1. Background

2. Decision
    Marbury's commission and legal remedy  Jurisdiction  Judicial review and striking down the law 

3. Analysis

4. Criticism

5. Impact

6. See also

7. Notes

8. References
    Citations  Works cited 

9. Further reading

10. External links

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that contravene the U.S. Constitution. Decided in 1803, Marbury remains the single most important decision in American constitutional law.{{sfnp|Chemerinsky|2015|p=37}} The Court's landmark decision established that the U.S. Constitution is actual "law", not just a statement of political principles and ideals, and helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

The case originated from the political and ideological rivalry between outgoing U.S. President John Adams, who espoused the pro-business and pro-national-government ideals of Alexander Hamilton and the Federalist Party, and incoming President Thomas Jefferson, who led the Democratic-Republican Party and favored agriculture and decentralization.{{sfnp|McCloskey|Levinson|2010|p=25}} Adams had lost the U.S. presidential election of 1800 to Jefferson, and in March 1801, just two days before his term as president ended, Adams appointed several dozen Federalist Party supporters to new circuit judge and justice of the peace positions in an attempt to frustrate Jefferson and his supporters in the Democratic-Republican Party.{{sfnp|Chemerinsky|2015|pp=37–38}} The U.S. Senate quickly confirmed Adams's appointments, but upon Jefferson's inauguration two days later, a few of the new judges' commissions still had not been delivered.{{sfnp|Chemerinsky|2015|pp=37–38}} Jefferson believed the commissions were void because they had not been delivered in time, and instructed his new Secretary of State, James Madison, not to deliver them.{{sfnp|Pohlman|2005|p=21}} One of the men whose commissions had not been delivered in time was William Marbury, a Maryland businessman who had been a strong supporter of Adams and the Federalists. In late 1801, after Madison had repeatedly refused to deliver his commission, Marbury filed a lawsuit in the Supreme Court asking the Court to issue a writ of mandamus forcing Madison to deliver his commission.{{sfnp|Chemerinsky|2015|p=38}}

In an opinion written by Chief Justice John Marshall, the Court held firstly that Madison's refusal to deliver Marbury's commission was illegal, and secondly that it was normally proper for a court in such situations to order the government official in question to deliver the commission.{{sfnp|Chemerinsky|2015|pp=39–40}} However, in Marbury's case, the Court did not order Madison to comply. Examining the law Congress had passed that gave the Supreme Court jurisdiction over types of cases like Marbury's, Marshall found that it had expanded the definition of the Supreme Court's jurisdiction beyond what was originally set down in the U.S. Constitution.{{sfnp|Chemerinsky|2015|p=42}} Marshall then struck down the law, announcing that American courts have the power to invalidate laws that they find to violate the Constitution.{{sfnp|Epstein|2014|p=89}} Because this meant the Court had no jurisdiction over the case, it could not issue the writ that Marbury had requested.

Background

In the fiercely contested U.S. presidential election of 1800, the three major candidates were Thomas Jefferson, Aaron Burr, and John Adams, who was the incumbent U.S. president.{{sfnp|Chemerinsky|2015|p=37}} Adams was aligned with the pro-business and pro-national-government politics of Alexander Hamilton and the Federalist Party, while Jefferson and Burr were part of the opposing Democratic-Republican Party, which favored agriculture and decentralization. American public opinion had gradually turned against the Federalists in the months prior to the election, mainly due to their use of the controversial Alien and Sedition Acts, as well as growing tensions with Great Britain, with whom the Federalists favored close ties.{{sfnp|McCloskey|Levinson|2015|pp=23–24}} Jefferson easily won the popular vote, but only narrowly defeated Adams in the Electoral College.{{sfnp|Paulsen|Calabresi|McConnell|Bray|2013|p=140}}{{notetag|The crucial votes giving Jefferson his close victory came from the Southern states{{mdash}}including his home state of Virginia{{mdash}}and their "slavery bonus" from the Three-Fifths Compromise of the U.S. Constitution, which allowed Southern states to include three-fifths of their slave population as part of their total citizen population when determining apportionment in the Electoral College and U.S. House of Representatives.{{sfnp|Paulsen|Calabresi|McConnell|Bray|2013|p=140}}}}

