Part 4

Marbury v. Madison: A Check on the Power of Legislatures

Jeffrey H. Anderson, Ph.D.

Marbury v. Madison is the case in which the Supreme Court first enunciated and exercised the doctrine of judicial review, the notion that judges are constitutionally empowered—required, even—not to apply laws or actions (when they come before them in a legal case) that violate the Constitution’s plain language. It is not, however, the forefather of modern judicial activism, although many law professors would like to pretend otherwise.

Marbury does not provide precedent for rulings based principally on policy rather than legality, for those based on the personal views of judges rather than the fixed dictates of law, or for those based on what judges think the law ought to be rather than on what the law actually is.

A Familiar Voice Supports Marshall

Marbury has long been recognized as a seminal case, being the Supreme Court’s inaugural exercise of judicial review. But upon the opinion’s release in 1803, its assertion that the Court possesses this power was not particularly controversial. In his 1922 classic The Supreme Court in United States History, Charles Warren writes that at the time of Marbury’s issuance, “practically the only published attack on that portion of [the great Chief Justice John] Marshall’s opinion which asserted the power and the duty of the Court to pass upon the validity of the Act of Congress involved was contained in a series of letters from a Virginian, signed ‘An Unlearned Layman.’”[1] Another writer in that same 1803 newspaper, who clearly knew his Federalist Papers (and particularly Federalist 78), soon after replied to the layman:

It has always appeared to me a matter of astonishment that a power, should be denied, which is so necessary and so clearly defined, as that of the Judges of the United States to declare a law unconstitutional, or in other words, to pronounce the Constitution of superior obligation to the law. … [I]f a law conflict[s] with the Constitution, the Judges are bound to declare which is paramount. The Judges here arrogate no power. It is not they who speak—it is the Constitution, or rather, the people.[2]

Alexander Hamilton, the author of Federalist 78 himself, wrote, “Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power.” Hamilton continues, “If it be said that the legislative body are themselves the constitutional judges of their own powers and that the construction they put upon them is conclusive upon the other departments it may be answered that this cannot be the natural presumption where it is not to be collected from any particular provision in the Constitution.” He concludes, “The interpretation of the laws is the proper and peculiar province of the courts,” and it is their duty “to declare all acts contrary to the manifest tenor [obvious meaning] of the Constitution void.”[3]

Not a Power Grab

Although Marbury provides clear precedent for judicial review along the lines that Hamilton envisioned, it is only in recent decades that law professors have attempted to claim that the case provides precedent for “legal realism”—the notion that the law isn’t fixed, that judges should read and apply legal texts in the manner that they think society requires, that judges must infuse the Constitution and laws with meaning and then declare that this meaning exudes from the text itself. Legal realism is traceable back to Justice Oliver Wendell Holmes and is actually traceable as far back as Chief Justice Roger Taney, Marshall’s successor and the author of Dred Scott v. Sandford (1857). Dred Scott was the Court’s first major foray into policymaking, but Taney applied a much milder form of the legal realist approach as early as 1837 in the case of Charles River Bridge v. Warren Bridge, doing so over the powerful dissent of Marshall’s right-hand man, Justice Joseph Story. But Marbury is not precedent for legal realism. It was not a power grab, nor an attempt on the part of its esteemed author to provide a revolutionary departure from previously held understandings about the proper role of the courts.

Marshall’s argument in Marbury in support of judicial review is persuasive, and it is rooted both in the constitutional text and in a solid understanding of the nature of a written (and thereby limited) constitution. Marshall writes:

It is declared that “no tax or duty shall be laid on articles exported from any State.” Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution, and only see the law?

The Constitution declares that “no bill of attainder or ex post facto law shall be passed.”

If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavours to preserve?

In other words, in such instances of a law’s clear violation of the Constitution, something must give—either the Constitution or the law. Under a written constitution, it must seemingly be the latter. And if it’s the latter, a judge effectively has no choice: He or she must strike down (i.e., refuse to apply) the offending law. Those who question the legitimacy of judicial review have yet to provide an effective refutation of this argument.

Rose Misquotes Marshall

The argument is an elaboration on what Marshall means elsewhere in Marbury when he proclaims that the “theory” asserting that the judiciary may void clearly unconstitutional laws is “essentially attached to a written constitution.” This is beautifully said. And it should remind us that a theory—and a case—that are essentially attached to a written constitution cannot rightly be said to provide precedent for legal-realist rulings that are largely detached from a written constitution.

