We’ve all been taught that the supreme Court case Marbury v. Madison established the principal of judicial review.
Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional.
Imagine my surprise when I read it and found out that wasn’t what Marshall wrote in the opinion.
Background
When John Adams lost his bid for re-election in 1800, he, along with other federalists in Congress, attempted to pack the courts by passing the Judiciary Act of 1801 and appointing 16 new circuit judges and 42 new justices of the peace. While these appointments were approved by the Senate, their commissions were not delivered before the Jefferson administration was inaugurated. James Madison, Jefferson’s Secretary of State, refused to deliver the commissions. William Marbury, one of the new Justices of the Peace, petitioned the supreme Court to compel Mr. Madison to deliver his commission. The case before the court hinged on three questions:
- Did Mr. Marbury, and the other plaintiffs who had joined his suit, have a right to receive their commissions?
- Could the plaintiffs sue to get their commissions?
- Did the supreme Court have the authority to order the delivery of the commissions?
In reading the opinion I saw the the court found that Mr. Marbury did have a right to the commission and that he could sue to receive it. I believe both issues were rightly decided, if in a long winded opinion. The interesting point came with the question of jurisdiction.
The Heart of the Question
Mr. Marbury asked the supreme Court to issue a writ of mandamus, to order Mr. Madison to deliver his commission.
A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.
OK, courts issue orders like this all the time. So what’s the big deal? Chief Justice Marshall brought up an issue with the legislation enabling the supreme Court to issue writs of mandamus and the constitutional question of jurisdiction, paraphrasing Article III of the Constitution.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction,
Chief Justice Marshall then went on to state the issue:
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.
In other words, for Congress to be able to authorize the courts to issue an order to public officials, they must show it to be necessary to exercise their authority under the Constitution.
It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States.
According to one of the lawyers arguing the case (that’s what’s meant by “at the bar”), since the Constitution did not say Congress couldn’t change the jurisdiction of the courts, as long as it fell within the judicial power of the United States they could do so. Does Congress have the power, by legislation, to change the jurisdiction of the supreme Court, which was established by the Constitution? Since the Constitution did not specifically give the Judicial branch the authority to issue these writs, could Congress authorize them?
The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.
Could Congress give the courts jurisdiction over public officers? This would effectively place the judiciary branch above the executive branch and potentially above the legislative as well. This was something the Constitution did not allow. In fact, it would completely invert the power structure created by the Constitution. Leaving the Chief Justice with the question: Should the court follow the Constitution or federal law?
It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
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.
In other words, the Constitution is the supreme law of the land and cannot be changed by ordinary means. And, since the Constitution is the supreme law of the land, any legislation repugnant to it is void, invalid, and has no value or authority to be enforced. So the next question Chief Justice Marshall asked in his opinion was, what does that mean for the court?
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
This short answer is that to bind the court to legislation that was void would be absurd. Like any good lawyer, the Chief Justice goes on.
Judicial Review
Which brings us to the line on which hangs the modern theory of “Judicial Review”:
It is emphatically the province and duty of the Judicial Department to say what the law is.
I have heard this used in several variations, such as, “The Legislature writes the laws and the Courts interpret them.” However, they all seem to take the this once sentance out of context.
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. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the 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.
In other words, it is the role of the judiciary to look at all the laws related to a particular case, including the Constitution, and through expounding and interpreting what those laws say, apply them properly to that case. The very essence of the judicial power vested in the judicial system is to apply the laws related to the case before them. And since the Constitution is superior to any ordinary act of Congress, it must govern the case before them.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
Put another way, when a case comes before the court, it is their duty to review all the laws and their hierarchy in coming to their decision. Thus, the judiciary must review the law in the light of the Constitution. And if the law is in conflict with the Constitution, it is void.
Judicial Review vs. Judicial Supremacy
So if the courts have the authority to review laws passed by Congress, does that mean their opinion is supreme? Is the opinion of a handful of justices superior to those elected by the people, or even to the people themselves? Is the Constitution putty in the hands of this oligarchy? Let’s look back at the Oyez quote from the beginning.
Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional.
So did Chief Justice Marshall establish the principle that the courts have the authority to overturn legislation by simply declaring it unconstitutional? When we read the opinion for ourselves we find that Marshall said the court not only had to take the Constitution into consideration when rendering their opinion, but had to give it preeminence. Furthermore, since the Constitution does not give the courts the authority to issue orders to the other branches of government, there is no mechanism for them to impose their opinion. There is no language in either the Constitution or the opinion in Marbury v. Madison that implies the Courts can make blanket declaration about laws, only that they are subservient to all of them and must therefore abide by them. And not just the courts, but all of the federal government.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
The rule must be discharged.
In fact, Chief Justice Marshall said that even though Mr. Marbury did have a right to his commission and the right to sue for it, the courts had no authority to order the Secretary of State to deliver it. What we see here is a supreme Court restrained by the Constitution, not dictating to the other branches of government what it says and certainly not ordering them to comply with their opinion. This is an example of judicial restraint more than judicial review, and certainly NOT the judicial supremacy we see exercised so often in the courts today.
Think of all the court orders that have claimed the right to dictate to the executive branch how they do their job over the years. Yes, these courts should review the legislation, regulations, and actions of the other branches of government, and render their opinion. They should also be held accountable for those opinions and their own actions. So the next time you hear someone discuss a court order to a public official, remind them of Marbury v. Madison and the difference between judicial review and judicial supremacy. If the courts could not issue orders to public officials then, they are not legally allowed to do so now.
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Alexander Hamilton – Federalist #78
