The first landmark ruling delivered by the U.S. Supreme Court was Marbury v. Madison (1803), in which Chief Justice John Marshall asserted the power of judicial review, the authority of the federal judiciary to review the constitutionality of governmental acts, including laws passed by Congress.
Consider the fundamental impact of the power of judicial review for American Constitutionalism. In 1627, in The Five Knights Case, an important case in English legal history, the Attorney General, representing the King, asked: “Shall any say, the King cannot do this? No, we may only say, He will not do this.”
In contrast, in the United States, the power of judicial review ensures that we could say: the government cannot do this. Judicial review thus empowers the courts to enforce constitutional limitations against Congress and the president, which, in theory, protects the American people from governmental violation of the Bill of Rights and usurpation of power.
Marbury v. Madison, the greatest case in American constitutional history, precisely because it marked the Court’s first exercise of the doctrine of judicial review, in this instance, a ruling on the constitutionality of a statute passed by Congress, arose in the context of intense and divisive partisan politics between the Federalists and the Jeffersonians.
In the last hectic days of the presidency of the ardent Federalist , John Adams, who had been defeated by Thomas Jefferson in the election of 1800, the Federalist dominated Congress passed the Judiciary Act of 1801. This law created a host of new circuit court judgeships, to which Adams nominated and the Senate approved, good loyal Federalists. These judges, appointed in the last hours of the Adams Administration, were nicknamed, “the midnight judges.” A second bill, passed just days later, created new judgeships in the District of Columbia, to which Adams would, again, appoint strong Federalists.
Jeffersonian newspapers were appalled by the Federalists’ power grab, seemingly an abuse of the public will since American voters had in the election changed the political landscape by thoroughly rejecting the Federalists at the polls in favor of the Jeffersonians. The electoral upheaval led scholars to call the election, “The Revolution of 1800.”
Federalist intentions were crystal clear. They aimed to pack the courts with judges who would maintain Federalist legal principles. As Henry Adams, the eminent historian and great-grandson of President John Adams, observed, “the Federalists felt bound to exclude Republicans from the bench, to prevent the overthrow of those legal principles in which, as they believed, national safety dwelt.”
In one of his last official acts, President Adams appointed 50 Federalists to these newly minted judicial posts, including one William Marbury, as justice of the peace for the District of Columbia. Marbury was a banker, large landowner and member of prominent Maryland family.
Marbury, and the other Federalist nominees, were quickly confirmed by the Senate. Adams signed their commissions of office. As a statutory duty, it fell to the Secretary of State, John Marshall, who had just been appointed Chief Justice of the Supreme Court, to deliver the commissions. For one reason or another, perhaps because of the many duties imposed on Marshall, he failed to deliver the commissions, including Marbury’s. The new president, Thomas Jefferson, furious at Adams and the Federalists for what he perceived to be an act of usurpation, ordered his Secretary of State, James Madison, not to deliver the commissions. Jefferson believed that withholding the commissions would prevent the Federalist judges from assuming their judgeships. This order set up the basis for Marbury’s suit against Madison.
Marbury filed a suit in the Supreme Court, not in a federal district court, which is where most federal suits are initiated. Marbury asked the Court to issue a Writ of Mandamus to Secretary of State Madison, an order that would direct Madison to deliver the commissions. Marbury brought the action under section 13 of the Judiciary Act of 1789, which gave the Court original jurisdiction in mandamus cases against federal officials.
Marbury v. Madison seemed only to raise the question of whether the Court could issue the mandamus to the Secretary of State. The Court seemed to have two options. It might deny it possessed authority over the executive branch, that is, authority to order Madison, which really meant President Jefferson, to deliver the commissions. That course was unappealing because it would mean the Court was abdicating its judicial power, the authority conferred by Article 3 of the Constitution, to decide cases and controversies brought before it.
A second option, that of ordering the President to deliver the commission, seemed equally unappealing, since the Court lacked authority to enforce its ruling. Would Jefferson refuse to obey the Court’s ruling? While the principle of executive accountability to the law has since been well established, it had yet to be litigated, and Marshall may have feared a setback for the judiciary, the weakest of the three branches of the government, if Jefferson ignored such a ruling.
In what scholars have termed a masterstroke in judicial statesmanship, Chief Justice Marshall avoided both courses, including a collision with the president. Marshall, for the Court, held that section 13 of the Judiciary Act was unconstitutional since the original jurisdiction conferred upon the Court by the Article 3, could be exercised only in cases involving ambassadors, public ministers and cases involving states. The Court, he declared, might issue a mandamus, but only in cases involving its appellate jurisdiction. Congress has no authority to enlarge the Court’s original jurisdiction, which was granted by the Constitution, just as it lacks authority to change any provisions in the Constitution, except by initiating the amendatory process.
When the Court announced that section 13 was unconstitutional, on grounds that it was in conflict with Article 3 of the Constitution, it was exercising the power of judicial review for the first time in our nation’s history. Marshall wrote: “ It is emphatically the province and duty of the judicial department to say what the law is.” In a case involving a conflict of laws--in Marbury v. Madison a statute and a constitutional provision-- it is the essence of judicial duty to “say what the law is.” Given the supremacy of the Constitution, a statute in conflict with its terms is unconstitutional.
The source of the judiciary’s authority to exercise the power of judicial review, unmentioned in the Constitution, has been a source of concern for many citizens. We turn to that question next week.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.