbury, whose commission was not delivered before outgoing President John Adams left office.
Secretary of State James Madison, whom incoming President Thomas Jefferson instructed to withhold the undelivered commissions.

On March 2, 1801, just two days before his presidential term was to end, Adams nominated nearly 60 Federalist supporters to circuit judge and justice of the peace positions the Federalist-controlled Congress had newly created. These appointees—known as the "Midnight Judges"—included William Marbury, a prosperous financier from Maryland. An ardent Federalist, Marbury was active in Maryland politics and had been a vigorous supporter of the Adams presidency.[6]

The following day, March 3, Adams's nominations were approved en masse by the U.S. Senate. The commissions were immediately signed and sealed by Adams's Secretary of State, John Marshall, who had been named the new Chief Justice of the United States in January 1801 but continued acting as Adams's Secretary of State until Jefferson took office.[4] Marshall then dispatched his younger brother James Markham Marshall to deliver the commissions to the appointees.[4] With only one day left before Jefferson's inauguration, James Marshall was able to deliver most of the commissions, but a few—including Marbury's—were not delivered.[4]

On March 4, 1801, Thomas Jefferson was sworn in and became the 3rd President of the United States. As soon as he was able, Jefferson instructed his new Secretary of State, James Madison, to withhold the undelivered appointments.[4] In Jefferson's opinion, the commissions were void because they had not been delivered in time.[7] Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. In December 1801, Marbury filed suit against Madison in the Supreme Court, asking the Court to issue a writ of mandamus forcing Madison to deliver Marbury's commission.[4] This lawsuit resulted in the case of Marbury v. Madison.

Aside from its inherent legal complexities, the case created a difficult political dilemma for Marshall and the rest of the Supreme Court.[8] If the Court ruled in favor of Marbury and issued a writ of mandamus ordering Madison to deliver the commission, Jefferson and Madison would likely have simply ignored the order, which would have made the Court look impotent and emphasized the "shakiness" of the judiciary.[8] On the other hand, a basic ruling against Marbury would have given Jefferson and the Republican-Democrats a clear political victory.[8] In his "brilliant" decision, Marshall not only avoided both problems, but with "a touch of genius" also used the case to establish the principle of judicial review in American law.[8]


An engraving of Chief Justice John Marshall made by Charles-Balthazar-Julien Fevret de Saint-Mémin in 1808.

On February 24, 1803, the Court rendered a unanimous (4–0)[a] decision against Marbury. The Court's opinion was written by the Chief Justice, John Marshall.[c] Marshall structured the Court's opinion around a series of three questions that Marshall answered in turn:

  • First, did Marbury have a right to his commission?
  • Second, if Marbury had a right to his commission, was there a legal remedy for him to obtain it?
  • Third, if there was such a remedy, could the Supreme Court legally issue it?[9]

Marbury's commission and legal remedy

The Court quickly answered the first two questions affirmatively.

First, Marshall wrote that Marbury had a right to his commission because all appropriate procedures were followed – the commission had been properly signed and sealed.[10] Madison contended that the commissions were void if not delivered; the Court disagreed, and said that the delivery of the commission was merely a custom, not an essential element of the commission itself.[10]

The [President's] signature is a warrant for affixing the great seal to the commission, and the great seal is only to be affixed to an instrument which is complete. [...] The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment, which must precede it and which is the mere act of the President.

— from Marbury v. Madison, 5 U.S. at 158, 160.

Because Marbury's commission was valid, Marshall wrote, Madison's withholding of it was "violative of a vested legal right" on Marbury's part.[11]

Turning to the second question, the Court said that the laws clearly afforded Marbury a remedy. As a general matter, Marshall said, American laws provide remedies: "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."[12] The specific issue, however, was whether the courts—part of the judicial branch of the government—could give Marbury a remedy against Madison—who as Secretary of State was part of the executive branch of the government.[11] The Court held that so long as the remedy involved a mandatory duty to a specific person, and not a political matter left to discretion, the courts could provide the legal remedy.[11] In a now well-known line of the opinion, Marshall wrote: "The government of the United States has been emphatically termed a government of laws, and not of men."[13]


After concluding that Marbury had a right to his commission and that a legal remedy existed to provide it to him, the Court then turned to whether or not it was proper for the Supreme Court to issue the writ Marbury requested. Marshall first reiterated the distinction between the executive branch's political discretion, which he said the courts could not review, and its legally mandated ministerial duties, which the courts could review.[14]

Marshall then addressed the most important issue of the opinion: the propriety of the Supreme Court's jurisdiction over the matter. Marbury argued that the Judiciary Act of 1789 gave the Supreme Court original jurisdiction over his case.[15]

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.

