Marbury v.

Madison (1803)
Historical Background
The Constitution called for the creation of a federal government with the following three branches, or parts: legislative, executive, and
judiciary. Article I created Congress, the legislative, or lawmaking, body. Article II established the office of the President, who executes, or
carries out, the laws. Article III created the federal court system consisting of one Supreme Court and other lower courts.
As with most aspects of the U.S. Constitution, the meaning of Article III was left open to interpretation. In 1789, shortly after the Constitution
was ratified, Congress passed the Judiciary Act of 1789, which established the federal court system. Congress created a Supreme Court,
three circuit courts, and 13 district courts. There was one district court for each of the 13 states.
The Constitution did not specify the number of justices that could be appointed to the Supreme Court. Through the Judiciary Act, though,
Congress provided for a Chief Justice and five Associate Justices. However, the Constitution and Congress left the scope of the Court's
power undefined. These powers would gradually be defined through the Court's interpretation of the Constitution in particular cases.
The earliest Chief Justices had very little impact on the direction of the Supreme Court. But John Marshall, who served from 1801 to 1835,
influenced the action of the Supreme Court in ways still felt in the United States today. Early in Marshall's term as Chief Justice, a seemingly
insignificant case came before the Supreme Court. However, that case, Marbury v. Madison, became one of the most important Supreme
Court decisions in United States history.
Circumstances of the Case
In November 1800, President John Adams, a Federalist, lost his bid for reelection to Thomas Jefferson, a Republican. The Federalists also
lost control of Congress in the election. For the few months before the new President and Congress took office, however, Adams and his
Federalist Party still had control.
During these months, Adams persuaded Congress to pass a new law, the Judiciary Act of 1801. This act gave Adams the power to appoint
several new federal judges. The Federalists hoped to fill the nation's courts with people who would be opposed to the policies of the incoming
Republican administration.
Adams was generally successful in this effort, appointing some 39 new judges. Adams's Secretary of State was to deliver the commissions,
or official documents authorizing the appointments. The Secretary of State, though, failed to deliver the commissions to three new justices of
the peace before Adams's term of office ended. One of the commissions was to go to William Marbury.
When Thomas Jefferson became President in March 1801, he learned of Adams's attempt to pack the court with Federalist judges. He also
discovered the failure to deliver the remaining commissions. To prevent these Federalists from becoming justices of the peace, Jefferson
instructed his Secretary of State, James Madison, to refuse the appointments.
Marbury went to the Supreme Court in an attempt to gain his post. He wanted the Court to issue an order forcing Madison to give Marbury
his commission. The Judiciary Act of 1789 had given the Supreme Court the power to issue such an order.
The Court's Decision
In a unanimous decision, written by Justice Marshall, the Court stated that Marbury, indeed, had a right to his commission. But, more
importantly, the Judiciary Act of 1789 was unconstitutional. In Marshall's opinion, Congress could not give the Supreme Court the power to
issue an order granting Marbury his commission. Only the Constitution could, and the document said nothing about the Supreme Court
having the power to issue such an order. Thus, the Supreme Court could not force Jefferson and Madison to appoint Marbury, because it did
not have the power to do so.
While Marbury never became a justice of the peace, the Court's ruling in Marbury v. Madison established a very important precedent. A
precedent is a legal decision that serves as an example in later court cases. Chief Justice Marshall's ruling interpreted the Constitution to
mean that the Supreme Court had the power of judicial review. That is, the Court had the right to review acts of Congress and, by extension,
actions of the President. If the Court found that a law was unconstitutional, it could overrule the law. Marshall argued that the Constitution is
the supreme law of the land and that the Supreme Court has the final say over the meaning of the Constitution. He wrote, lt is emphatically
the province and duty of the judicial department to say what the law is.

Summary of Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803).

Facts
On his last day in office, President John Adams named forty-two justices of the peace and sixteen new circuit court justices for the District of
Columbia under the Organic Act. The Organic Act was an attempt by the Federalists to take control of the federal judiciary before Thomas
Jefferson took office.
The commissions were signed by President Adams and sealed by acting Secretary of State John Marshall (who later became Chief Justice
of the Supreme Court and author of this opinion), but they were not delivered before the expiration of Adamss term as president. Thomas
Jefferson refused to honor the commissions, claiming that they were invalid because they had not been delivered by the end of Adamss
term.
William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury applied directly to the Supreme Court of
the United States for a writ of mandamus to compel Jeffersons Secretary of State, James Madison (D), to deliver the commissions. The
Judiciary Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of mandamus to any courts appointed, or persons
holding office, under the authority of the United States.

Issues
1.

Does Marbury have a right to the commission?

2.

Does the law grant Marbury a remedy?

3.

Does the Supreme Court have the authority to review acts of Congress and determine whether they are unconstitutional and therefore
void?

4.

Can Congress expand the scope of the Supreme Courts original jurisdiction beyond what is specified in Article III of the Constitution?

5.

Does the Supreme Court have original jurisdiction to issue writs of mandamus?

Holding and Rule (Marshall)

1.

2.

3.

4.

5.

Yes. Marbury has a right to the commission.

