• Last updated on November 11, 2022

For the first time, the Supreme Court declared that a congressional statute was unconstitutional and therefore invalid.

Before 1803, there was a great deal of debate about whether the Supreme Court possessed the authority to make binding decisions in regard to the constitutionality of statutes, especially those of the federal government. Many jurists argued that this prerogative, now called judicial review, was implied in the Constitution, and the majority of the delegates at the Constitutional Convention accepted the prerogative narrowly conceived as legitimate. Alexander Hamilton, in The Federalist (1788), No. 78, emphasized the importance of judicial review within a system of limited government. The Court, in Ware v. Hylton[case]Ware v. Hylton[Ware v. Hylton] (1796), did not hesitate to strike down a state statute that contradicted the “supreme law of the land,” a national treaty in this particular case. Likewise, in upholding the constitutionality of a federal tax in Hylton v. United States[case]Hylton v. United States[Hylton v. United States] (1796), the Court clearly assumed that it had the power to exercise judicial review over the statutes enacted by Congress.Judicial review;Marbury v. Madison[Marbury v. Madison]

James Madison

(Library of Congress)

Nevertheless, critics of the judiciary, including Thomas Jefferson,Jefferson, Thomas argued that each of the three coordinate branches of the national government had an equal right to decide on questions of constitutionality for itself.

The seminal Marbury decision evolved out of a bitter political conflict between the Federalist Party, which had held power since 1789, and the emerging Republican Party (Democratic-Republicans), headed by Thomas Jefferson.Political party system In the election of 1800, Jefferson defeated President John Adams, and Republicans gained firm control of both houses of Congress. The lame-duck president and Congress, horrified at the prospects of a Republican government, attempted to expand Federalist dominance over the national judiciary before Jefferson’s inauguration. The strategy included three elements: the installation of John Marshall as chief justice, the Judiciary Act of 1801Judiciary Acts of 1801-1925 (which created new circuit court judgeships), and the Organic ActOrganic Act (which authorized Adams to appoint forty-one justices of the peace for the District of Columbia).

Undelivered Commissions

As late as March 3, 1801, the day before Jefferson became president, the Senate was still confirming the last of the so-called “midnight judges.” President Adams had to sign the commissions, which he then sent to Secretary of State Marshall, who had the duties of attaching the Great Seal of the United States and of dispatching the completed commissions to the appointees. Because of the confusion associated with a change of administrations, a number of the commissions never left the executive office building. Once Jefferson was installed as president, he was so infuriated by the stacking of the judiciary that he instructed his secretary of state, James Madison, to withhold the undelivered commissions from the appointees. Somewhat later, the Republican Congress repealed the Judiciary Act of 1801 and postponed the Supreme Court’s next meeting until 1803.

Although William Marbury, a well-connected Federalist, had been appointed to a five-year term as justice of the peace, he was among the appointees who never received a commission. Marbury and three associates decided to seek a court order, called a writ of mandamus,Mandamus, writ of directing the secretary of state to turn over their commissions as required by law. They based their suit on section 13 of the Judiciary Act of 1789, which authorized the Supreme Court to issue writs of mandamus to federal office holders. The Marbury case created a dilemma for Chief Justice Marshall and his fellow justices. If the Court ordered the secretary of state to deliver the commissions, it would give Jefferson an occasion to refuse, exercising his theory about the Court’s lack of authority over a coordinate branch. On the other hand, if the Court declined to issue a writ without providing a good rationale, the Court would then implicitly appear to give confirmation to Jefferson’s theory. Marshall was able to find a satisfactory solution.

The Court’s Response

For a unanimous Court, Marshall declared that the Court had no authority to issue the requested writ of mandamus because of a constitutional principle of jurisdiction. He explained that Article III of the Constitution limited the Court’s original jurisdiction to cases involving a state or a foreign diplomat. Marshall’s most important point was that section 13 of the 1789 statute, which authorized the writs, contradicted the Constitution and was void. Referring to both constitutional principles and the constitutional text, Marshall insisted that it “is emphatically the province and duty of the judicial department to say what the law is.” In a lengthy obiter dictum (an opinion not essential to the ruling), Marshall declared that Marbury and his associates were legally entitled to their commissions, and that the secretary of state, in withholding them, was “in plain violation” of the law. Because Marshall did not order Madison to do anything, however, it was impossible for him to disobey a Court ruling.

Modern commentators are often critical of two aspects of Marshall’s interpretations in Marbury. In reference to the constitutional issue of original jurisdiction, Marshall could have concluded that the “exceptions” clause of Article III provided Congress with discretion for dealing with both original and appellate jurisdiction. This interpretation, however, was unacceptable to Marshall, because it would have forced the Court to exercise jurisdiction in the case. In regard to section 13 in the 1789 statute, Marshall could have interpreted the language to mean that the Court was authorized to issue only those writs that were proper according to the accepted principles of the law. Such an interpretation was not attractive to Marshall, because it would have prevented him from establishing a precedent of judicial review. In deciding the way he did, the chief justice was taking advantage of an opportunity to refute Jefferson’s theory of “tripartite balance.”

From the perspective of later history, the Marbury decision established the principle that the Court’s interpretations of the law are binding on the other two coordinate branches of the national government. At the time, however, not many people recognized the significance of the case. After Marbury, with Congress threatening impeachment, the Marshall Court used considerable restraint when ruling on federal statutes. In Stuart v. Laird[case]Stuart v. Laird[Stuart v. Laird] (1803), announced just six days later, the Court upheld the Republicans’ constitutionally suspect law that displaced judges of the circuit courts. It was not until the infamous Scott v. Sandford decision of 1857 that a future Court would exercise the power of “coordinate branch” judicial review for the second time. In contrast, when scrutinizing the constitutionality of state laws, nineteenth century justices tended to be much more aggressive.

Further Reading
  • Ackerman, Bruce A. The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy. Cambridge, Mass.: Belknap Press of Harvard University Press, 2005.
  • Clinton, Robert. “Marbury v. Madison” and Judicial Review. Lawrence: University Press of Kansas, 1989.
  • Clinton, Robert, Christopher Budzisz, and Peter Renstrom, eds. The Marshall Court: Justices, Rulings, and Legacy. Santa Barbara, ABC-Clio, 2007.
  • Garraty, John. “Marbury v. Madison.” In Quarrels That Have Shaped the Constitution. New York: Harper & Row, 1987.
  • Graber, Mark. Marbury v. Madison: Documents and Commentary. Washington, D.C.: CQ Press, 2002.
  • Hall, Kermit L., ed. Judicial Review and Judicial Power in the Supreme Court. New York: Garland, 2000.
  • Kramer, Larry D. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford University Press, 2005.
  • Robarge, David Scott. A Chief Justice’s Progress: John Marshall from Revolutionary Virginia to the Supreme Court. Westport, Conn.: Greenwood Press, 2000.
  • Tushnet, Mark, ed. Arguing Marbury v. Madison. Stanford: Stanford University Press, 2006.


Judicial powers

Judicial review

Judiciary Act of 1789

Marshall, John

Political parties

Scott v. Sandford

Separation of powers

Categories: History