— Judiciary Act of 1789, Section 13 (excerpt)

Marshall's discussion of this issue first explains the difference between original jurisdiction, in which a court has the power to be the first to hear and decide a case, and appellate jurisdiction, in which a party to a decision appeals to a higher court which has the power to review the previous decision and then either affirm or overturn it.[16] Because Marbury filed his suit directly with the Supreme Court, the Court would need to exercise original jurisdiction to hear it; if the Court's jurisdiction over writs of mandamus was limited to appellate jurisdiction only, it would be unable to properly hear and decide Marbury's directly-filed case, since it had not been first heard in a lower court and then appealed to the Supreme Court.

The Court agreed with Marbury, and interpreted the relevant section of the Judiciary Act to authorize mandamus on original jurisdiction.[17] However, Marshall noted that this authorization clashed with Article III of the U.S. Constitution, which establishes the judicial branch of the U.S. government.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, 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.

— U.S. Constitution, Article III, Section 2.

This section of Article III of the Constitution establishes that the Supreme Court has original jurisdiction in cases where a U.S. State is a party to the lawsuit, or where the lawsuit involves foreign dignitaries. Neither of these categories covered Marbury's justice of the peace commission, and so, according to the Constitution, the Court could only have heard Marbury's case while exercising appellate jurisdiction.[16][17] Since Marshall interpreted the Judicial Act to have given the Court original jurisdiction over the matter, this meant that the Judicial Act apparently expanded the initial scope of the Court's original jurisdiction. Marshall ruled that Congress cannot increase the Supreme Court's original jurisdiction as it was set down in the Constitution, and therefore that the relevant portion of Section 13 of the Judiciary Act violated Article III of the Constitution.[17]

Judicial review

Inscription on the wall of the Supreme Court Building from Marbury v. Madison, in which Chief Justice John Marshall outlined the concept of judicial review.

After ruling that it conflicted with the Constitution, Marshall struck down the relevant portion of the Judiciary Act in the U.S. Supreme Court's first ever declaration of the power of judicial review.[16][18] Marshall's justification for the Court's judicial review power began with a long disquisition on the hierarchy between statutory law and constitutional law.[16] Marshall held "virtually as a matter of iron logic" that in the event of conflict between the Constitution and statutory laws passed by Congress, the constitutional law must be supreme.[16]

The Court's opinion gives a number of reasons in support of judicial review. Marshall stated that deciding the constitutionality of the laws it applies is an inherent part of the American judiciary's role.[17] In what has become the most frequently quoted line of the opinion, Marshall wrote: "It is emphatically the province and duty of the judicial department to say what the law is."[19] Marshall reasoned that the U.S. Constitution places limits on the American government's powers, and that those limits would be meaningless unless they were subject to judicial review and enforcement.[20] The written nature of the Constitution, he wrote, inherently established judicial review.[21] In a line borrowed from Alexander Hamilton's essay Federalist No. 78, Marshall wrote: "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written."[22]

In another argument borrowed from Federalist No. 78, Marshall stated that "a law repugnant to the Constitution is void", and that the judiciary had no choice but to follow the Constitution.[23] Marshall also argued that the authorization in Article III of the Constitution that the Court can decide cases arising "under this Constitution" implied that the Court had the power to strike down laws conflicting with the Constitution.[20] Lastly, Marshall argued that judicial review is implied in Article VI of the Constitution, since it declares the supreme law of the United States to be not the Constitution and the laws of the United States in general, but rather the Constitution and laws made "in Pursuance thereof".[24]


Chief Justice John Marshall's opinion in Marbury established the power of the judiciary to review the constitutionality of legislation and certain executive actions in American law, a power known as "judicial review".[15] Judicial review was rarely exercised in early American history: after the Marbury decision in 1803, the U.S. Supreme Court did not strike down another federal law until 1857, when the Court struck down the Missouri Compromise in the now-infamous case of Dred Scott v. Sandford, a ruling that contributed to the outbreak of the American Civil War.[24]

The power of judicial review over U.S. executive branch actions only extends to matters in which the executive has a legal duty to act or refrain from acting, and does not extend to matters that are entirely within the U.S. president's discretion, such as whether to veto a bill or whom to appoint to an office.[15] This power has been the basis of many subsequent important Supreme Court decisions in American history, such as the 1974 case United States v. Nixon, in which the Court held that President Richard Nixon was required to comply with a subpoena to provide tapes of his conversations for use in a criminal trial, and which ultimately led to Nixon's resignation.[15]