The order granting the commission takes effect when the Executives constitutional power of appointment has been exercised, and the
power has been exercised when the last act required from the person possessing the power has been performed. The grant of the
commission to Marbury became effective when signed by President Adams.
Yes. The law grants Marbury a remedy.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. One of the first duties of government is to afford that protection.
Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, the individual who considers
himself injured has a right to resort to the law for a remedy. The President, by signing the commission, appointed Marbury a justice of
the peace in the District of Columbia. The seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of
the verity of the signature, and of the completion of the appointment. Having this legal right to the office, he has a consequent right to
the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy.
Yes. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore
void.
It is emphatically the 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 Court must decide on the operation of each. If courts
are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such
ordinary act, must govern the case to which they both apply.
No. Congress cannot expand the scope of the Supreme Courts original jurisdiction beyond what is specified in Article III of the
Constitution.
The Constitution states that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers
and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction. If it had
been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts
according to the will of that body, this section is mere surplusage and is entirely without meaning. If Congress remains at liberty to give
this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the
Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.
No. The Supreme Court does not have original jurisdiction to issue writs of mandamus.
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to
enable them to exercise appellate jurisdiction.
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not

create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a
paper is, in effect, the same as to sustain an original action for that paper, and is therefore a matter of original jurisdiction.

Disposition
Application for writ of mandamus denied. Marbury doesnt get the commission.
See Ex Parte McCardle for a constitutional law case brief holding that that the Constitution gives Congress the express power to make
exceptions to the Supreme Courts appellate jurisdiction.

Judicial Review or Judicial Activism?

Marbury v. Madison (1803)
Summary
Legal scholars consider Marbury v. Madison a central text for understanding the role of the Courts to interpret law in light of the
Constitution, known as judicial review. It is the centerpiece of many constitutional law classes.
As judicial review was seldom exercised prior to the 20th century, the case was cited exclusively for its discussion of the
particular issues of the case for the first century after it was handed down. Beginning in the early 20th Century, however, the
Court began striking down federal laws more frequently. Proponents of judicial review pointed to Chief Justice John
Marshalls decision in Marbury as a source supporting the view that the Supreme Court has the final say on what the Constitution
means. In this months Landmark Supreme Court Cases and the Constitution, we spotlight the case of Marbury v. Madison (1803).

Student Handout (PDF)

Teacher Key

Resources

Marbury v. Madison (1803) from the Bill of Rights Institutes Americapedia

Article III of the Constitution from the Bill of Rights Institutes Americapedia
Brutus Essays from Constitution.org

Activity
The case of Marbury v. Madison (1803) was the first time the U.S. Supreme Court declared an act of Congress to be
unconstitutional. (The case concerned a section of the Judiciary Act of 1789.) In his opinion, Chief Justice John Marshall relied
almost exclusively on the specific language of the Constitution, saying that it was the paramount law of the nation and that it
constrained the actions of all three branches of the national government. The whole point of a written Constitution, Marshall
asserted, was to ensure that government stayed within its prescribed limits: The powers of the Legislature are defined and
limited; and [so] that those limits may not be mistaken or forgotten, the Constitution is written.

In cases where
a law conflicted with the Constitution, Marshall wrote, then the very essence of judicial duty was to follow the Constitution.
Marshall also asserted that the courts had the responsibility to understand and articulate what the Constitution means: It is
emphatically the province and duty of the judicial department to say what the law is. The decision concluded a law repugnant
to the Constitution is void, and courts, as well as other departments, are bound by that instrument.

The Supreme Court did not declare another act of Congress unconstitutional until it struck down the Missouri Compromise in Dred
Scott v. Sanford (1857). The power of judicial review was used sparingly for the next several decades. Beginning in the early 20th
Century, however, the Court began striking down federal laws more often than ever before. Proponents of judicial review
pointed to Chief Justice John Marshalls decision in Marbury as a source supporting the view that the Supreme Court has the final
say on what the Constitution means.
Since then, as the powers of the national government have expanded and as more and more state laws became subject to federal
review (as a result of the Fourteenth Amendment and the incorporation of the protections of the Bill of Rights against the
states), the Supreme Court has had frequent opportunities to exercise its power of judicial review.

Comprehension and Critical Thinking Questions

1.
2.
3.

4.
5.

What did John Marshall say was the chief purpose of written constitutions in Marbury v. Madison (1803)?
What did he call the very essence of judicial duty?
The First Congress was overwhelmingly made up of the delegates to the Constitutional Convention and state Ratifying
Conventions. It was the First Congress which passed the law at issue in Marbury v. Madison. George Washington, president of the
Constitutional Convention, signed it into law. To what degree, if any, can the actions of the First Congress and President help
citizens understand the meaning of the Constitution? How else can citizens understand it?
Does the power of judicial review necessary lead to judicial supremacy?
Throughout American history, some have asserted that states (and not the Supreme Court) are the rightful judges of whether a
law is constitutional. What would be some advantages and disadvantages of this arrangement?

Extension
Have students read the Marbury v. Madison decision. Does Marshalls ruling support the argument that the Supreme Court alone
and not other branches of the national governmenthave the final say on what the Constitution means? Why or why not?