As the results of the election became clear in early 1801, Adams and the Federalists became determined to exercise their influence in the weeks remaining before Jefferson took office,{{sfnp|Chemerinsky|2015|p=38}} and did all they could to fill federal offices with "anti-Jeffersonians" who were loyal to the Federalists.{{sfnp|McCloskey|Levinson|2010|p=25}} On March 2, 1801, just two days before his presidential term ended, Adams nominated nearly 60 Federalist supporters to circuit judge and justice of the peace positions the Federalist-controlled Congress had newly created with the Judiciary Act of 1801. These last-minute nominees{{mdash}}whom Jefferson's supporters derisively referred to as the "Midnight Judges"{{sfnp|Brest|Levinson|Balkin|Amar|2018|p=115}}{{mdash}}included William Marbury, a prosperous businessman from Maryland. An ardent Federalist, Marbury was active in Maryland politics and had been a vigorous supporter of the Adams presidency.{{sfnp|Miller|2009|p=44}}

The following day, March 3, the Senate approved Adams's nominations en masse. The appointees' commissions were immediately written out, then signed by Adams and sealed by his Secretary of State, John Marshall, who had been named the new Chief Justice of the Supreme Court in January but continued also serving as Secretary of State for the remainder of Adams's term until Jefferson took office.{{sfnp|Chemerinsky|2015|p=38}}{{sfnp|Paulsen|Calabresi|McConnell|Bray|2013|p=141}} Marshall then dispatched his younger brother James Markham Marshall to deliver the commissions to the appointees.{{sfnp|Chemerinsky|2015|p=38}} With only one day left before Jefferson's inauguration, James Marshall was able to deliver most of the commissions, but a few{{mdash}}including Marbury's{{mdash}}were not delivered.{{sfnp|Chemerinsky|2015|p=38}}

The day after, March 4, 1801, Thomas Jefferson was sworn in and became the 3rd President of the United States. As soon as he was able, Jefferson instructed his new Secretary of State, James Madison, to withhold the undelivered appointments.{{sfnp|Chemerinsky|2015|p=38}} In Jefferson's opinion, the commissions were void because they had not been delivered in time.{{sfnp|Pohlman|2005|p=21}} Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. Over the next several months, Madison continually refused to deliver Marbury's commission to him. Finally, in December 1801, Marbury filed suit against Madison in the U.S. Supreme Court, asking the Court to issue a writ of mandamus forcing Madison to deliver Marbury's commission.{{sfnp|Chemerinsky|2015|p=38}} This lawsuit resulted in the case of Marbury v. Madison.

Decision

On February 24, 1803,{{notetag|In retaliation for the Federalists' appointment of the "Midnight Judges", Jefferson and the new Democratic-Republican Congressmen successfully canceled the Supreme Court's 1802 term, and so all pending cases{{mdash}}including Marbury v. Madison{{mdash}}could not be decided until 1803.}} the Court rendered a unanimous (4–0){{notetag|Due to illnesses, Justices William Cushing and Alfred Moore did not sit for oral argument or participate in the Court's decision.}} decision against Marbury. The Court's opinion was written by the Chief Justice, John Marshall. Marshall structured the Court's opinion around a series of three questions that Marshall answered in turn:

• First, did Marbury have a right to his commission?
• Second, if Marbury had a right to his commission, was there a legal remedy for him to obtain it, and if so, what was it?
• Third, if there was such a remedy, could the Supreme Court legally issue it?{{sfnp|Chemerinsky|2015|p=39}}

Marbury's commission and legal remedy

The Court quickly answered the first two questions affirmatively. First, Marshall wrote that Marbury had a right to his commission because all appropriate procedures were followed: the commission had been properly signed and sealed.{{sfnp|Chemerinsky|2015|pp=39–40}} Madison contended that the commissions were void if not delivered, but the Court disagreed, and said that the delivery of the commission was merely a custom, not an essential element of the commission itself.{{sfnp|Chemerinsky|2015|pp=39–40}}

Because Marbury's commission was valid, Marshall wrote, Madison's withholding of it was "violative of a vested legal right" on Marbury's part.{{sfnp|Chemerinsky|2015|p=40}}

Turning to the second question, the Court said that the laws clearly afforded Marbury a remedy. Marshall wrote that "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded"{{snd}}a rule derived from the traditional Roman legal maxim ubi jus, ibi remedium ("where there is a legal right, there is also a legal remedy"), which was well established in the early Anglo-American common law.{{sfnp|Amar|1989|p=447}}{{sfnp|Amar|1987|pp=1485–86}} In "one of the most important and inspiring passages" of the opinion,{{sfnp|Amar|1987|p=1486}} Marshall wrote:

