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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Marbury v Madison Case (US)

Sam Kalen

Judicial review of legislation — Powers and jurisdiction of constitutional courts/supreme courts — Judicial independence — Judicial review — Federal judicial systems

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  Perhaps no decision in American law is more famous than Chief Justice Marshall’s opinion in Marbury v Madison (Marbury) decided in 1803. It has since become the iconic opinion establishing the ability of the Supreme Court of the United States to review the constitutionality of statutes passed by the US Congress, and it is one of the Court’s first forays into the judiciary’s function in reviewing actions by the executive branch (judicial review; powers and jurisdiction of constitutional courts/supreme courts). Not surprisingly, therefore, the opinion carries continuing resonance with the modern Supreme Court, and indeed just between 1996 and March 2016 has been cited 66 times by the Justices. In NLRB v Noel Canning (2014) (Noel 2560), for instance, Justice Breyer invoked Marbury when explaining how it was the Court’s obligation ‘to say what the law is.’ This entry explores Marbury’s genesis, how it ought to be appreciated as part of an unfolding dialogue between the Court and the other two branches of government, the nature and holding of the decision, as well as how it has been considered by others outside the United States.

B.  The Origination of Marbury v Madison

2.  Marbury was a fruit of the struggle between the Federalists and anti-Federalists (Jeffersonian Republicans) for influence over the federal judiciary. In a classic study on this period, Richard Ellis (Ellis) portrays how the federal judiciary became embroiled in the politically charged atmosphere as the nation transitioned from Federalists to Jeffersonian Republicans. Jeffersonian Republicans believed that Federalists had captured the federal judiciary and, for instance, had allowed the Alien and Sedition Acts to be used against them. G Edward White notes how ‘[b]etween 1789 and 1801, when the Sedition Act expired, fourteen persons, most of them printers and pamphleteers sympathetic to the Republican Party, were indicted under it, and ten were convicted. Republicans believed that federal judges who heard Sedition Act cases were politically biased against the defendants’ (White 206). The eventual 1804 impeachment proceedings against Justice Samuel Chase—by all accounts an ardent Federalist—typified aspects of the conflict.

3.  Before he left office, the Federalist President John Adams nominated John Marshall to serve as the next Chief Justice of the Supreme Court. Marshall had become one of Adam’s few trusted allies (Simon 101). The new Chief Justice was sworn into office on 4 February 1801, roughly a month before President Thomas Jefferson became the Nation’s third President. At the time, John Marshall had been serving as Secretary of State for President Adams and even continued to serve for a short period after joining the Court (while James Madison was away for a funeral). Pursuant to an Act of 27 February 1801, in part creating the District of Columbia court, President Adams also issued what are now called midnight appointments for 42 justices of the peace and the new court immediately before he ceased serving as President. As one scholar describes it, ‘[o]n the night of 3 March Adams signed and Marshall countersigned the commissions that the Senate rammed through earlier in the day’ (Goldstone 164). One of those appointments included a commission for John Marshall’s brother, James. And during this same period, the Federalist controlled House of Representatives passed the Circuit Courts Act (13 February 1801) and ‘altered the federal judiciary by relieving Supreme Court Justices of circuit duty [the obligation to travel and act as circuit court judges], reducing the number of Supreme Court Justices from six to five (reportedly to keep Jefferson from appointing a replacement for Mr Justice Cushing who was ill), and establishing six new circuit courts with sixteen judges all of whom were to be appointed by Adams and quickly approved by Congress before Jefferson took office’ (Van Alstyne).

