Marbury v. Madison: Takeaways

1. Since Marbury commenced his case in the Supreme Court of the United States, the issue was whether the Supreme Court had original jurisdiction to hear this case. If no original jurisdiction, then the case must be dismissed.

2. Be sure you understand how the Court interpreted (almost certainly misinterpreted) section 13 of the Judiciary Act as granting the Court original jurisdiction to issue writs of mandamus. The Court’s incorrect interpretation of section 13 is the key to understanding this case. Make sure you carefully read and re-read section 13 until you understand why the Court’s interpretation was almost certainly incorrect.

3. Once the Court reads section 13 as giving the Court original jurisdiction to issue writs of mandamus, the constitutional issue becomes whether the Constitution limits the Court’s original jurisdiction. That requires the Court to interpret Art. II, sect. 2, which provides:

 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.

Since Marbury is neither a foreign ambassador or foreign public minister or consul, nor a “state,” the issue now is whether Congress can add new cases to the Supreme Court’s original jurisdiction.

4. The Court interprets Art. III, sect. 2 as providing a ceiling on the Court’s original jurisdiction (this much and no more). See p. 34. Thus, Congress may not pass laws expanding the Court’s original jurisdiction.

5. Thus, section 13 of the Judiciary Act is inconsistent with Art, III, sect. 2 of the Constitution. And the issue becomes….

6. Does the Court have the power of judicial review, the power to declare a law enacted by Congress unconstitutional and thus void.

7. The Court concludes that it does indeed have the power to declare an Act of Congress unconstitutional (the power of judicial review) because it is bound by the written Constitution and “the constitution is superior to an ordinary act of the legislature.” (casebook p. 36)

8. Notice that if the Court had correctly interpreted section 13 of the Judiciary Act, it could have reached the same result (dismissed for lack of original jurisdiction) without having to declare an Act of Congress unconstitutional. Properly understood, section 13 of the Judiciary Act does not expand the original jurisdiction of the Court and therefore is not in conflict with Art. III, sect. 2 of the Constitution.

9. Finally, notice that nothing in Art. III or anywhere else in the Written Constitution gives the Court the power of judicial review or to declare acts of federal or state laws or policies unconstitutional. This power was created by the Court itself in Marbury v. Madison. It is perhaps one reasonable interpretation of judicial power under Art. III, but the idea of judicial supremacy is not written into the text of the Constitution. 

Marbury is the most important decision in the history of the Supreme Court because it is the source of the power that the Court has ever since exercised to review the constitutionality of legislative and executive laws, rules, and policies. As Chief Justice Marshall put it (casebook p. 36), “It is emphatically the province and duty of the judicial department to say what the law is.” But notice he also said (casebook p. 37) that by the very nature of a “written constitution” it is essential “that a law repugnant to  the constitution is void; and that courts, as well as other departments, are bound by the instrument.”

 

 So query! Is a judicial decision repugnant to the Written Constitution void and thus not a valid precedent?