Jefferson disagreed with Marshall's reasoning in this case:

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.[25][26][27]

Some legal scholars have questioned the legal reasoning of Marshall's opinion. They argue that Marshall selectively quoted the Judiciary Act of 1789, interpreting it to grant the Supreme Court the power to hear writs of mandamus on original jurisdiction.[28] 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.[29] Furthermore, it has been argued 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".[30]

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.[31]

Marbury has also been criticized on the grounds that it was improper for the Court to consider any issues beyond jurisdiction. After concluding that the Court lacked jurisdiction in the case, the further review regarding the substantive issues presented was arguably improper.[32] Also, it has been argued that Justice Marshall should have recused himself on the grounds that he was still acting Secretary of State at the time the commissions were to be delivered and it was his brother, James Marshall, who was charged with delivering a number of the commissions.[33]

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.[citation needed] Despite such criticisms of Marbury v. Madison, judicial review has been accepted in the American legal community.

On the other hand, the Constitution, unlike the Articles of Confederation, created an independent judiciary, and gave it power to resolve matters arising under the Constitution, controversies between two states, and disputes between the federal government and a state, suggesting[by whom?] that the Framers of the Constitution intended the court to act as, in effect, an arbitrator, to whose decisions the parties appearing before it would be bound.

See also


  1. ^ a b Due to illnesses, Justices William Cushing and Alfred Moore did not sit for oral argument or participate in the Court's decision.
  2. ^ Prior the invention of the telegraph in the mid-19th century and computing machines in the late 19th and early 20th centuries, it took several months for election ballots to be collected, counted, and the results tabulated.
  3. ^ Notwithstanding the widely acknowledged brilliance of his opinion, it can be questioned whether Marshall should have recused himself from the case due to his conflict of interest. Marshall was the acting Secretary of State when the nominations were made, and he himself had signed the commissions and had been responsible for their delivery.[9]



  1. ^ a b Chemerinsky (2015), p. 37.
  2. ^ McBride, Alex (December 2006). "The Supreme Court, The Court and Democracy, Landmark Cases, Marbury v. Madison (1803)". Thirteen/WNET New York. Retrieved 22 September 2017. 
  3. ^ Chemerinsky (2015), pp. 37–38.
  4. ^ a b c d e f Chemerinsky (2015), p. 38.
  5. ^ McCloskey & Levinson (2010), p. 25.
  6. ^ Miller (2009), p. 44.
  7. ^ Pohlman (2005), p. 21.
  8. ^ a b c d McCloskey & Levinson (2010), p. 26.
  9. ^ a b Chemerinsky (2015), p. 39.
  10. ^ a b Chemerinsky (2015), pp. 39–40.
  11. ^ a b c Chemerinsky (2015), p. 40.
  12. ^ Chemerinsky (2015), p. 40, quoting Marbury, 5 U.S. at 162.
  13. ^ Chemerinsky (2015), p. 40, quoting Marbury, 5 U.S. at 163.
  14. ^ Chemerinsky (2015), pp. 40–41.
  15. ^ a b c d Chemerinsky (2015), p. 41.
  16. ^ a b c d e Epstein (2014), p. 89.
  17. ^ a b c d Chemerinsky (2015), p. 42.
  18. ^ Currie (1997), p. 53.
  19. ^ Chemerinsky (2015), p. 42, quoting Marbury, 5 U.S. at 177.
  20. ^ a b Chemerinsky (2015), p. 43.
  21. ^ Prakash & Yoo (2003), p. 914.
  22. ^ Chemerinsky (2015), p. 43, quoting Marbury, 5 U.S. at 176.
  23. ^ Epstein (2014), p. 90, quoting Marbury, 5 U.S. at 180.
  24. ^ a b Chemerinsky (2015), p. 44.
  25. ^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820).
  26. ^ James Taranto, Leonard Leo (2004). Presidential Leadership. Wall Street Journal Books. ISBN 978-0-7432-7226-1. Retrieved 2008-10-20. 
  27. ^ Thomas Jefferson (1830). Memoir, correspondence, and miscellanies, from the papers of Thomas Jefferson. Gray and Bowen. pp. 372–375. 
  28. ^ Reinstein, Robert J. (2004-04-01). "Marbury's Myths: John Marshall, Judicial Review and the Rule of Law". bepress Legal Series.  Working Paper 230.
  29. ^ Full text of the Judiciary Act of 1789 Archived 2005-08-26 at the Wayback Machine.
  30. ^ Stone, Geoffrey R. (2005). Constitutional Law (5 ed.). New York: Aspen Publishers. pp. 29–51. ISBN 0-7355-5014-X. 
  31. ^ Bickel, Alexander (1962). The Least Dangerous Branch. Indianapolis: Bobbs-Merrill. ISBN 978-0-300-03299-4. Retrieved May 26, 2011. 
  32. ^ Chemerinsky, Erwin (2006). Constitutional Law: Principles and Policies (3rd ed.). New York: Aspen Publishers. p. 41. ISBN 0-7355-5787-X. 
  33. ^ Sullivan, Kathleen M.; Gunther, Gerald (2007). Constitutional Law. New York: Foundation Press. ISBN 978-1-59941-246-7. 