Marshall then confirmed that a writ of mandamus{{mdash}}a type of court order that commands a government official to perform an act he or she is legally required to perform{{mdash}}was the proper remedy for Marbury's situation.{{sfnp|Brest|Levinson|Balkin|Amar|pp=124–25}} The specific issue, however, was whether a court, which was part of the judicial branch of the government, could give Marbury a remedy against Madison, who as Secretary of State was part of the executive branch of the government.{{sfnp|Chemerinsky|2015|p=40}} The Court held that so long as the remedy involved a mandatory duty to a specific person, and not a political matter left to discretion, the courts could provide the legal remedy.{{sfnp|Chemerinsky|2015|p=40}} In a now well-known line of the opinion that borrows a phrase John Adams had drafted in 1779 for the Massachusetts State Constitution, Marshall wrote: "The government of the United States has been emphatically termed a government of laws, and not of men."^[1]

Jurisdiction

This brought Marshall to the most important issue of the opinion: the propriety of the Supreme Court's jurisdiction over the matter, which would determine whether or not the Court had the power to issue the writ Marbury requested.{{sfnp|Chemerinsky|2015|p=41}} This issue depended entirely on how the Court interpreted the text of a law Congress had passed that dealt with the Supreme Court's original and appellate jurisdictions. As Marshall explains in the opinion, under {{em|original jurisdiction}}, a court has the power to be the first to hear and decide a case; under {{em|appellate jurisdiction}}, a party to an instituted decision appeals to a higher court, which has the power to "revise and correct" the previous decision.{{sfnp|Epstein|2014|p=89}}

Congress had passed the Judiciary Act of 1789 to establish the American federal court system, since Article III of the U.S. Constitution only specifies that there is to be a Supreme Court, and leaves the rest of the federal judicial power to reside in "such inferior Courts as the Congress may from time to time ordain and establish."^[3] The Judiciary Act contained a section that defines areas in which the Supreme Court has original jurisdiction, and areas in which it has appellate jurisdiction.

Marbury had argued that this section gave the Supreme Court the authority to issue writs of mandamus when hearing cases under original jurisdiction, not just appellate jurisdiction.{{sfnp|Chemerinsky|2015|p=41}} Although the language on the power to issue writs of mandamus appears with the sentence on appellate jurisdiction, rather than with the earlier sentences on original jurisdiction, a semicolon separates it from the specific clause on appellate jurisdiction. The section itself does not make clear whether the mandamus clause was intended to be read as part of the appellate sentence or on its own{{mdash}}in the opinion, Marshall quoted only the end of the section{{sfnp|Van Alstyne|1969|p=15}}{{mdash}}and the law's wording can plausibly be read either way.{{sfnp|Nowak|Rotunda|2012|loc=§ 1.3, p. 50}} In the end, Marshall agreed with Marbury, and interpreted section 13 of the Judiciary Act to authorize mandamus on original jurisdiction.{{sfnp|Chemerinsky|2015|p=42}}{{sfnp|Fallon|Manning|Meltzer|Shapiro|2015|pp=69–70}}

However, Marshall then noted that this authorization clashed with Article III of the Constitution, which establishes the judicial branch of the U.S. government. Section 2 of Article III defines the nature of the Supreme Court's original and appellate jurisdiction:

This section says that the Supreme Court only has original jurisdiction over cases where a U.S. State is a party to a lawsuit or where a lawsuit involves foreign dignitaries. Neither of these categories covered Marbury's justice of the peace commission, and so, according to the Constitution, the Court could only have heard Marbury's case while exercising appellate jurisdiction.{{sfnp|Epstein|2014|p=89}}{{sfnp|Chemerinsky|2015|p=42}} However, Marshall had interpreted the Judiciary Act to have given the Court original jurisdiction over the matter: this meant that the Judicial Act apparently took the initial scope of the Supreme Court's original jurisdiction{{mdash}}which was limited to cases either directly involving States or involving foreign dignitaries{{mdash}}and expanded it to include issuing writs of mandamus. Marshall ruled that Congress cannot increase the Supreme Court's original jurisdiction as it was set down in the Constitution, and therefore that the relevant portion of Section 13 of the Judiciary Act violated Article III of the Constitution.{{sfnp|Chemerinsky|2015|p=42}}

Judicial review and striking down the law

After ruling that it conflicted with the Constitution, Marshall struck down the relevant portion of the Judiciary Act in the U.S. Supreme Court's first ever declaration of the power of judicial review.{{sfnp|Epstein|2014|p=89}}{{sfnp|Currie|1997|p=53}} Marshall ruled that American federal courts have the power to refuse to give any effect to congressional legislation that is inconsistent with their interpretation of the Constitution – a move known as "striking down" laws.{{sfnp|Tribe|2000|p=207}}