Marshall’s argument on behalf of judicial review is effectively a restatement of Hamilton’s argument in Federalist 78, which in turn is a thorough defense of the support for judicial review communicated (with little opposition) at the Constitutional Convention by James Madison, Elbridge Gerry, Rufus King, James Wilson, Luther Martin, George Mason, and Gouverneur Morris—particularly during the Council of Revision debate. The consensus expressed in all three places—at the Convention, in Federalist 78, and in Marbury—was that judicial review (not yet named as such) both would and should be exercised, although always with great deference to representative legislatures and never as a means to promote particular or general policy goals.

The principles of constitutional republicanism were thought to require this, for if judges do not exercise judicial review to strike down clearly unconstitutional laws, then (by applying those laws) they aid legislatures in their violations of constitutional forms, while if judges do exercise judicial review to promote their own policy goals, then they both undermine constitutional forms (which call for them to adjudicate, not legislate) and deprive the people of their collective right to govern themselves.

Yet many law professors continually miss that very point. Some even impute to Marshall a clever and willful disingenuousness, which they then use to support their own claims that judges are entitled to issue binding policy-based rulings. A prime example of this is an article by law professor Winfield H. Rose entitled, “Marbury vs. Madison: How John Marshall Changed History by Misquoting the Constitution.” Rose says that Marshall “had the nerve, the courage, to misquote the Constitution for his own purpose,” and “the skill to do it in such a way that has been largely unrecognized for 200 years.” He writes that through this exercise not of “lofty jurisprudence” but of “pure politics,” Marshall secured for the Court “the huge power of judicial review.” Alas, in attempting to support his argument, Rose misquotes Marshall—or, at the least, he misrepresents and misapplies Marshall’s words.

In Marbury, the Supreme Court struck down a part of the Judiciary Act of 1789 on the grounds that, by authorizing the Court to issue writs of mandamus (directives to government officers), the act expanded the Supreme Court’s original (non-appellate) jurisdiction. Marshall argued that Congress could not alter the scope of the Court’s original jurisdiction, since that jurisdiction is specified by the Constitution. Rose asserts that this argument was made possible only because Marshall “simply dropped” a constitutional phrase that empowers Congress to alter the Court’s jurisdiction as it sees fit. Rose says that Marshall called the phrase “mere surplusage … entirely without meaning.”

However, Rose mistakes Marshall’s thoughts about the arguments made by Marbury’s counsel for Marshall’s thoughts about the Constitution itself. Marshall does not conclude, as Rose asserts, that a part of the Constitution is meaningless “surplusage.” Rather, Marshall cites the constitutional construction proposed by Marbury’s lawyer and concludes that “The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction” (italics added). But Rose omits these last seven words.

Rose claims that the exceptions clause “gave Congress the power to adjust the original and appellate jurisdictions of the Supreme Court.” But the exceptions clause authorizes Congress to adjust only the Court’s appellate jurisdiction, not its original—at least explicitly. Moreover, if the exceptions clause were to refer to both the Court’s appellate and original jurisdictions, as Rose asserts, then that idea could have been stated rather succinctly, by using language such as “Congress shall specify the Court’s original and appellate jurisdictions, both as to law and fact,” in lieu of the entire second paragraph of Article III, Section 2—and the Founders were generally not guilty of verbosity in their writing of the constitutional text. As Marshall writes:

If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction.[4]

The Foundation for Judicial Review

Far from dropping the exceptions language from view as Rose alleges, Marshall explicitly notes it. Regardless of whether one finds Marshall’s argument persuasive, it assuredly does not rest on a misquoting or ignoring of the Constitution.

More to the point, the Court’s ruling in Marbury is not a policy-based ruling. It does not bring about the realization of the justices’ own wills. Rather, it is a ruling based on careful reasoning about the plain language of the constitutional text—about what it means rather than about what the judges might like it to mean. To the extent that Marbury is the foundation of judicial review, it is the foundation only for judicial review of this sort.

[2] Washington Federalist, April 20, 22, 27, 29, 1803, reprinted in ibid. (Warren does not list the author’s name, and perhaps he wrote anonymously; he says only that he responded to the “Unlearned Layman” in the same newspaper in which the Layman had written.)

[3] Federalist No. 78.

[4] Marbury v. Madison, 5 U.S. 137 (1803). Italics added.