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Marbury v. Madison and the Principle of Judicial Review

Daniel J. Castellano, M.A.



It has become conventional to depict the Supreme Court’s 1803 ruling in Marbury v. Madison as a pragmatic power grab by Chief Justice John Marshall, appropriating to his Court the authority to interpret the Constitution and declare void those laws that contradict its interpretation. While the power of judicial review was never explicitly affirmed in the United States before this case, such an exercise of judicial authority is necessary if a written constitution is to have any binding force. Justice Marshall cogently argued that the very notion of a written constitution, as well as the particular phrases of the U.S. Constitution, required the exercise of judicial review. Marbury v. Madison became established law not merely because it was an early precedent made at a politically opportune time, but because the force of reason makes its conclusion inevitable. For this reason, every state in the world with a written constitution has adopted its own form of judicial review, independently of U.S. jurisprudence. Had John Marshall never written his opinion on Marbury v. Madison, someone else would have done so eventually, or the Constitution would be a dead letter. It is a mistake to praise John Marshall for his supposed political cunning in arrogating power to his Court, as though he were a precursor of “activist” judges, when in fact his real merit lies in the rationally compelling force of his argument, which should be the object of our study, rather than the historical circumstances of its origin. The argument stands on its own, rendering the historical background incidental.[1]


The pertinent part of the decision begins as follows:

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 recognise certain principles, supposed to have been long and well established, to decide it.

The first such principle is the “original right” of a people to establish a constitution for future generations.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

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.

Justice Marshall next invokes a principle that is particular to the Constitution of the United States, namely that the powers of each branch of government are intended to be limited and delineated by the constitution, and not assumed to be absolute or plenary. Thus the U.S. Constitution is intended to act as a restraint on the actions of government.

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? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. 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.

Naturally, if the Constitution is to successfully limit the power of government, it is inadmissible for Congress to contradict or alter it by ordinary legistration. Otherwise, the Constitution would be a dead letter, and Congress would have unlimited power.

Between these alternatives there is no middle ground. 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 in its own nature illimitable.

Justice Marshall plainly articulates the absurdity of allowing legislatures to override the Constitution, as this would make the whole exercise of drafting a constitution of limited government pointless.

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.

This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

Marshall considers the supralegal character of a constitution to be especially evident when it is written. He obviously had in mind, by contrast, the unwritten constitution of England, the content of which was determined by Parliament. Since the British constitution is essentially what Parliament says it is, it does not act as an effective restraint on Parliament, but the legislature must be trusted to exert self-restraint and respect its own traditions. A written constitution takes away this discretionary power from a legislature, as it contains explicit directives for all to see. Justice Marshall might actually be understating his case, as it is at least conceivable for even an oral constitution to establish limited government.

We next turn to the question of what to do when a legislature passes a law that contradicts the written constitution. At first blush, it would seem that the courts can not be expected to apply such a law, if the constitution is to have any effect.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

The controversial part of Marbury is what follows, as this arrogates to the Court itself the power of determining the constitutionality of a law.

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.

It may be a bit much to say that the judiciary says what the law is in a determinative sense, as this would render the legislature impotent. Rather, the understanding is that the court must simply interpret the law it has received. When two laws contradict each other, the court must decide which law it will apply in the case at hand.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

In those cases where the Court finds a law to be in contradiction with the constitution, the constitution, rather than the ordinary law, must be applied to the case. Note that the court's function is to decide what law to apply to a particular case, not to act as a super-legislature overruling laws. The Court is obligated to act constitutionally within its own jurisdiction, so it must not apply unconstitutional laws in its decisions, just as the executive ought not to enforce a law he finds unconstitutional.

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 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 declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. 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.

Here Justice Marshall expounds at greater length the futility and absurdity of upholding legislative acts that contradict the constitution. Not only would this practice negate the general purpose of a written constitution to limit goverment, but there are particular clauses in the U.S. Constitution that explicitly limit the powers of the legislature and other branches of government.

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?

‘No person,’ says the constitution, ‘shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.’

Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these and other texts, it is evident that the “framers of the constitution” intended the document to establish a “rule for the government of courts, as well as of the legislature.” This subservience of each branch of government to the constitution is further evidenced by the oaths taken by judges and legislators to uphold the constitution of the United States. This oath would be “worse than solemn mockery” if the constitutionality of governmental acts is not to be scrutinized.