The U.S. Constitution does not explicitly give the American judiciary the power of judicial review.{{sfnp|Tribe|2000|pp=207–08}} Nevertheless, Marshall's opinion gives a number of reasons in support of the judiciary's possession of the power. First, Marshall reasoned that the written nature of the Constitution inherently established judicial review.{{sfnp|Prakash|Yoo|2003|p=914}}{{sfnp|Tribe|2000|p=210}} In a line borrowed from Alexander Hamilton's essay Federalist No. 78, Marshall wrote: "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written."^[4] He continued:

Next, Marshall stated that deciding the constitutionality of the laws it applies is an inherent part of the American judiciary's role.{{sfnp|Chemerinsky|2015|p=42}} In what has become the most famous and frequently quoted line of the opinion, Marshall wrote: "It is emphatically the province and duty of the Judicial Department to say what the law is." ^[6] Marshall reasoned that the Constitution places limits on the American government's powers, and that those limits would be meaningless unless they were subject to judicial review and enforcement.{{sfnp|Tribe|2000|p=210}}{{sfnp|Chemerinsky|2015|p=43}} He reasoned that the Constitution's provisions limiting Congress's power{{mdash}}such as the export tax clause, or the prohibitions on bills of attainder and ex post facto laws{{mdash}}meant that in some cases judges would be forced to choose between enforcing the Constitution or following Congress.{{sfnp|Nowak|Rotunda|2012|loc=§ 1.3, pp. 52–53}}

Marshall wrote that the question of whether a federal statute that was contrary to the Constitution could be the law of the land was an interesting, but not difficult, question: "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."^[7] He held "virtually as a matter of iron logic" that in the event of conflict between the Constitution and statutory laws passed by Congress, the constitutional law must be supreme.{{sfnp|Epstein|2014|p=89}} Again borrowing from Federalist No. 78,{{sfnp|Epstein|2014|p=90}} Marshall stated:

Third, Marshall stated that denying the supremacy of the Constitution over Congress's acts would mean that "courts must close their eyes on the constitution, and see only the law."^[9] He reasoned that this, in turn, would make Congress omnipotent, since none of the laws it passed would ever be invalid:

Marshall then gave several other reasons in favor of judicial review. He argued that the authorization in Article III of the Constitution that the Court can decide cases arising "under this Constitution" implied that the Court had the power to strike down laws conflicting with the Constitution.{{sfnp|Chemerinsky|2015|p=43}} This, Marshall wrote, meant that the Founders were willing to have the American judiciary use and interpret the Constitution when judging cases. He also argued that federal judges' oaths of office—in which they swear to discharge their duties impartially and "agreeably to the Constitution and laws of the United States"—requires them to support the Constitution.{{sfnp|Nowak|Rotunda|2012|loc=§ 1.3, p. 53}} Lastly, Marshall argued that judicial review is implied in Article VI of the Constitution, since it declares the supreme law of the United States to be not the Constitution and the laws of the United States in general, but rather the Constitution and laws made "in Pursuance thereof".{{sfnp|Chemerinsky|2015|p=44}}{{sfnp|Nowak|Rotunda|2012|loc=§ 1.3, p. 53}}

Analysis

Besides its inherent legal questions, the case of Marbury v. Madison also created a difficult political dilemma for Marshall and the rest of the Supreme Court.{{sfnp|McCloskey|Levinson|2010|p=26}} If the Court ruled in favor of Marbury and issued a writ of mandamus ordering Madison to deliver the commission, Jefferson and Madison would probably have simply ignored the order, which would have made the Court look impotent and emphasized the "shakiness" of the judiciary.{{sfnp|McCloskey|Levinson|2010|p=26}} On the other hand, a plain and simple ruling against Marbury would have given Jefferson and the Democratic-Republicans a clear political victory.{{sfnp|McCloskey|Levinson|2010|p=26}}

Marshall avoided both problems and solved the dilemma. First, he ruled that Madison's withholding of Marbury's commission was illegal, which gave the Federalists some comfort; but then, he said the Court could not give Marbury his requested writ of mandamus, giving Jefferson and the Democratic-Republicans the result they desired. Having done so, Marshall maneuvered Marbury's simple petition for a writ of mandamus into a question that went to heart of American constitutional law itself in what the American constitutional law scholar Laurence Tribe described as "an oft-told tale ... [that] remains awe-inspiring".{{sfnp|Tribe|2000|p=208, note 5}} In his well-known history of the Supreme Court, the American political historian Robert G. McCloskey (1916–1969) appraised Marshall's handling of the case as follows:

