Marbury v. Madison (1803)


Marbury v. Madison, 5 U.S. 137, was a U.S. Supreme Court case that established the precedent of judicial review. This judicial review power allows the Supreme Court to invalidate or declare unconstitutional actions or laws created by levels of government. The case surrounds the question of whether or not William Marbury’s right to a commission is valid and if he is due a mandamus from the court. The decision of the court also called into question the Judiciary Act of 1789 and if the constitution was superior or not. Given the supremacy clause, the constitution was deemed the supreme law and Marbury’s commission was denied and the case was discharged.

First Timeline:


From its earliest days American jurisprudence has relied, if even unwritten, on the idea of judicial review. (In 1780, Holmes v. Walton in which a six-man jury was deemed unconstitutional in certain capital cases by the New Jersey Supreme Court was the first instance of this reliance.) (Harbison 1991). And in the intervening years between 1780 and 1803 the Supreme Court indeed echoed the finding of New Jersey’s highest court: finding a “carriage tax” constitutional on non-direct taxation grounds in Hylton v. U.S. in 1796; a Virginia state statute relating to Revolutionary War debts as void in Ware v. Hylton the same year; and in 1800, in Cooper v. Telfair Justice Chase even remarked with nuance that perhaps the court could find unconstitutional acts of Congress (Wikipedia 2016). But regardless of their exercise of it, the Supreme Court had never yet explicitly stated their authority to do so until 1803 because, in part, the very document which created the Judiciary in the first place was rather scant as to its powers, and jurisdiction.

During the writing of the Constitution, the Judiciary— particularly the Supreme Court and its jurisdiction–, third amongst the branches to be listed was but mentioned briefly. As Article III, Section II, Clause II notes in part, “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…” (Institute n.d.). Whereas Congress’ enumerated powers clearly give it the authority to, say, “constitute tribunals inferior to the Supreme Court, in Article I, Section 8 (Constitution Center, n.d.) the Judiciary’s duties were yet clear.  That changed In 1789, however, when The Judiciary Act was passed. Now, the Judiciary would have district courts comprised of one judge and one court over which to adjudicate; there would be circuit courts, primarily trial courts by nature and which would wield appellate jurisdiction over cases; and there would be established a Supreme Court comprised of one Chief Justice (Britanica 2009). Among the many powers delegated to the court within the Judiciary Act of 1789 is the ability to issue a writ of mandamus, “a court order to a government agency or another court to correct its previous illegal behavior in order to comply with the law” (The Law Dictionary, n.d.).

The question as to if it is acceptable to issue such a writ, and whether Congress is able to give the Supreme Court such writ-issuing authority in the first place, comes during Thomas Jefferson’s first term in office, a term rife with political upheaval.Three years prior to the court decision in Marbury v. Madison, in 1800, then-Republican Thomas Jefferson defeated incumbent president Adams, a Federalist. Before leaving office Adams appointed many persons to be Justices of the Peace for which they were required commissions—confirmed by the Senate, signed by the President and sealed by the Secretary of State. Upon entering office, however, Jefferson tells his Secretary of State, James Madison, to not deliver the commissions required. Marbury, a would-be recipient of a commission petitions the Supreme Court to issue a writ of mandamus (Mcbride 2006). With the ability to potentially issue a writ of mandamus now in place, Marbury argued that in not allowing the commissions to be delivered that Secretary of State Madison is not following his constitutional duties and thus should be compelled to deliver on his obligation. (law n.d.).

Analyzing the Judicial Act of 1789, the United States Constitution and the power which the Court itself had, the Justices would have to determine whether they could indeed compel a government official to take action and in doing so would determine what actions they themselves would be able to take and would, for the first time in U.S. history, declare explicitly after years of judicial implication, that they the Supreme Court, would have authority to review acts of Congress and statutes regarding their constitutionality.

Procedural History:

December 21, 1801: Marbury files suit in the Supreme Court in seek for a writ of mandamus in order to demand his commission to be delivered after President Jefferson instructed Madison to withhold the commission’s. 

The Court then discussed whether Marbury had a right to the commission he demands and whether the court itself had any authority to decide the issues pertaining to the case.

February 24, 1803: Chief John Marshall announced the decision to the Court.

As a result, the application for the writ was denied, leaving Marbury without his commission.


1.  Has the applicant a right to the commission he demands?

2.  If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3.   If they do afford him a remedy, is it a mandamus issuing from this court?