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Having reaffirmed the supralegal status of the written constitution, the Court concludes that laws in contradiction with the constitution must be void.

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.

The Court is not arrogating to itself the exclusive right to determine the constitutionality of an act of government. Far from usurping power or expanding its jurisdiction, the Court recognizes that it is bound by the constitution, as are all branches of government, so it cannot, in good faith, apply laws that contradict the constitution when ruling on a case under its jurisdiction. Other departments of government are similarly bound. A president, if he is to be faithful to his constitutional oath, should not enforce a law that contradicts the constitution, nor should he enforce an unconstitutional court order.

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In actual practice, the Supreme Court has become recognized as the sole arbiter of constitutionality,[2] perhaps in recognition of Marshall’s principle that it is “emphatically the province and duty of the judicial department to say what the law is.” Justice Marshall was speaking in the context of deciding cases under the Court’s jurisdiction. Since rulings are made in accordance with the law, the question of whether the written constitution supersedes ordinary legistration is inescapable to the jurist. This finding of constitutionality, however, should not be construed to have force beyond the judge’s domain, namely, the particular cases on which they rule.

What if the executive believes that the Court has erred in its finding of constitutionality, or has issued a court order that seems unconstitutional? If he is to be faithful to his oath, should he not refuse to enforce it? We are reminded of Andrew Jackson’s statement decades later, “John Marshall has made his decision; let him enforce it now if he can.” The balance of power among the three branches shifts over time depending on the popularity or audacity of their office holders. The constitutional problem upon which Marbury touches is the question of deciding when a branch of government has overstepped its bounds. Who is to say when a branch of government has acted unconstitutionally?

In the context of jurisprudence, it is emphatically necessary for the courts to be able to rule on the constitutionality of legislative acts that are proposed as rules of jurisprudence. Here the court is not expanding its power into the legislative sphere, but determining which rules to apply in its own jurisprudence, much as it does when dealing with contradictory statutes. Nothing in Marbury precludes the possibility that other branches of government might also make judgments of constitutionality when conducting their activity. A legislature should refrain from voting on bills that seem unconstitutional, and they might refuse to fund activities of other departments that are unconstitutional. Lastly, the people themselves might vote out of office those officials who erode constitutional values. Since the constitution has no power to enforce itself, it is the duty of all citizens to uphold it, particularly those who have sworn an oath of public office.

The notion of a common trust of all three branches to make findings of constitutionality has not won much support in modern American politics, either at the state or federal levels. When a supreme court declares a law unconstitutional, or issues a policy directive based on an interpretation of the constitution, executives at the state and federal level feel obligated to comply, no matter how stridently they disagree with the court’s finding. This amounts to an extraordinary concession of power, far beyond anything required by the constitution itself or by Marbury. It serves the political convenience of deflecting difficult issues to unelected judges, but it also reflects a sincere conviction that findings of constitutionality are solely the province of the judiciary.

As evidenced by the example of Andrew Jackson, the power of judicial review was not always considered beyond appeal. Before Marbury, it was used only against minor statutes, and it was not employed against a major act of Congress again until the infamous Dred Scott decision. Thus the early history of judicial review is stained with horrible misuse that would vindicate the principle of all three branches checking the unconstitutional acts of the others. In the case of Supreme Court justices, who are appointed for life, it is especially important that their unconstitutional acts be checked by other branches through non-cooperation or impeachment of the offending justices, since they cannot be voted out of office.

On the other hand, the independence of the judiciary from political contests gives their judgements of constitutionality a credibility that others may lack. Moreover, judges are expected to have expertise in the interpretation of law, whereas such ability is hardly expected of officials in the other branches. Thus it seems a matter of deference to the most expert, impartial authorities to leave questions of constitutionality to the judiciary.

Whatever the merits of such an argument, the exclusive right of the judiciary to decide constitutional questions is not derivable from the text of the constitution, nor from the Marbury decision, nor from the writings of the Framers. All of these assert the supremacy of the constitution, as an embodiment of the original will of a sovereign people, over all branches of government, including the judiciary. It is not in the spirit of aggrandizement, but of humility before the constitution, that the Court asserts a right to judicial review in the execution of its own proper function of deciding cases. The arguments used in Marbury for judicial review would apply just as well to the other branches of government, who must be mindful of their constitutional duty before complying with an apparently unconstitutional act of one of the other branches. A lack of legal expertise should not inhibit legislators or executives from challenging the constitutionality of judicial acts, since the Constitution was deliberately written in broad, non-technical language, and its force comes from the assent of the population that ratified it, themselves not always expert jurists.