Marshall had been looking for a case that was suitable for introducing judicial review, and was eager to use the situation in Marbury to establish his claim.{{sfnp|Nowak|Rotunda|2012|loc=§ 1.4(a), p. 55}} He introduced judicial review{{mdash}}a move Jefferson decried{{mdash}}but used it to strike down a provision of a law that he read to have expanded the Supreme Court's powers,{{sfnp|Chemerinsky|2015|p=44}} and thereby produced Jefferson's hoped-for result of Marbury losing his case. In essence, "Marshall seized the occasion to uphold the institution of judicial review, but he did so in the course of reaching a judgment that his political opponents could neither defy nor protest."{{sfnp|Fallon|Manning|Meltzer|Shapiro|2015|p=69}} Though Jefferson criticized Marshall's opinion, he accepted it, and Marshall's decision in Marbury "articulate[d] a role for the federal courts that survives to this day."{{sfnp|Chemerinsky|2015|pp=44–45}} In the words of the American legal scholar Erwin Chemerinsky: "The brilliance of Marshall's opinion cannot be overstated."{{sfnp|Chemerinsky|2015|p=44}}

Criticism

Given its preeminent position in American constitutional law, Marshall's opinion in Marbury v. Madison continues to be the subject of critical analysis and historical inquiry.{{sfnp|Nowak|Rotunda|2012|loc=§ 1.4(a), p. 54}} In a 1955 Harvard Law Review article, U.S. Supreme Court Justice Felix Frankfurter emphasized that one can criticize Marshall's opinion in Marbury without demeaning it: "The courage of Marbury v. Madison is not minimized by suggesting that its reasoning is not impeccable and its conclusion, however wise, not inevitable."^[11]

Criticisms of Marshall's opinion in Marbury usually fall into two general categories.{{sfnp|Nowak|Rotunda|2012|loc=§ 1.4(a), p. 54}} First, some criticize the way Marshall "strove" to reach the conclusion that the U.S. Supreme Court has constitutional authority over the other branches of the U.S. government. In the present era, American courts generally follow the principle of "constitutional avoidance": if a certain interpretation of a law raises constitutional problems, they prefer to use alternative interpretations that avoid these problems, so long as the alternative interpretations are still plausible. {{sfnp|Brest|Levinson|Balkin|Amar|2018|pp=133–34}} In Marbury, Marshall could have avoided the constitutional questions through different legal rulings: for example, if he had ruled that Marbury did not have a right to his commission until it was delivered, or if he had ruled that refusals to honor political appointments could only be remedied through the political process and not the judicial process, it would have ended the case immediately, and the Court would not have reached the case's constitutional issues.{{sfnp|Nowak|Rotunda|2012|loc=§ 1.4(a), p. 55}} Marshall did not do so, and many legal scholars have criticized him for it.{{sfnp|Brest|Levinson|Balkin|Amar|2018|pp=133–34}} However, others have noted that the "constitutional avoidance" principle did not exist in 1803, and in any case is "only a general guide for Court action", not an ironclad precept.{{sfnp|Nowak|Rotunda|2012|loc=§ 1.4(a), pp. 55–56}} Alternatively, it has also been argued that the view that Marshall "strove" to create a controversy largely vanishes when the case is viewed from the perspective of the late 18th century, when American colonies' and states' supreme courts were largely modeled on the British Court of King's Bench and its inherent mandamus powers.{{sfnp|Pfander|2001|pp=1518–19}}

Second, Marshall's arguments for the Court's authority are sometimes said to be mere "series of assertions", rather than substantive reasons logically laid out to support his position.{{sfnp|Nowak|Rotunda|2012|loc=§ 1.4(a), p. 56}} It is generally agreed that Marshall's series of assertions regarding the U.S. Constitution and the actions of the other branches of government do not "inexorably lead to the conclusion that Marshall draws from them".{{sfnp|Nowak|Rotunda|2012|loc=§ 1.4(a), p. 56}} Marshall's assertion of the American judiciary's authority to review executive branch actions was the most controversial issue when Marbury was first decided, and several subsequent U.S. presidents have tried to dispute it, to varying degrees.{{sfnp|Nowak|Rotunda|2012|loc=§ 1.4(a), p. 56}}