4.  Both the 27 February 1801 Act and the Circuit Court Act would converge amidst the political dynamic confronting Jefferson’s presidency. Notably, the Circuit Court Act’s provision relieving the Justices of circuit court duty appears to have been apolitical; traveling distances, after all, had become tedious and occasionally treacherous for the Justices, and at least as early 1790 the Attorney General had suggesting abolishing this requirement (see Haskins 110–127). Yet, the events under the 27 February Act would prompt Congress’ repeal of the Circuit Court Act. When President Jefferson took office, he directed that his Secretary of State not deliver several of the commissions for justices of the peace issued under the 27 February Act, including the commission for William Marbury—a Federalist ‘who had elbowed his way to wealth, influence, and notoriety’ (Sloan 19). All these commissions had been confirmed by the Senate on 3 March 1801—the day before President Jefferson was sworn in. In December 1801, Marbury and a few others went directly to the United States Supreme Court, requesting that the Court order the Secretary of State Madison to deliver the commissions. Shortly thereafter, Congress ‘overcame its doubts respecting its own authority and that of the Court, and repealed the Circuit Courts Act. To gain time to strengthen the Republican control of the national government, Congress also eliminated part of the 1802 Term of the Supreme Court, thus postponing a test of the Repeal Act’s constitutionality, of judicial review itself, and of Marbury’s case as well. All three matters awaited the Court’s determination in 1803’ (Van Alstyne). The validity of the Repeal Act would surface in Stuart v Laird (Stuart), another seminal case at the time (Ackerman), with Justice Patterson writing for the Court that it would not disturb Congress’ judgment that the Justices could be forced to ride the circuit. A much different outcome would emerge from Marbury’s case, argued on 3 February 1803.

C.  The United States Supreme Court’s Decision

5.  The Court announced its Marbury decision on the morning of Thursday 24 February 1803, while convening in the lobby at Stelle’s Hotel in Washington, DC (Sloan 149). Writing for the Court, Chief Justice Marshall opined how the case presented three questions: first, did Marbury have a right to his commission; second, if he had a right and it was violated, was he entitled to a remedy; and third, if he was entitled to a remedy, was that remedy a writ of mandamus issued by the Supreme Court? Although the initial question posed some evidentiary hurdles—precipitating even an affidavit by the Chief Justice’s brother (along with a clerk) attesting to certain facts surrounding the commission, Marshall determined that all the pre-requisites under the 17 February 1801 Act for Marbury obtaining a vested legal right—a property right—to the commission had been satisfied. As such, Marshall chastised President Jefferson by noting that ‘the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the President’ (Marbury 158). This comment, not surprisingly, appeared characteristic of the strained relationship between the Chief Justice and Jefferson (Simon 37, 145–6).

6.  Next, Marshall concluded that, if Marbury had a vested legal right to the commission, he ought to have a remedy to secure that right. ‘The very essence of civil liberty,’ he wrote, ‘certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.’ Marshall supported this point by referring to William Blackstone’s Commentaries, describing how ‘[i]n Great Britain,’ when ‘the king himself is sued in the respectful form of a petition … he never fails to comply with the judgment of his court.’ He followed this with his now-famous remark that ‘[t]he 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’ (Marbury 163). And Marshall added that the judiciary could review the legality of Executive branch actions of a non-political or ministerial nature. Conversely, political acts necessitating that the Executive exercise discretion would not be reviewable; these types of decisions, he reasoned, ‘respect the nation, not individual rights, and being entrusted to the executive’ are ‘conclusive’ (Marbury 166). Because there was no discretion left in the process for delivering Marbury’s commission, he was entitled to a judicial remedy.

7.  Marshall adroitly used the third question to simultaneously mitigate political backlash from his opinion while announcing the Court’s power to review actions of the Executive Branch as well as the constitutionality of an act of Congress. This third question required resolving whether Marbury was entitled to a writ of mandamus—an order commanding the delivery of Marbury’s commission. Marshall likely appreciated that, if the Court held that Secretary of State James Madison had to give the Marbury the commission, President Jefferson might refuse and the repercussions could tarnish the Court’s stature. Indeed, Cliff Sloan and David McKean posit that ‘[t]he crowd in Stelle’s knew that, if the Court answered yes to all three questions, a full-scale confrontation between the Supreme Court and the Jeffersonians would erupt’ (Sloan 154). To avoid such a scenario, Marshall’s opinion first concluded that a writ of mandamus would be the appropriate remedy, because the act of delivering the commission was a ministerial one. This was critical for Marshall, because he had previously expressed reluctance in allowing the judiciary to explore political questions—or, matters requiring discretion (Simon 97) (justiciability). Once again, Marshall invoked Blackstone’s Commentaries for describing how a writ of mandamus was a well-recognized judicial remedy for commanding a party to act in accordance with a clearly prescribed duty (Marbury 168). And while commanding an Executive official to perform a particular act might be ‘delicate’ (Marbury 169), a court, he added, would avoid intruding into the Executive branch’s discretion if the nature of the act was prescribed by law and afforded no discretion. That was the case here, he held.

