Document – Excerpt from the Majority Opinion in Marbury v. Madison (1803)

Abstract and Keywords

As a result of the contested election of 1800, the Republicans took control of the presidency and won majorities in both houses of Congress. Attempting to fall back to the stronghold of the judicial branch, outgoing President John Adams and the Federalist-controlled lame-duck Congress passed the Judiciary Act (1801), which expanded and reorganized federal courts and appointed dozens of new Federalist judges. Republicans vowed to repeal what they saw as an unconstitutional act. Some of the commissions Adams had signed for these judges were undelivered when Jefferson came into office in 1801 and ordered Secretary of State James Madison not to deliver them. One of the Adams appointee justices sued the federal government, demanding his commission be issued to him. The case came before the Supreme Court, led by arch-Federalist Chief Justice John Marshall. The case became a partisan showdown between Jefferson and Marshall. Marshall surprised almost everyone with the decision in Marbury v. Madison, issued in 1803, by appearing to agree with the Jeffersonians. While Marshall concluded that Marbury had indeed been wronged, he argued that the Supreme Court had no power to force issuance of the commission. However, Marshall reasoned clearly and eloquently that the Constitution was law—the supreme law of the land. And as such, it was the Supreme Court’s duty to determine the Constitutionality of acts of Congress—what became known as the power of Judicial Review. And further, it had the power to strike down unconstitutional laws. While the Republicans won the day in Marbury the Federalists in the Supreme Court came out of the case having greatly expanded their power, making the Court a true co-equal branch of government in the process.

Source: http://www.ourdocuments.gov/doc.php?doc=19&page=transcript

. . . It is, then, the opinion of the Court [that Marbury has a] right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy. It remains to be enquired whether, 3dly. He is entitled to the remedy for which he applies. This depends on -- 1st, The nature of the writ applied for, and, 2dly, The power of this court.

. . . The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it . . . This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? . . . 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 . . . 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.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power . . . 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 . . . 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 . . . Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions . . . It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

. . . The judicial power of the United States is extended to all cases arising under the constitution. . . . In some cases, then, the constitution must be looked into by the judges. . . . it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? . . . Why does a Judge swear to discharge his duties agreeably the constitution of the United States, if that constitution forms no rule for his 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 . . .

Review

(1)What does Marshall see as the fundamental nature of the Constitution?
(2)According to Marshall’s conception of the constitution, what is the role of the Supreme Court? What then is the basic argument at the heart of all cases heard before the court?
(3)Given President Jefferson’s views on the Constitution and the limits of federal power, how might he and his Republican supporters have reacted to Marshall’s line of argument?