Additionally, it is questionable whether Marshall should have participated in the Marbury case because of his participating role in the dispute.{{sfnp|Chemerinsky|2015|p=39}} Marshall was still the acting Secretary of State when the nominations were made, and he himself had signed Marbury and the other men's commissions and had been responsible for their delivery.{{sfnp|Chemerinsky|2015|p=39}} This potential conflict of interest raises strong grounds for Marshall to have recused himself from the case.{{sfnp|Chemerinsky|2015|p=39}} In hindsight, the fact that Marshall did not recuse himself from Marbury is likely indicative of his eagerness to hear the case and use it to establish judicial review.{{sfnp|Nowak|Rotunda|2012|loc=§ 1.4(a), p. 55}}

Impact

Marbury v. Madison remains the single most important decision in American constitutional law.{{sfnp|Chemerinsky|2015|p=37}} It established American judges' authority to review the constitutionality of Congress's legislative acts,{{sfnp|Chemerinsky|2015|p=37}} and to this day the Supreme Court's power to review the constitutionality of American laws at both the federal and state level "is generally rested upon the epic decision of Marbury v. Madison."{{sfnp|Van Alstyne|1969|p=1}}

Although the Court's opinion in Marbury established judicial review in American federal law, it did not create or invent the concept. Some 18th-century British jurists had argued that British courts had the power to circumscribe Parliament, and the principle became generally accepted in Colonial America{{mdash}}especially in Marshall's native Virginia{{sfnp|Treanor|2005|p=556}}{{mdash}}due to the idea that in America only the people were sovereign, rather than the government, and therefore that the courts should only implement legitimate laws.{{sfnp|Cornell|Leonard|2008|p=540}} By the time of the Constitutional Convention in 1787, American courts' "independent power and duty to interpret the law" was well established.{{sfnp|Paulsen|2003|p=2707}} Nevertheless, Marshall's opinion in Marbury was the power's first announcement and exercise by the Supreme Court. It made the practice more routine, rather than exceptional, and prepared the way for the Court's opinion in the 1819 case McCulloch v. Maryland, in which Marshall implied that the Supreme Court was the supreme interpreter of the U.S. Constitution.{{sfnp|Cornell|Leonard|2008|p=542}}

Marbury also established that the power of judicial review covers actions by the executive branch – the President and his cabinet members. However, American courts' power of judicial review over executive branch actions only extends to matters in which the executive has a legal duty to act or refrain from acting, and does not extend to matters that are entirely within the President's discretion, such as whether to veto a bill or whom to appoint to an office.{{sfnp|Chemerinsky|2015|p=41}} This power has been the basis of many subsequent important Supreme Court decisions in American history, such as the 1974 case United States v. Nixon, in which the Court held that President Richard Nixon had to comply with a subpoena to provide tapes of his conversations for use in a criminal trial related to the Watergate scandal, and which ultimately led to Nixon's resignation.{{sfnp|Chemerinsky|2015|p=41}}{{sfnp|Tribe|2000|p=179}}

Although it is a potent check on the other branches of the U.S. government, the power of judicial review was rarely exercised in early American history. After deciding Marbury in 1803, the Supreme Court did not strike down another federal law until 1857, when the Court struck down the Missouri Compromise in the now-infamous case Dred Scott v. Sandford, a ruling that contributed to the outbreak of the American Civil War.{{sfnp|Chemerinsky|2015|p=45}}

See also

• Australian Communist Party v Commonwealth
• Hylton v. United States
• Calder v. Bull
• Stuart v. Laird (1803)