8.  But this left the Court with having to address whether the Court would issue that remedy—and possibly trigger an undesirable reaction. Marshall mitigated the backlash by announcing the Court’s power to review the constitutionality of the statute presumably empowering the Court with the authority to award a writ of mandamus. The original Judiciary Act of 24 September 1789 (ch. 20, §13, 1 Stat. 73, 80–81), drafted primarily by Oliver Ellsworth of Connecticut and William Patterson of New Jersey, gave, in section 13, the Supreme Court ‘appellate jurisdiction from the circuit courts and courts of several states, in the cases herein after specially provided for; and shall have power to issue . . . 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). Marshall first construed this language as granting the Court jurisdiction to issue the writ. But he then held that the language exceeded the scope of the Court’s jurisdiction under the Constitution—that Art. III proscribes a ceiling on the Court’s original jurisdiction.

9.  From there, he next reasoned that the Court had the power of judicial review to declare unconstitutional a statute repugnant to the Constitution. The Constitution, he observed, is necessarily ‘paramount,’ and any law ‘repugnant’ to that superior authority must by necessity not be ‘law’ and ‘void’ (Marbury 176–7). ‘This theory is essentially attached to a written constitution,’ Marshall posited, ‘and is consequently to be considered, by this court, as one of the fundamental principles of our society’ (id). If so, it would fall on the judiciary, not only the power to construe the Constitution but also the obligation to declare unconstitutional an act otherwise repugnant to the Constitution. ‘It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule’ (Marbury 177). Otherwise, Marshall explained, the fundamental nature of ‘all written constitutions’ would be ‘subvert[ed]’ (Marbury 178). Having thus concluded that Congress could not, through the 1789 Judiciary Act, empower the Court to issue a writ of mandamus, the Court avoided directing the delivery of Marbury’s commission.

D.  Brief Assessment of Chief Justice Marshall’s Opinion

10.  While several scholars suggest that Marshall misconstrued the 1789 Judiciary Act to afford him the opportunity to announce his thoughts on judicial review and avoid directing that President Jefferson deliver the commissions, the result avoided a confrontation with Jefferson. That he may have ‘reached’ to accomplish both these ends appears supported by the presumed competence of the two primary drafters of the 1789 Judiciary Act: Oliver Ellsworth, in particular, preceded Marshall as Chief Justice, and William Patterson too had been on the Supreme Court and actively participated in the Constitutional Convention—floating the New Jersey Plan. And, moreover, the Judiciary Act, Senate Bill No. 1, was passed by the Congress most closely connected with the drafting of the Constitution. But for Marshall the outcome was positive. According to Ellis, after the decision, ‘it received very little criticism from even the most partisan of Republican newspapers. The little hostility that did exist, moreover, was directed not at the Court’s right to decide on the constitutionality of a law, but at the Chief Justice’s stigmatization of the President as a violate of the laws’ (Ellis 65–66). G Edward White offered a similar assessment, noting that the judicial review aspect of the opinion garnered the least attention (White 217). White explains how Marshall’s opinion importantly gave federal courts, many of whom were occupied by federalist judges, power to direct that the Executive obey non-discretionary legal obligations, while simultaneously avoiding a political battle with President Jefferson in Marbury’s case by a cribbed interpretation of the 1789 Judiciary Act (White 217–19). And Charles Warren similarly concluded that ‘the alleged trespass of the Judges on Presidential field of power’ is what ‘elicited the most attention from the newspapers’ (Warren 245). This is not to suggest, however, that the announcement about the Court’s judicial review power escaped all attention (Sloan 165–9). Notably, though, the Court’s decision in Stuart v Laird, decided shortly after Marbury and upholding the seemingly more controversial Repeal Act—targeting Federalist judges, further softened the result in Marbury and illustrated that the Court ‘would not use’ the power of judicial review ‘for naked political ends’ (ibid 170).