Works cited

  • Chemerinsky, Erwin (2015). Constitutional Law: Principles and Policies (5th ed.). New York: Wolters Kluwer. ISBN 978-1-4548-4947-6. 
  • Currie, David P. (1997). The Constitution in Congress: The Federalist Period 1789–1801. Chicago: University of Chicago Press. 
  • Edlin, Douglas (2008). Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review. Ann Arbor: University of Michigan Press. ISBN 0-472-11662-2. 
  • Epstein, Richard A. (2014). The Classical Liberal Constitution: The Uncertain Quest for Limited Government. Cambridge, MA: Harvard University Press. ISBN 978-0674724891. 
  • Fletcher, George P.; Sheppard, Steve (2004). American Law in Global Perspective: The Basics. Oxford University Press. ISBN 0-19-516723-6. 
  • Henretta, James A.; David Brody; Lynn Dumenil (2007). America's History: Volume 1: To 1877 (6th ed.). Boston: Bedford/St. Martin's. ISBN 978-0-312-45285-8. 
  • McCloskey, Robert G.; Levinson, Sanford (2010). The American Supreme Court (5th ed.). Chicago: University of Chicago Press. ISBN 978-0-226-55686-4. 
  • McDowell, Gary L. (1993). "Coke, Corwin and the Constitution: The 'Higher Law Background' Reconsidered". The Review of Politics. Cambridge University Press. 55 (3). doi:10.1017/s0034670500017605. ISSN 0034-6705. 
  • Miller, Mark Carlton (2009). The View of the Courts from the Hill: Interactions Between Congress and the Federal Judiciary. Charlottesville: University of Virginia Press. 
  • Pohlman, H. L. (2005). Constitutional Debate in Action: Governmental Powers. Lanham: Rowman & Littlefield. ISBN 0-7425-3593-2. 
  • Prakash, Saikrishna; Yoo, John (2003). "The Origins of Judicial Review". University of Chicago Law Review. 70 (3): 887–982. doi:10.2307/1600662. 
  • Smith, Jean Edward (1996). John Marshall: Definer of a Nation. New York: Henry Holt & Company; New York. ISBN 978-0-8050-1389-4. 
  • Stone, Geoffrey R. (2005). Constitutional Law (5th ed.). New York: Aspen Publishers. ISBN 0-7355-5014-X. 
  • Sullivan, Kathleen M.; Gunther, Gerald (2007). Constitutional Law. New York: Foundation Press. ISBN 978-1-59941-246-7. 
  • Treanor, William Michael (2005). "Judicial Review Before Marbury". Stanford Law Review. 58 (2): 455–562. JSTOR 40040272. 

Further reading

  • Smith, Jean Edward (1989). The Constitution And American Foreign Policy. St. Paul, MN: West Publishing Company. ISBN 0-314-42317-6. 
  • 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.  (Claims 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.)
  • 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. ISBN 0-8071-3249-7. 
  • James M. O'Fallon, The Case of Benjamin More: A Lost Episode in the Struggle over Repeal of the 1801 Judiciary Act, 11 Law & Hist. Rev. 43 (1993).
  • Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press. pp. 1–16. ISBN 978-0-8070-0036-6. 
  • Sloan, Cliff; McKean, David (2009). The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court. New York, NY: PublicAffairs. ISBN 1-58648-426-5. 

External links

  • Text of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is available from:  Cornell  Findlaw  Justia  OpenJurist 
  • Primary Documents in American History: Marbury v. Madison from the Library of Congress
  • "John Marshall, Marbury v. Madison, and Judicial Review—How the Court Became Supreme" Lesson plan for grades 9–12 from National Endowment for the Humanities
  • 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
  • Case Brief for Marbury v. Madison at
  • The short film Marbury v. Madison (1977) is available for free download at the Internet Archive
  • "Supreme Court Landmark Case Marbury v. Madison" from C-SPAN's Landmark Cases: Historic Supreme Court Decisions
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