Chief Justice John Marshall who authored the majority opinion was joined by Associate Justices Chase, Patterson and Washington in the court’s decision to discharge the case, it’s disposition, in which no punishment was given to the defendant, Madison.. Justices Cushing and Moore did not take part in the decision. No justice concurred or dissented in the unanimous four-to-zero (4-0) decision:

First, William Marbury had a given right to the commission since the grant of the commission became effective when signed by President Adams. And to withhold Marbury’s commission was a violation of a vested legal right.

Second, since Marbury’s appointment was completed by President Adams, this gave him a legal right to office but to refuse to deliver the commission is a violation of that right. Therefore, the court proclaimed that the writ of mandamus in which Marbury filed for was a proper remedy for the withholding of his commission.

Third, the court could not grant the writ in which Marbury sought because the issue extended to cases of original jurisdiction within the Judiciary Act of 1789. Moreover, the writ of mandamus had not shown to be an exercise of appellate jurisdiction. If Congress had progressed with Marbury’s writ, Congress would have exceeded its authority.

Majority Opinion:

Chief Justice John Marshall wrote the majority opinion, which was joined by Justices Chase, Patterson and Washington.

As to Marbury’s right to a commission Marshall firstly asked whether Marbury had been appointed, thus establishing his right to a commission atoll. Marshall deemed that Marbury had indeed been appointed: being appointed by the President, confirmed by the Senate and position affirmed by the Secretary of State Marbury was appointed. Marshall elaborates that had the commission been but a part of the position then Marbury would have no standing for suit; but, Marshall notes, the commission itself creates the position, is therefore essential, and thus Marbury has a legal right to it. (“To withhold the commission, therefore, is an act deemed by the court not warranted by law but violative of a vested legal right”)

Given Marbury was appointed and has a legal right given his position, Marshall remarks that the laws do indeed offer a remedy, as the United States is a “government of laws, not of men”. That is, should we as a nation uphold the Constitution and abide by it, then we must resort to resolution by Law. As Marshall notes,  when a duty is assigned by law and rights depend on performance of those duties, then the individual has a right to use laws to remedy the injury.

As to whether a Writ of Mandamus is the proper remedy, Marshall notes that this depends on two criteria: the writ applied for and the power of the court. Marshall notes that the Writ of Mandamus is the proper writ to be applied for as it is this writ which would order an official of the United States (the Secretary of State) to do something (ie. deliver the commission). However, Marshall noted that the law which mandated that the court issue a writ in the first place, The Judiciary Act of 1789, and the Constitution conflict and thus the court must decide which is superior; he determined that the Constitution given the Supremacy Clause, was supreme. Given the invalidity of the Judiciary Act which would have conferred on the court the proper jurisdiction to issue the writ for Marbury was unconstitutional, Marshall notes that the court has no jurisdiction. And according to Marshall, “it is emphatically the duty of the Judicial Department to say what the law is” and thus the court has the final say with regards to whether the above law and the Constitution are at odds. Thusly, as the law which gave the court jurisdiction to issue a writ was void per the court Marbury was denied his commission and the case discharged, as Marshall concludes.

Full Text of Opinions:

Decision Analysis:

Since 1803 and Chief Justice Marshall’s momentous opinion the decision in Marbury v. Madison (1803) has been scrutinized by scholars in an effort to decipher the court’s intent. Some if not many argue for a political motivation behind the writing. As Professor Akhil Reed Amar (Graber, 2003) remarks, “John Marshall managed to empower his branch even as he backed away from a fight with a new and popular President.” The decision to many is about the relationship between president and court and the maintenance of the then-courts nascent, waning power. As Mark Graber (2003) notes, “Had the Justices ordered the Jefferson administration to deliver a judicial commission to William Marbury, the writ of mandamus would have been ignored. Had the Justices declared that Congress could not repeal the Judiciary Act of 1801, the Chief Justice and his brethren probably would have been impeached.” (Graber, 2003). Many scholars agree that Marshall’s decision is but a kowtowing to presidential authority during a time when the court’s authority is weakened. The justices declaring Section 13 of the Judiciary Act unconstitutional, for example, was but necessary because the judges realized that they could not force then-president Jefferson to give the commission to Marbury (Graber, 2003). Politically-motivated as it may have been, Marshall’s decision is a cornerstone of modern day jurisprudence. As Professor Robert McClosky of Harvard University sums up, “[Marshall’s opinion is] a masterwork of indirection, a brilliant example of Marshall’s capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking in another… . The touch of genius is evident when Marshall … seizes the occasion to set forth the doctrine of judicial review” (Graber, 2003).