11.  Scholars nevertheless still debate whether Chief Justice Marshall correctly concluded that the US Constitution allows the Supreme Court to engage in judicial review, and invalidate an act passed by Congress (eg Goldstone). But arguably considerable justification supported Marshall’s conclusion (Treanor). Charles Warren, for instance observed how ‘the right of the judiciary to pass upon the constitutionality of Acts of Congress had not been seriously challenged until the debate in 1802 on the Circuit Court Repeal Act’ (Warren 256). Yet Ellis noted that, ‘although the concept of judicial review had the support of a number of important individuals, ... it was by no means a clearly accepted function of the court’ (Ellis). And Charles G Haines’ review of the events surrounding Marbury included an observation that Marshall allegedly had been ‘on record both as approving and condemning the doctrine of review before rendering his famous pronouncement’ (Haines 245). But at the very least, one of the United States’ principal founding ‘fathers,’ Alexander Hamilton, signalled its necessity in Federalist No. 78 (Rakove 186–7); the concept of judicial review had been raised during the Constitutional Convention; several states had already addressed the issue; and the circuit court in Hayburn’s Case (Hayburn’s) had intimated its ability to review the constitutionality of a congressional measure. There, Congress passed the Invalid Pension Act, which required that circuit judges adjudicate pension claims—a judgment which would then be reviewable first by the Secretary of War and, if rejected, by Congress. Some judges believed this Act violated principles of separation of powers, while other thought it unconstitutional—but before any final pronouncement Congress removed the offending requirement (White 199–200). Of course, it would be many years later, in fact, before the Supreme Court would directly declare an Act of Congress unconstitutional (Dred Scott).

E.  Marbury’s Reach beyond the United States

12.  Other countries too have confronted a similar dynamic animating the need to articulate the role of the judiciary and its ability to pass on the constitutionality of an act from the legislative body. Following Marbury, the issue surfaced ‘in Europe as well’ (Hofmann-Riem 693). James Crawford, for instance, writes how, although international law as of 2004 had not yet established a formal analogue to Marbury, the ‘case bears an interesting relationship to the history of constitutional review in other common law countries’ (Crawford 505, 513). He references, in particular, Australia as having employed Marbury’s principle when Australia drafted its 1890s Constitution (ibid 506). Indeed, according to Steven Koh, many courts at the international level experience a Marbury moment, when a court ‘achieve[s]’ its ‘political legitimacy’ (Koh 118–19). Koh accepts John Ferejohn’s characterization that these moments are ‘when ‘a high court asserts new jurisdiction or claims powers to control elected officials but does so in a subtle or strategic way that makes it hard for politicians to reject it’’ (Koh 120). Max Harris employed the concept of a Marbury moment when examining New Zealand’s jurisprudence (Harris). And others have used Marbury as the framework for examining whether a multi-nation-state court can review acts of a particular nation-state or other body (Puder; Watson). Koh, for instance, focuses on international tribunals, such as the European Court of Justice and its assertion of supremacy over member state law. Arguably even more expansively, others explore whether the underlying theory of constitutionalism embedded in cases like Marbury affords the judiciary with the power to review the constitutionality of a constitution-making process—including constitutional replacement (Parlett; Halmai).