Notes

References

Citations

Works cited

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• {{cite journal | first=Akhil Reed | last=Amar | title=Marbury, Section 13, and the Original Jurisdiction of the Supreme Court | journal=University of Chicago Law Review | year=1989 | volume=56 | number=2 | pages=443–99 | doi=10.2307/1599844 | ref=harv | jstor=1599844 | url=http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2019&context=fss_papers }}
• {{cite book | first1 = Paul | last1 = Brest | first2 = Sanford | last2 = Levinson | first3 = Jack M. | last3 = Balkin | first4 = Akhil Reed | last4 = Amar | first5 = Reva B. | last5 = Siegel | title = Processes of Constitutional Decisionmaking: Cases and Materials | edition = 7th | year = 2018 | location = New York | publisher = Wolters Kluwer | ref = harv | isbn = 978-1-4548-8749-2 }}
• {{cite book | first=Erwin | last=Chemerinsky | authorlink = Erwin Chemerinsky | title=Federal Jurisdiction | edition= 6th | location=New York | publisher=Wolters Kluwer | year=2012 | isbn=978-1-4548-0402-4 | ref=harv }}
• {{cite book | first=Erwin | last=Chemerinsky | title=Constitutional Law: Principles and Policies | edition= 5th | location=New York | publisher=Wolters Kluwer | year=2015 | isbn=978-1-4548-4947-6 | ref=harv }}
• {{cite book | first1 = Saul | last1 = Cornell | first2 = Gerald | last2 = Leonard | chapter = The Consolidation of the Early Federal System, 1791–1812 | pages=518–54 | editor-first1 = Michael | editor-last1 = Grossberg | editor-first2 = Christopher | editor-last2 = Tomlins | title = The Cambridge History of Law in America, Volume I: Early America (1580–1815) | location = Cambridge | publisher = Cambridge University Press | year = 2008 | ref=harv | isbn = 978-0-521-80305-2 }}
• {{cite book|first=David P. |last=Currie|title=The Constitution in Congress: The Federalist Period 1789–1801|url=https://books.google.com/books?id=nC4KbZVBeYgC|year=1997|location=Chicago|publisher=University of Chicago Press|ref=harv|isbn=9780226131146}}
• {{cite book | last = Epstein | first = Richard A. | authorlink=Richard Epstein | title = The Classical Liberal Constitution: The Uncertain Quest for Limited Government | location = Cambridge, Massachusetts | publisher = Harvard University Press | year = 2014 | isbn= 978-0-674-72489-1 | ref=harv }}
• {{cite book | first = Richard H., Jr. | last = Fallon | first2 = John F. | last2 = Manning | first3 = Daniel J. | last3 = Meltzer | first4 = David L. | last4 = Shapiro | title = Hart and Wechsler's The Federal Courts and the Federal System | edition = 7th | location = St. Paul, Minnesota | publisher = Foundation Press | year = 2015 | isbn = 978-1-60930-427-0 | ref = harv }}
• {{cite journal | first=Felix | last=Frankfurter | authorlink=Felix Frankfurter | title=John Marshall and the Judicial Function | journal=Harvard Law Review | volume=69 | issue=2 | year=1955 | pages=217–38 | ref=harv | doi=10.2307/1337866 | jstor=1337866 }}
• {{cite book | first1=Robert G. | last1=McCloskey | first2=Sanford | last2=Levinson | authorlink2=Sanford Levinson | title=The American Supreme Court | location=Chicago | publisher=University of Chicago Press | year=2010 | edition= 5th | ref=harv | isbn=978-0-226-55686-4 }}
• {{cite book | first=Mark Carlton | last=Miller | title=The View of the Courts from the Hill: Interactions Between Congress and the Federal Judiciary | url=https://books.google.com/books?id=cKloIDI8_CMC&pg=PA44 | year=2009 | location=Charlottesville | publisher=University of Virginia Press | ref=harv | isbn=9780813928104 }}
• {{cite book | first1=John E. | last1=Nowak | first2=Ronald D. | last2=Rotunda | title=Treatise on Constitutional Law: Substance and Procedure | year=2012 | location=Eagan, Minnesota | publisher=West Thomson/Reuters| edition= 5th | oclc = 798148265 | ref=harv}}
• {{cite journal | first= Michael Stokes | last= Paulsen | title = The Irrepressible Myth of Marbury | journal = Michigan Law Review | year = 2003 | volume = 101 | issue = 8 | pages = 2706–43 | ref=harv | doi=10.2307/3595393 | jstor= 3595393 }}
• {{cite book | first1 = Michael Stokes | last1 = Paulsen | first2 = Steven G. | last2 = Calabresi | first3 = Michael W. | last3 = McConnell | first4 = Samuel | last4 = Bray | title = The Constitution of the United States | series = University Casebook Series | location = St. Paul | publisher = Foundation Press | edition = 2nd | year = 2013 | ref = harv | isbn = 978-1-60930-271-9 }}
• {{cite journal | first = James E. | last = Pfander | title = Marbury, Original Jurisdiction, and the Supreme Court's Supervisory Powers | journal = Columbia Law Review | year = 2001 | volume = 101 | issue = 7 | pages = 1515–1612 | ref = harv | jstor = 1123808 }}
• {{cite book |title=Constitutional Debate in Action: Governmental Powers |last=Pohlman |first=H. L. |authorlink= |year=2005 |publisher=Rowman & Littlefield |location=Lanham |isbn=978-0-7425-3593-0 | ref=harv }}
• {{cite journal | first1=Saikrishna | last1=Prakash | first2=John | last2=Yoo | authorlink2=John Yoo | title=The Origins of Judicial Review | journal=University of Chicago Law Review | year=2003 | volume=70 | number=3 | pages=887–982 | doi=10.2307/1600662 | ref=harv | jstor=1600662 }}
• {{cite book |title=Constitutional Law |last=Sullivan |first=Kathleen M. |authorlink= |author2=Gunther, Gerald |year=2007 |publisher=Foundation Press |location=New York |isbn=978-1-59941-246-7 }}
• {{cite journal | last=Treanor | first=William Michael | title=Judicial Review Before Marbury | journal=Stanford Law Review | volume=58 | number=2 | pages=455–562 | year=2005 | jstor=40040272 | ref=harv }}
• {{cite book | last = Tribe | first = Laurence H. | authorlink=Laurence Tribe | title = American Constitutional Law | location = New York | publisher = Foundation Press | year = 2000 | edition = 3rd | isbn = 978-1-56662-714-6 | ref=harv }}
• {{cite journal | last=Van Alstyne | first=William | title=A Critical Guide to Marbury v. Madison | journal=Duke Law Journal | volume=18 | issue=1 | pages=1–49 | year=1969 | ref=harv | url=https://scholarship.law.duke.edu/faculty_scholarship/544/ }}

