Marbury and Judicial Review

Marbury and Judicial Review

Marbury v. Madison is remembered for the holding that the Constitution is law and that the judiciary says what the law is, including when the question is whether Congress or the Executive has acted within the Constitution.¹ The declaration was a step in resolving one particular petition, however, and Marshall's reasoning shows why that step was open to him. Reading the opinion with that connection in view turns a familiar story into a lesson about the limits of judicial review, and it explains why the case belongs in a chapter on the requirement of a case or controversy. The facts come first, then the three questions Marshall asked, and then the point at which his answers meet the requirement this chapter is teaching.

In the closing days of the Adams administration, the outgoing President signed commissions appointing justices of the peace for the District of Columbia, and the commissions bore the seal of the United States, but some had not been delivered when the new administration took office.² William Marbury was one of the appointees whose commission was withheld, because Thomas Jefferson, the new President, would not allow Secretary of State James Madison to deliver it. Marbury petitioned the Supreme Court directly for a writ of mandamus, which is a court order commanding a government officer to perform a duty that the law imposes on the office.³ Because he filed in the Court's original jurisdiction, meaning he asked the Court to hear the matter as a court of first instance rather than on appeal, the petition raised a question about the Court's own power as well as a question about Marbury's rights.

Marshall organized his opinion around three questions. The first was whether Marbury had a right to the commission, and the second was whether, if he did, the law afforded a remedy for its withholding. He answered yes to both: the signed and sealed commission gave Marbury a legal right to the office, and where the law gives a right it also gives a remedy when an officer violates it.⁴ Those answers carried a consequence for the executive branch. Where the Constitution or a statute imposes a duty on an officer, the judiciary can enforce it, and doing so is an inquiry into a specific illegality rather than an intrusion on the President's own powers.⁵

The third question, whether a mandamus from the Supreme Court was the proper remedy, is where the opinion turns. Article III gives the Supreme Court original jurisdiction only in cases affecting ambassadors and in cases in which a state is a party, and Marshall read that grant as a fixed list that Congress could not enlarge.⁶ Section 13 of the Judiciary Act of 1789, as he construed it, authorized the Court to issue writs of mandamus to officers of the United States in original actions, which described Marbury's petition exactly. The statute therefore purported to give the Court a power that Article III withheld. Section 13 could have been read differently, since its wording was ambiguous, but the reading Marshall adopted is what forced the constitutional question.⁷

Finding a conflict between Section 13 and Article III left a further question: whether a court may refuse to give effect to an act of Congress that contradicts the Constitution. Marshall began from the premise that the Constitution is either superior and paramount or on a level with ordinary legislative acts, and that if it is superior, a legislative act contrary to it is not law.⁸ Judges who apply rules to particular cases must interpret those rules, so when two rules conflict in a case the court must decide which one governs, and a court that follows the Constitution over an ordinary statute does only what that choice requires.⁹ He added that Article III extends the judicial power to cases arising under the Constitution, which would make little sense if a court deciding such a case could not look into the instrument, and that the judicial oath to support the Constitution would be a mockery if judges had to enforce statutes repugnant to it.¹⁰

The feature of this argument that matters most here is where it locates the power. Marshall placed review inside the act of deciding a petition. The conflict between statute and Constitution arose within Marbury's case, and the Court could not dispose of that case without deciding which law controlled. A court must decide the case before it, deciding requires applying the governing law, and when two laws point in different directions the court has to choose the higher one. Every link in that chain depends on the first, so removing the case removes the duty to decide and with it the occasion for review. A court therefore has power to pronounce a statute unconstitutional only as a consequence of its power to decide a case properly before it, and a statute that may well be invalid stays beyond judicial pronouncement until such a case arrives.¹¹ Marbury's dispute, a petitioner holding a signed commission against an officer who withheld it, is the kind of case that justifies review, because the Court could not decide whether it could issue the writ without deciding whether Section 13 could be applied.

This structure also explains the famous irony of the decision. The Court established its authority to hold acts of Congress void while refusing a power that Congress had tried to give it, and the Jefferson administration won the immediate result because Marbury never received his commission.¹² The irony dissolves once the link to the case is visible, since the Court could say it lacked power to issue the writ only by deciding that the Constitution, and not the statute, fixed the limits of its original jurisdiction.¹³ Marshall's justification also centered on the injured individual, because the judicial role of giving a remedy to someone harmed by a violation of law is what makes review part of the judicial duty.¹⁴

The limit has a reason that can be derived from what review does. Striking down a statute overrides the choice of elected representatives, and when that happens inside a dispute, concrete facts and an injured litigant test the legal question and tie the reach of the ruling to those facts. A power to rule on statutes at any time, with no dispute to confine it, would let unelected judges fix their constitutional views in place without a concrete case in which to see the consequences, and would multiply the occasions on which courts intrude on the democratic process.¹⁵ The Court stated the same limit in Muskrat v. United States when it declined an invitation from Congress itself to pass on a statute's validity: the duty to declare a law unconstitutional "is not given to it as a body with revisory power over the action of Congress" and exists because litigants' rights in justiciable controversies require the court to choose between the fundamental law and a conflicting statute.¹⁶

On an exam stem that invokes Marshall's statement that judges say what the law is, the trap is to treat it as authority for ruling on any constitutional question a person puts to a court. The statement sits inside an argument about deciding cases, so the first inquiry is whether a live dispute presents the choice between the Constitution and a conflicting law, and a request for a ruling with no litigant behind it fails at that step.