13.  More particularly, the concept of judicial review flowing from Marbury expanded following World War II (Grey 481). Thomas Grey suggests that it was during this period when ‘[t]he protection of rights and the rule of law came to be seen as values closely linked to the defense of democracy, promoting an open political system and first-class citizenship for minorities’ (Grey 482). Dr. Gerhard van der Schyff similarly posits how ‘since the Second World War most systems have opted for judicial review of legislation in some shape or another,’ although ‘its democratic credentials still remain a problem for some’ (van der Schyff 48). And John Reitz adds that ‘France, Germany, and Italy all adopted forms of judicial review, and Japan accepted the idea under the strong influence of the United States,’ with ‘Greece, Portugal, and Spain’ doing so during the 1970s (Reitz). Japan, for instance, has had laws declared unconstitutional, but its use of American law and cases like Marbury is tempered, according David Law, by the Japanese Supreme Court’s apparently neutral approach toward using foreign jurisprudence (Law 956–7). When examining the Constitutional Court in Taiwan, Chien-Chih Lin posits that ‘first, judicial review in Taiwan is majoritarian, rather than counter-majoritarian; [and] second, the majoritarian propensity of judicial review in Taiwan originates from the judiciary’s legitimacy crisis after democratization, which makes it more susceptible to public opinion’ (Lin 108; majoritarianism).

14.  Indeed, a robust form of Marbury judicial review poses an important jurisprudential question for countries whose political systems locate sovereignty differently than in the United States. Does, for instance, judicial review allow judges to subvert majoritarian democracy or diminish, in those political systems, parliamentary sovereignty? Hans Kelsen, for instance, navigated such a question when developing a compromise structure, ‘graft[ing] a limited version of American-style review onto a tradition of parliamentary sovereignty, by significantly restricting the powers of the’ body entrusted with power of review, ‘and closely intertwining it with the other branches of government’ (Wenzel 595). Prior to 1920, the ‘Austrian courts had the power to test the constitutionality of statutes only in so far as the due publication of the latter was concerned,’ according to Kelsen (Kelsen 185). That changed with the centralization of judicial review accompanying the 1920 Austrian Constitution (subsequently changed), which ‘reserve[ed] the judicial review of legislation to a special court, the so-called Constitutional Court (Verfassungsgerichtshof)’ (Kelsen 186). The Constitutional Court of Austria (Verfassungsgerichtshof) may ‘annul the statute which it had found to be unconstitutional’ (Kelsen 186). The compromise was furthered by recognizing that the Constitutional Court operated in ‘a legislative function, ie, a function which, in principle, was reserved to the Parliament,’ and consequently ‘the Austrian Constitution of 1920 provided that the members of the Constitutional Court had to be elected by the Parliament and not like the other judges, to be appointed by the administration’ (Kelsen 187).

15.  Other countries also enjoy some form of Marbury-type judicial review. When exploring the role of Marbury in the ‘Canadian constitutional discourse,’ Luc Tremblay similarly notes that, since 1982, ‘Marbury has become an explicit part of the Canadian constitutional rhetoric’ (Tremblay 515). Several African constitutions, aside from any analysis of how they may operate in practice, have also afforded their judiciary with independence, such as Ghana, Namibia, and Zambia (Prempeh; Mbaku; independence of the judiciary). In a case involving a human rights issue on the provision of maternal health services, the Uganda Supreme Court favourably discussed Marbury and the role of the judiciary (the Constitutional Court) when addressing allegedly political issues (Centre for Health). The Constitution of South Africa, for instance, expressly affords its judiciary with the authority to review the constitutionality of any law or conduct (Leckey). Robert Leckey reviews how courts in South Africa and Canada, comparatively, engage in constitutional enforcement of individual rights (Leckey). But South Africa’s Constitution somewhat uniquely ‘creates a phalanx of institutions to uphold constitutional democracy and promote accountability’ (Fombad 1040). Indeed, Mark Kende opines how opinions from the Constitutional Court and the South African Supreme Court of Appeal might serve as a ‘model for judiciaries in other nations fighting to maintain their independence against skeptical political forces’ (Kende 36). And ‘Marbury,’ according to Yoram Rabin and Arnon Gutfel, ‘still reverberates in Israeli constitutional law and the rulings of Israel’s Supreme Court’ (Rabin 303). Indeed, it would appear that Marbury has been cited by the Israeli high court at least seven times (ibid 304).

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