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Marbury v. Madison

Marshall Proclaims The Doctrine Of Judicial Review

On 24 February 1803 Marshall issued the Court's opinion. Marshall proceeded in three steps. First, he reviewed the facts of the case. Marshall stated that Marbury had the right to receive his commission:

To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested right.

Second, Marshall analyzed Marbury's legal remedies. He concluded that the Judiciary Act clearly entitled Marbury to the writ of mandamus he requested. Marshall's third and final question, therefore, was whether the writ of mandamus could be issued by the Supreme Court. Although the Judiciary Act would allow the Court to issue the writ, Marshall was concerned about the Court's authority under Article III, Section 2, Paragraph 2 of the Constitution, which states:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a Party, the Supreme Court shall have original jurisdiction. In all other cases . . . the Supreme Court shall have appellate jurisdiction . . .

If the Court did not have original jurisdiction, then under the Constitution Marbury could not go directly to it to get his requested writ of mandamus. He would have to go to a federal district court, and only if he lost there could he then appeal to the Supreme Court under its appellate jurisdiction. As Marshall stated:

To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction . . .

Marshall now addressed the critical question of whether the Court would use the authority that the Judiciary Act granted it, but that the Constitution denied it, to issue Marbury's writ of mandamus. Marshall said no, it would not. No act of Congress, including the Judiciary Act, could do something forbidden by the Constitution:

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

Therefore, because the Judiciary Act violated the Constitution, it was unenforceable. Marbury and the others could not get their writ of mandamus from the Court because their petition had been sent to the Court directly, not on appeal. In declaring the Judiciary Act unconstitutional, Marshall set forth for the first time the doctrine of judicial review. Judicial review means that the federal courts, above all the Supreme Court, have the power to declare laws unenforceable if they violate 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 the rule. If two laws conflict with each other, the courts must decide on the operation of each.

Marshall's decision meant that the Court would not give his fellow Federalist Marbury the writ of mandamus. Nevertheless, it was a brilliant move. In refusing to confront Jefferson, Marshall had asserted a new and potent power for the judiciary, namely the doctrine of judicial review. Despite various issues, such as whether Marshall should have removed himself from the case because of his role as Adams's secretary of state, Marbury v. Madison permanently established the principle of judicial review. This power to overturn unconstitutional laws is the basis for the courts' power today to prevent such evils as civil rights violations.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1637 to 1832Marbury v. Madison - Significance, Marbury Goes To Court, Marshall Proclaims The Doctrine Of Judicial Review, Justice Alfred Moore