The Marbury v. Madison decision was decided on February 24, 1803, ignited by William Marbury’s petition to the Supreme Court for his earned appointment. This decision served as one of the many landmark cases in the United States and most importantly, Marbury v. Madison was the first instance where the Supreme Court ruled that a federal law was unconstitutional.  In other words, this was the first time that the Supreme Court exercised the practice of “judicial review”. Marbury v. Madison was almost completely irrelevant for most of the 19th century. Nevertheless, many aspects of the decision have been used in subsequent court cases to determine if government actions are in conflict with the Constitution of the United States. Following the Marbury decision, John Marshall’s remaining tenure as chief justice presented several separate opinions in subsequent court cases containing references to the Marbury case. But It wasn’t until 1857 that the Court declared another act of congress unconstitutional in the landmark case Dred Scott v. Sanford– which was supported by the Marbury decision. Other court cases have shown references to the Marbury decision such as in Mugler v. Kansas (1887) which first cited Marbury v. Madison as precedent for the idea that courts may enforce constitutional limitations on legislative bodies.

During the 20th century, the expanding power of judicial review had become an important aspect so much that through the practice of judicial review, the judiciary had become the guardian of the terms of the Constitution. As time went on throughout the 20th century, the supreme court regularly emphasized the importance of the Marbury decision for judicial power and its centrality to American constitutionalism. The expansion of the term “judicial review” is shown in Cooper v. Aaron (1958) which offered a clear exposition of Marshall’s sentence in his opinion that stated “it is the judicial duty to say what the law is… this decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution”. Following Cooper v. Aaron, the increase in power of the “judicial supremacy” is evident throughout the court systems.

Indeed, the expansion of judicial review has even reached over to other nations worldwide. Touching base in primarily democratic polities, judiciaries and supreme courts have armed themselves with judicial review practices. Even to this day, the court relies on Marbury v. Madison as an import and unforgettable precedent as it displays the need for the court to determine whether a constitutional right has been violated.


Second Timeline:

Scholarly Commentary and Debate:

Since the decision in Marbury v. Madison (1803) scholars, contemporary and otherwise, have debated its significance. Notably, scholars debate the idea that judicial review is created independent of any outside influence. As one Professor Sanford Levinson notes: “[Marbury v. Madison] is “intellectually dishonest,” requires more history than law students are likely to know, proffers an unoriginal defense of judicial review, and promotes the pernicious impression that the federal judiciary has a monopoly on constitutional decision making (Graber, 2003). Such a view is furthered by other constitutional law academics, too. Howard Gillman notes in publications how during the Civil War, the Legislature, trying to create a stronger judicial role, tries to increase the Supreme Court’s jurisdiction;Whittington argues that judicial supremacy is at times supported by presidents in order to maintain or strengthen their political coalitions; Professor Levinson and colleague Professor Balkin have described this phenomena as “partisan entrenchment,” the effort “of parties who control the presidency [to] install jurists of their liking” (Graber, 2003). Judges and their decisions often reverberate far beyond the potential eight years a president may sit in office. Thus, as such, and as scholars continually debate, the political clout which other branches yield will continue to influence the court.

Constitutional Provisions:

Source: ,  

The constitutional provisions are based in Article III SECTION 2. Clause 1.

“ 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;”
Under the Judiciary Act of 1789 authorized the circuit courts to issue writs of prohibition to the district courts and the Supreme Court to issue such writs to the circuit courts. The Supreme Court was also empowered 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.”

Government Law or Action Under Review:

  1. The Judiciary Act of 1803;
  2. The legality of non-deliverance of a commission by a constitutionally-obligated government official.

Important Precedent Cases:

