Judicial Review

The Issue:  Does the Constitution Give the Supreme Court the Power to Invalidate the
Actions of Other Branches of Government?

In 1800 the Federalists and their candidate, President John Adams, lost the election to Thomas Jefferson.  Early in 1801 the lame-duck Federalist Congress enacted a controversial Judiciary Act that created 58 new judgeships, including 42 justiceships of the peace, for Adams to appoint.  Jefferson complained that the Federalists "have retired into the judiciary as a stronghold."  On the night March 3, 1801, John Marshall, acting as secretary of state, affixed the official seal to the commissions for the justices of the peace.  He did not, however, deliver the commissions.  The next day, after Thomas Jefferson was inaugurated, he directed the new secretary of state, James Madison, to withhold delivery of 17 of the 42 commissions, including that of William Marbury.  William Marbury sued for a writ of mandamus to require Madison to hand over his commission.

William Marbury

The decision in Marbury's case, written by Chief Justice John Marshall (the very same John Marshall who affixed the seal to Marbury's commission--talk about a conflict of interest!) established and justified the power of judicial review.  It is the first case read by virtually every first-year law student and is generally considered the greatest of all landmark cases.  Marshall strained to reach his result.  The plain words of Section 13 of the Judiciary Act indicate that Marbury went to the wrong court or invoked the wrong statute (or both), but Marshall proceeded as if the suit were authorized by Section 13 and then declared the statute unconstitutional on the grounds that it purported to expand the Court's original jurisdiction in violation of Article III.  Marbury's suit was dismissed for lack of jurisdiction.  Marshall's decision--brilliant in its conception--allowed the Court to brand Jefferson a violator of civil rights without issuing an order that the President could have ignored.

Marbury vs. Madison (1803)

Fragment from John Marshall's Handwritten Decision


1. Is judicial review a good idea? Should nine unelected judges be able to tell our elected representatives what they can and cannot do?
2. Are courts more likely to block an enlightened consensus with their adherence to outdated principles or to protect the politically weak from oppressive majorities?
3.  Are judges, protected with lifetime tenure and drawn generally from the educated class, more likely to be reflective and above the passing enthusiasms that drive legislative action?
4.  Does Marbury mean that legislators or members of the executive branch have no responsibility to judge the constitutionality of their own actions?
5.  Could we have a workable system of government without judicial review?

"The prime and most necessary function of the Court has been that of validation, not that of invalidation.  What a government of limited powers needs, at the beginning and forever, is some means of satisfying the people that it has taken all steps humanly possible to stay within its powers."
--Professor Charles L. Black

Marbury v. Madison Background & Players
(James Madison Univ.)

Judicial Review (Wikipedia)

1800-1809 American Events Timeline

John Marshall - Definer of a Nation

1803 Petition, Debate & Vote of Wm. Marbury & Others
(from Annals of Congress)

Pitching quoits
Quoits, Anyone?:
The Personality Differences of John Marshall and Thomas Jefferson
"[John Marshall] was proud of his skills in pitching quoits--a game involving a kind of round horseshoe--and could be observed at the Quoits Club in Richmond toward the end of his life downing Madeira and rum  punch, getting down on his hands and knees earnestly measuring the distance between his quoit and those of his opponents, and then shouting in unaffected happiness when he won.  It is hard to imagine the withdrawn and aristocratic Jefferson in a similar posture."
--Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America (2006).

Chief Justice John Marshall

The Judiciary Act  (Section 13):

     The act to establish the judicial courts of the United States authorizes the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."

Article III of Constitution
Section. 2 

     The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States; --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 

      In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.  

Original Intent & Judicial Review

The Constitution does not expressly provide for judicial review.  What should be made of this fact?  Does it suggest that the framers did not intend to give the courts such a power?  Not necessarily, although that is one explanation for its absence.  It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated.  A third possibility is that the framers didn't think that the issue would ever come up, because Congress would never pass legislation outside of its enumerated powers. 

Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review.  Of those that did so, nine generally supported the idea and two opposed. One delegate, James Wilson, argued that the courts should have the even broader power to strike down any unjust federal or state legislation.  It may also be worth noting that over half of the thirteen original states gave their own judges some power of judicial review.

Flying Fish Case

Two Views on Seizures

John Adams

T. Jefferson
Vice President Thomas Jefferson opposed the 1799 order of President  Adams allowing the
seizing of ships.

Many people know the first  Supreme Court decision to declare an act of Congress unconstitutional (It's Marbury, of course), but few people could identify the Court's first decision declaring Executive Branch action to be unconstitutional.  Little v Barreme (1804), called the Flying Fish case, involved an order by President John Adams, issued in 1799 during our brief war with France,  authorizing the Navy to seize ships bound for French ports.  The president's order was inconsistent with an act of Congress declaring the government to have no such authorization.  After a Navy Captain in December 1799 seized the Danish vessel, the Flying Fish, pursuant to Adams's order, the owners of the ship sued the captain for trespass in U. S. maritime court.  On appeal, C. J. Marshall rejected the captain's argument that he could not be sued because he was just following presidential orders.  The Court noted that commanders "act at their own peril" when they obey invalid orders--and the president's order was outside of his powers, given the congressional action. 
 Exploring Constitutional Conflicts Homepage