Topic:
Marbury v. Madison and the
Development of Federal Judicial Supremacy
Introduction
Marbury v. Madison
is John Marshall’s most famous opinion and probably one of the most famous
opinions in Supreme Court history. It is often said to have created the power
of “judicial review”—the power of courts to declare laws and acts of
governments unconstitutional and void. Note that the power of judicial review
is the power of American courts generally, not only the power of the Supreme
Court or of federal courts. The power is possessed by state courts as well, and
not just by state courts of last resort, but by county and city courts. The
reason for this broad power is found in Marshall’s opinion in the Marbury case. It is unquestionably an
important case.
But,
as Robert Clinton argues in his article “The Supreme Court before John
Marshall,” it was not unprecedented. The Supreme Court and federal courts in
the 1790s had already assumed their authority to consider the constitutionality
of state and federal statutes. The Court, however, had never adopted a clear
doctrine or rationale for judicial review in these early cases. To be sure,
Justice Paterson’s charge to the Circuit Court jury in the case of Van Horne’s Lessee v. Dorrance outlined
much of the argument that Marshall was to make in Marbury, but in other cases the rationale for considering
constitutionality was not so clear.
It
is sometimes argued that judicial review was a usurpation of power: that the
power of courts to consider and, if necessary, to void acts of the legislature
or executive is nowhere mentioned in the Constitution. In reply, one might
mention that several of the delegates to the Philadelphia Convention in 1787
indicated that they assumed that courts have such power. A couple of delegates
spoke against the power, but it is clear that the power of judicial review was
not unknown before the ratification of the constitution and seemed to be
generally recognized at the Philadelphia convention. Alexander Hamilton’s Federalist #78, written in 1788 to
support the ratification of the new constitution, provides a thoroughgoing
rationale for the assumed power of judicial review. It is true that the power
of judicial review was not universally accepted even after the decision in Marbury v. Madison. Perhaps the most
famous critique was that of Justice Gibson, dissenting in the Pennsylvania
state case of Eakin v. Raub, although
Gibson later came to accept the legitimacy of judicial review.
First
Assignment
To
turn then to Marbury: more than
enough has been written over the years about the opinion. I have selected the
readings from McLaughlin’s text on constitutional history and Garraty’s book of stories about famous constitutional law
cases. Please read chapter one of Garraty’s book
before you turn to Marshall’s opinion. It will give you all of the historical
background of the case.
When
you read the opinion itself, you will notice that Marshall organizes it into
three parts, each one addressing one of the three questions that Marshall says
are necessary to decide the case. Marshall often uses this device of organizing
opinions on the basis of questions and sub-questions that logically lead to the
Court’s ultimate holding. In Marbury,
quickly review or skim the first two questions that Marshall poses and the
answers that he provides. Then, focus on the third question (beginning
at the end of page 167 of the opinion and continuing to the end of the
opinion). Here is where he discusses judicial review and provides the rationale
that has served as precedent for its use up to the present day.
As
you read the third part of Marshall’s opinion, try to determine what his
precise rationale for judicial review is. What specific law or section of law
is being subjected to judicial review? What is the Court’s holding on that law?
What assumptions or premises does judicial review rest on? And finally, who won
the case?
©William S Miller