How did the US Supreme Court determine that the Constitution allowed judicial review in the case Marbury v Madison?

Answer 1

In his opinion for Marbury v. Madison, 5 US 137 (1803), Chief Justice Marshall asserted judicial review was an appropriate function of the Judicial Branch of government using a combination of historical precedents and constitutional citations to support his reasoning. The specific parts of the Constitution referenced were in Article III, all Sections; Article VI, Section 2; and Article I, Section 9.

Explanation

The opinion of the Court addressed three legal questions:

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?

It's difficult to disentangle the issue of judicial review from the opinion as a whole, because the answers to the various questions supported each other. The section related specifically to judicial review and the role of the Judicial Branch of government were written in response to the third legal question: "If [the courts] do afford [Marbury et al.] a remedy, is it a mandamus issuing from this court?" A writ of mandamus is a court order compelling an official to take an action.

The Court answered "Yes" to the first two question. Marshall stated Adams had taken the proper steps to secure Marbury's commission, and that the federal courts could address Marbury's grievance with a writ of mandamus to Secretary of State James Madison. Marshall then turned to the question of whether the Supreme Court had jurisdiction to issue the writ.

Marshall first compared Section 13 of the Judiciary Act of 1789 to a portion of Article III, Section 2, which explicitly detailed the original (trial) jurisdiction of the Supreme Court.

Judiciary Act of 1789

". . . 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."

Article III, Section 2 (excerpt)

"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."

Marshall noted that if the Court was not constitutionally authorized to issue a writ of mandamus as required by Congress, the law must be unconstitutional. Marshall then discussed the general authority assigned to the federal courts and Supreme Court in Article III, Section 1.

"The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case, because the right claimed is given by a law of the United States."

Article III, Section 1 (excerpt)

"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;"

Marshall reasoned the Framers would not have listed specific types of cases over which the Supreme Court could act as a trial court if they had intended Congress to assign the Supreme Court additional authority under original jurisdiction. Furthermore, Marshall reasoned, this could be contrasted with another portion of Article III, Section 2, which explicitly grants Congress the right to change the Court's appellate jurisdiction.

Article III, Section 2 (excerpt)

"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."

The Chief Justice concluded from the text in Article IIIthat the Supreme Court could only properly issue a writ of mandamus under appellate jurisdiction.

Marshall next addressed whether an Act of Congress could be considered unconstitutional. In answer, he cited the Article VI, Section 2, Supremacy Clause that elevated the Constitution over ordinary legislation.

Article VI, Section 2

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Marshall later referred to the second part of Section 2that called upon the judiciary to uphold the Constitution, and reminded Congress it had also written an oath the justices were to recite before attaining office in which they pledged to uphold the Constitution.

Marshall referred to the discrepancies between Section 13 of the Judiciary Act and Article III of the Constitution, and posed several rhetorical questions as to whether a law that was "repugnant to" the Constitution was void, or whether it should be acted upon despite being contrary to the Constitution. Marshall then stated the proper role of the Judicial Branch in determining how contradictory laws were to be applied:

"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."

Marshall asserted that the Constitution, as the Supreme Law of the Land, took priority over Acts of Congress.

Marshall then directly addressed the Framers' intent with regard to judicial review.

"Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

"In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

"There are many other parts of the Constitution which serve to illustrate this subject."

Marshall posed another set of rhetorical questions, citing various parts of the Constitution, including Article I, which addresses the powers and limitations of the Legislative Branch.

"It is declared that "no tax or duty shall be laid on articles exported from any State." [Article I, Section 9, Clause 5] 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." [Article I, Section 9, Clause 3]

"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." [Article III, Section 3]

"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?"

Marshall then non-specifically stated many other clauses in the Constitution could be scrutinized in a similar manner.

Finally, Marshall returned his attention to Article VI, and concluded:

"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.

"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 rule must be discharged."