  • 1780: Holmes v. Walton: The Supreme Court of New Jersey found a statute which allowed a six-man jury in certain cases to be unconstitutional; perhaps the first time judicial review was used.
  • 1786: Trevett v. Weeden: Rhode Island’s depreciated value was at issue; those refusing to accept the currency at face value were issued heavy fines, but this act was void unconstitutional.
  • 1787: Bayard v. Singleton:  The North Carolina Superior Court held an act constitutional against the defendant’s assertion that a legislative act which made suits by affidavit for those holding enemy estates void
  • 1792: Hayburn’s Case, 2 U.S.: federal courts held an act unconstitutional.
  • 1794: United States v. Yale Todd: The Supreme Court reversed a pension awarded under the pension act under review in “Hayburn’s”. Notably, this case was never used as a precedent.
  • 1796: Hylton v. U.S.: Supreme Court struck down a federal “Carriage Tax” which violated the Constitutional provision against “Direct taxes”.
  • 1796: Ware v. Hylton: The supreme Court struck down a state statute- a VA statute which related to Revolutionary War debts and which due to the Supremacy Clause, was considered inconsistent with a peace treaty between the U.S. and Great Britain.
  • 1800: Cooper v. Telfair: Notable for a statement by Justice Chase noting “ It is indeed a general problem- it is extremely admitted by all this bar and some of the judges have individually in the circuits decided that the Supreme Court can declare an act of Congress to be unconstitutional”.

Important Subsequent Cases:

  • 1803: Stuart v. Laird:  A case in which “circuit riding” was formerly done away with by the Judiciary Act of 1801. When the Judiciary Act was repealed by the Repeal Act of 1802, and “circuit riding” re-instituted, a case was brought arguing about the unconstitutionality of the Judiciary Act of 1802 which re-instated it. The “Act” of 1802 was later upheld even as “circuit riding” became less entrenched within the judiciary.
  • 1857: Dred Scott v. Sanford: Dred Scott v. Sanford was one of the many landmark cases in which the application of judicial review was first administered following the Marbury v. Madison decision. In this case, Congress argued that Dred Scott was not classified as a free person under the Missouri Compromise.The Court further declared that under the fifth amendment, Congress does not have the right to deprive persons of their property without Due Process of Law and cannot enact a law regarding the enslaved territories of states.
  • 1958: Cooper v. Aaron: Cooper v. Aaron was a landmark case in which the Supreme Court ruled that state government officials are bound to Supreme Court rulings which have been based upon the Supreme Court’s interpretation of the constitution. Marbury v. Madison established the federal judiciary as the supreme authority for interpreting the constitution. Therefore, states cannot oppose the desegregation program that the court ordered because otherwise it would be a violation of the oath taken by state government officials to support the constitution.

Web Resources:


Academic Books, Articles, and Law Reviews:

Web, Book, and Journal resources and reviews


  • Graber, Mark A., and Michael Perhac. Marbury versus Madison: Documents and Commentary. Washington, D.C.: CQ, 2002. Print.

This book by Graber and Perhac shared much of the information of many of the other sources, however this book followed the case of Marbury v. Madison from its political origins to the present. It provides a pretty detailed analysis of the actual impact of the case, which for some reason seems to be rather lacking in some of the other sources. Realistically this book was great for the analysis of the case and gives a relatively extensive look at political and social background to the case.

  • Kelly, Alfred H., Winfred A. Harbison, and Herman Belz. The American Constitution: Its Origins and Development. 7th ed. Vol. 2. New York: Norton, 1983. Print.

        The American Constitution: Its Origins and Development provided one of the most comprehensive looks at the case of Marbury v. Madison, doing so through the clear highlighting of various important factors. The authors of this book clearly state the questions being brought up by the case, the ruling (in a simple yes or no), and a very thorough reason for the decision. This source also provides necessary background information through the statement of fact as well as a relatively in-depth look at the various circumstances surrounding the cases.

  •  Nelson, William E. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence: University of Kansas, 2000. Print.

        William Nelson’s book on Marbury v. Madison is expansive to say the least, with the first few chapters being solely dedicated to establishing that there was a concept of judicial review before Marbury v. Madison (judicial review was not new). In these early chapters Nelson also describes the complex political climate of the time and the dilemma faced by Marshall at the time. Finally he goes on to describe how judicial review has evolved into its most current form, and goes on to describe the various processes and factors that led to this evolution over time.



Summer 2016: Alexander S. Cook, Michelle C. Kennedy, Robert Spangler, Morgan Wilt

Tasks for Future Contributors:

  1. Discuss and elaborate upon the contemporary debate regarding Marbury v. Madison (1803). Specifically, do any contemporary scholars believe Marshall’s reasoning to be legally sound and not  politically-motivated?
  2. Regarding the commission specifically, determine the whereabouts of it–forgotten, misplaced, or a different fate entirely?
  3. Discuss the relationships between the Supreme Court, legislative and executive branches since the decision in Marbury v. Madison: currently, how does the court interact with the president and the Legislature? How does the court balance its authority with the wants-and-needs of the other branches of government? Give examples.