Establishing the power of judicial review

The first landmark decision rendered by the United States Supreme Court was Marbury v. Madison (1803), in which Chief Justice John Marshall first asserted the power of judicial review.

In the United States, the power of judicial review allows us to say, “The government can’t do that.” Judicial review thus empowers the courts to enforce constitutional limitations against Congress and the President, which, in theory, protects the American people from government violation of the Bill of Rights and usurpation of power.

Marbury v. Madison, the biggest case in American constitutional history, precisely because it marked the court’s first exercise of the doctrine of judicial review – a decision on the constitutionality of a law passed by Congress, came in the context of intense and confrontational partisan politics between Federalists and Jeffersonians.

During the turbulent last days of ardent Federalist John Adams’ presidency, the Federalist-dominated Congress passed the Judiciary Act of 1801. This Act created a slew of new circuit court judgeships, to which Adams nominated and the Senate approved, good loyal Federalists. These judges, appointed in the final hours of the Adams administration, were nicknamed “the midnight judges.” A second bill, passed days later, created new judgeships in the District of Columbia, to which Adams would, again, appoint powerful Federalists.

The Jeffersonian newspapers were appalled by the Federalists’ takeover, apparently an abuse of public will since American voters had in the election changed the political landscape by completely rejecting the Federalists at the polls in favor of the Jeffersonians.

Federalist intentions were clear. They aimed to fill the courts with judges who would uphold federalist legal principles.

In one of his last official acts, President Adams appointed 50 Federalists to these new judicial positions, including one William Marbury, Justice of the Peace for the District of Columbia.

Marbury and the other Federalist candidates were quickly confirmed by the Senate. Adams signed their ex officio commissions. As a statutory duty, it fell to the Secretary of State, John Marshall, who had just been appointed Chief Justice of the Supreme Court, to issue the commissions. For some reason, Marshall failed to deliver the commissions, including Marbury’s. The new president, Thomas Jefferson, furious with Adams and the Federalists for what he perceived as an act of usurpation, ordered his Secretary of State, James Madison, not to hand over the commissions. Jefferson believed that refusing the commissions would prevent Federalist judges from carrying out their duties as judges. This order laid the groundwork for Marbury’s lawsuit against Madison.

Marbury filed a lawsuit in the Supreme Court, asking the court to issue a warrant of mandamus to Secretary of State Madison, an order that orders Madison to return the commissions. Marbury brought the action under section 13 of the Judiciary Act of 1789, which gave the court original jurisdiction in mandamus cases against federal officials.

The court seemed to have two options. He could deny that he possessed authority over the executive branch, that is, the authority to order Madison, which really meant President Jefferson, to issue the commissions. This course was unattractive because it would mean the court was abdicating its judicial power.

A second option, that of ordering the president to issue the commission, seemed equally unattractive, since the court had no power to enforce its decision. While the principle of executive accountability to law has since been well established, it had yet to be argued, and Marshall might have feared a setback for the judiciary, most weak of the three branches of government, if Jefferson ignored such a decision.

In what scholars have called a masterstroke in judicial art, Chief Justice Marshall avoided both courts, finding that section 13 of the Judiciary Act was unconstitutional since the original jurisdiction conferred on the court by the Article 3 could only be exercised in cases involving ambassadors, public ministers and cases involving States. The court, he said, could issue mandamus, but only in cases involving its appellate jurisdiction. Congress does not have the power to expand the original jurisdiction of the Court, which was granted by the Constitution, just as it does not have the power to change the provisions of the Constitution, except by initiating the process of amendment.

When the Court declared Section 13 to be unconstitutional, on the grounds that it violated Section 3 of the Constitution, it exercised the power of judicial review for the first time in the history of our nation. Marshall wrote, “It is clearly the province and the duty of the judicial department to say what the law is. In a case involving a conflict of laws – in Marbury v. Madison, a statute and a constitutional provision – this is the essence of the judicial duty to “say what the law is”. Given the supremacy of the Constitution, a law that conflicts with its terms is unconstitutional.

(This column is provided by NDNA and ND Humanities.)