Further reading

• {{cite book | first = Jean Edward | last = Smith | authorlink = Jean Edward Smith | year = 1989 | title = The Constitution And American Foreign Policy | publisher = West Publishing Company | location = St. Paul, MN | isbn = 978-0-314-42317-7 }}
• {{cite book | first = William E. | last = Nelson | year = 2000 | title = Marbury v. Madison: The Origins and Legacy of Judicial Review | publisher = University Press of Kansas | isbn = 978-0-7006-1062-4 }} (One introduction to the case)
• {{cite book | first = Robert Lowry | last = Clinton | year = 1991 | title = Marbury v. Madison and Judicial Review | publisher = University Press of Kansas | isbn = 978-0-7006-0517-0 }} (Claims that it is a mistake to read the case as claiming a judicial power to tell the President or Congress what they can or cannot do under the Constitution.)
• {{cite book | first = Peter H. | last = Irons | authorlink = Peter H. Irons |year = 1999 | title = A People's History of the Supreme Court | pages = 104–107 | publisher = Penguin Books | isbn = 978-0-14-029201-5 }}
• {{cite book | first = R. Kent | last = Newmyer | year = 2001 | title = John Marshall and the Heroic Age of the Supreme Court | publisher = Louisiana State University Press | isbn = 978-0-8071-3249-4 }}
• James M. O'Fallon, The Case of Benjamin More: A Lost Episode in the Struggle over Repeal of the 1801 Judiciary Act, 11 {{smallcaps|Law & Hist. Rev.}} 43 (1993).
• {{cite book | title = I dissent: Great Opposing Opinions in Landmark Supreme Court Cases | last = Tushnet | first = Mark |authorlink = Mark Tushnet | year = 2008 | publisher = Beacon Press | location = Boston | isbn = 978-0-8070-0036-6 | pages = 1–16 }}
• {{cite book | last1 = Sloan | first1 = Cliff | authorlink1 = Cliff Sloan | last2 = McKean | first2 = David | year = 2009 | title = The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court | publisher = PublicAffairs | location = New York, NY | isbn = 978-1-58648-426-2 }}
• {{Cite book | last=Trachtman |first=Michael G. |title=The Supremes' Greatest Hits, 2nd Revised & Updated Edition: The 44 Supreme Court Cases That Most Directly Affect Your Life|date=2016-09-06|publisher=Sterling|isbn=9781454920779|edition= Third, Revised|language=English}}

External links

• {{caselaw source

• [https://www.loc.gov/rr/program/bib/ourdocs/marbury.html Primary Documents in American History: Marbury v. Madison] from the Library of Congress
• "John Marshall, Marbury v. Madison, and Judicial Review—How the Court Became Supreme" Lesson plan for grades 9–12 from National Endowment for the Humanities
• The 200th Anniversary of Marbury v. Madison: The Reasons We Should Still Care About the Decision, and The Lingering Questions It Left Behind
• The Establishment of Judicial Review
• The 200th Anniversary of Marbury v. Madison: The Supreme Court's First Great Case
• [https://web.archive.org/web/20090125024217/http://www.lawnix.com/cases/marbury-madison.html Case Brief for Marbury v. Madison at Lawnix.com]
• {{Internet Archive short film|id=gov.ntis.AVA02153VNB1|name=Marbury v. Madison (1977)}}
• "Supreme Court Landmark Case Marbury v. Madison" from C-SPAN's Historic Supreme Court Decisions

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