Which of the following decisions gave the Supreme Court the power of judicial review?

In 1801, outgoing President John Adams had issued William Marbury a commission as justice of the peace — but the new Secretary of State, James Madison, refused to deliver it. Marbury then sued to obtain it. With his decision in Marbury v. Madison, Chief Justice John Marshall established the principle of judicial review, an important addition to the system of “checks and balances” created to prevent any one branch of the Federal Government from becoming too powerful.

“A Law repugnant to the Constitution is void.” With these words written by Chief Justice Marshall, the Supreme Court for the first time declared unconstitutional a law passed by Congress and signed by the President. Nothing stated in the Constitution gave the Court this specific power. Marshall, however, believed that the Supreme Court should have a role equal to those of the other two branches of government.

When James Madison, Alexander Hamilton, and John Jay wrote a defense of the Constitution in The Federalist, they explained their judgment that a strong national government must have built-in restraints: “You must first enable government to control the governed; and in the next place oblige it to control itself.” The writers of the Constitution had given the executive and legislative branches powers that would limit each other as well as the judiciary branch.

The Constitution gave Congress the power to impeach and remove officials, including judges or the President himself. The President was given the veto power to restrain Congress and the authority to appoint members of the Supreme Court with the advice and consent of the Senate. In this intricate system, the role of the Supreme Court had not been defined. It therefore fell to a strong Chief Justice like Marshall to complete the triangular structure of checks and balances by establishing the principle of judicial review. Although no other law was declared unconstitutional until the Dred Scott decision of 1857, the role of the Supreme Court to invalidate federal and state laws that are contrary to the Constitution has never been seriously challenged.

“The Constitution of the United States,” said Woodrow Wilson, “was not made to fit us like a strait jacket. In its elasticity lies its chief greatness.” The often-praised wisdom of the authors of the Constitution consisted largely of their restraint. They resisted the temptation to write too many specifics into the basic document. They contented themselves with establishing a framework of government that included safeguards against the abuse of power. When the Marshall decision in Marbury v. Madison completed the system of checks and balances, the United States had a government in which laws could be enacted, interpreted and executed to meet challenging circumstances.

The landmark 1803 case Marbury v. Madison marked the first time the Court asserted its role in reviewing federal legislation to determine its compatibility with the Constitution -- the function of judicial review. Above, a portrait of plaintiff William Marbury.

Reproduction courtesy of the Office of the Supreme Court Curator

Marbury v. Madison (1803)

Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U.S. Supreme Court case to apply the principle of "judicial review" -- the power of federal courts to void acts of Congress in conflict with the Constitution. Written in 1803 by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.

The facts surrounding Marbury were complicated. In the election of 1800, the newly organized Democratic-Republican party of Thomas Jefferson defeated the Federalist party of John Adams, creating an atmosphere of political panic for the lame duck Federalists. In the final days of his presidency, Adams appointed a large number of justices of peace for the District of Columbia whose commissions were approved by the Senate, signed by the president, and affixed with the official seal of the government. The commissions were not delivered, however, and when President Jefferson assumed office March 5, 1801, he ordered James Madison, his Secretary of State, not to deliver them. William Marbury, one of the appointees, then petitioned the Supreme Court for a writ of mandamus, or legal order, compelling Madison to show cause why he should not receive his commission.

In resolving the case, Chief Justice Marshall answered three questions. First, did Marbury have a right to the writ for which he petitioned? Second, did the laws of the United States allow the courts to grant Marbury such a writ? Third, if they did, could the Supreme Court issue such a writ? With regard to the first question, Marshall ruled that Marbury had been properly appointed in accordance with procedures established by law, and that he therefore had a right to the writ. Secondly, because Marbury had a legal right to his commission, the law must afford him a remedy. The Chief Justice went on to say that it was the particular responsibility of the courts to protect the rights of individuals -- even against the president of the United States. At the time, Marshall's thinly disguised lecture to President Jefferson about the rule of law was much more controversial than his statement about judicial review (which doctrine was widely accepted).

It was in answering the third question -- whether a writ of mandamus issuing from the Supreme Court was the proper remedy -- that Marshall addressed the question of judicial review. The Chief Justice ruled that the Court could not grant the writ because Section 13 of the Judiciary Act of 1789, which granted it the right to do so, was unconstitutional insofar as it extended to cases of original jurisdiction. Original jurisdiction -- the power to bring cases directly to the Supreme Court -- was the only jurisdictional matter dealt with by the Constitution itself. According to Article III, it applied only to cases "affecting ambassadors, other public ministers and consuls" and to cases "in which the state shall be party." By extending the Court's original jurisdiction to include cases like Marbury's, Congress had exceeded it authority. And when an act of Congress is in conflict with the Constitution, it is, Marshall said, the obligation of the Court to uphold the Constitution because, by Article VI, it is the "supreme law of the land."

As a result of Marshall's decision Marbury was denied his commission -- which presumably pleased President Jefferson. Jefferson was not pleased with the lecture given him by the Chief Justice, however, nor with Marshall's affirmation of the Court's power to review acts of Congress. For practical strategic reasons, Marshall did not say that the Court was the only interpreter of the Constitution (though he hoped it would be) and he did not say how the Court would enforce its decisions if Congress or the Executive opposed them. But, by his timely assertion of judicial review, the Court began its ascent as an equal branch of government -- an equal in power to the Congress and the president. Throughout its long history, when the Court needed to affirm its legitimacy, it has cited Marshall's opinion in Marbury v. Madison.

	AUTHOR'S BIO
	Alex McBride is a third year law student at Tulane Law School in New Orleans. He is articles editor on the TULANE LAW REVIEW and the 2005 recipient of the Ray Forrester Award in Constitutional Law. In 2007, Alex will be clerking with Judge Susan Braden on the United States Court of Federal Claims in Washington.

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