Since an exclusive judicial right to determine the constitutionality of government acts cannot be derived from the Constitution itself, nor from the reasoning of Marbury, we should not hesitate to apply a similar duty of constitutional review to the other independent branches of government. The framers did not expect to resolve balance-of-power questions by giving the judiciary exclusive review powers, as evidenced by their failure to explicitly ascribe such power, as well as their belief that the judiciary was, if anything, the weakest of the three branches, while the legislature was held in high esteem. If the Supreme Court reserved the exclusive right to tell the legislature what its laws meant, and which of them were void, with no possibility of appeal, then the legislature would be woefully subordinate to the Courts. Clearly, the power of speech is rendered null if another has the exclusive power to determine the meaning of what is spoken. This is why courts must restrict themselves to rules of interpretation and consideration of legislative intent, lest they should transcend their bounds. While the other branches have no right to challenge the Court’s interpretation of a statute, they may resist court orders that contradict the powers assigned to the judiciary in the Constitution.

Defiance of the judiciary might be abused in order to resist rulings that are politically distasteful, but the remedy for such abuse is not to give exclusive constitutional review to the courts, but the impeachment of officials who would unjustly defy the courts. The threat of impeachment, long used for petty criminal acts, is most eminently appropriate for officials who have transgressed the constitutionally defined limits of their power. Since the legislature can impeach judges, but the president can appoint them, it requires the cooperation of both in order to displace a judge, and if they collude unjustly to impeach a judge, they may be held accountable by the electorate. On the contrary, making the Supreme Court the sole arbiter of constitutional questions would enable it to expand its power at the expense of the legislature and the executive, leaving them no legal remedy.

In our time, we have too often seen state and federal judiciaries overturn long-standing precedents and redefine basic legal terms with horrifically specious arguments, as well as issuing rulings that practically amount to detailed statutory legislation or executive orders. Governors and legislators rage against such decisions, but act as though they were powerless to do anything about it, save amend the constitution to make it state more explicitly its original meaning prior to the misguided court decision. The amendment process being much slower than judicial rulings, it is easy for the courts to reform society according to their philosophy before the other branches can redress the situation. One way to curtail such “judicial activism” would be for the other branches to simply assert, in Jacksonian fashion, their right to defy unconstitutional judicial acts. Such defiance should be exerted with circumspection, but if this right is never exercised, it would represent a terrible shift in the balance of power on matters of criminal and civil law, in favor of the least democratic branch of government.

The independence of the judiciary is necessary in order to guarantee the rights of the individuals whose cases are being tried, but such independence should not be construed as carte blanche authorization to egregiously misinterpret laws in a way that would require across-the-board state action. The Court’s judgment should be restricted to particular cases, and attempts to impose general rules on what types of laws a legislature may pass or orders an executive may enforce may be defied by the other branches if they have cause to suspect unconstitutional action by the Court. All three branches of government are sworn to uphold the Constitution, so all three must take a stand against perceived violations if their oaths are to have meaning. Otherwise, the legislators and executive officials might as well swear an oath of loyalty to the decisions of the Supreme Court.

Since each of the three branches of government are directly subordinate to the Constitution and not to each other (and in that sense are coequal, though it is arguable that their powers are of unequal value), it is inadmissible that only one of the branches should have the authority to decide what is constitutional. Although a tyranny of the judiciary is less fearsome than a tyranny of those who wield the purse or the sword, it is still tyranny if any group of men claims exclusive right to determine what is the will of the people.

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See also: Brown v. Board of Ed. | Common Law & Civil Juris.


[1] There are many sources that treat the historical and political circumstances of Marbury v. Madison. Such analysis shows a probable political motivation in Justice Marshall’s choice of this particular case to introduce the doctrine of judicial review, but this does not derogate from the quality of his argument in favor of the doctrine, which would certainly have been necessary at some point in time.

[2] The Court was long reluctant to use this power, and did not invoke it again to void an act of Congress until the infamous Dred Scott decision. It was only after the Civil War amendments that judicial review became a regular part of Supreme Court jurisprudence.

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2006, 2012 Daniel J. Castellano. All rights reserved. http://www.arcaneknowledge.org