Topic: Marbury v. Madison and the Development of Federal Judicial Supremacy


Marbury v. Madison is John Marshall’s most famous opinion and probably one of the most famous opinions in Supreme Court history. It is often said to have created the power of “judicial review”—the power of courts to declare laws and acts of governments unconstitutional and void. Note that the power of judicial review is the power of American courts generally, not only the power of the Supreme Court or of federal courts. The power is possessed by state courts as well, and not just by state courts of last resort, but by county and city courts. The reason for this broad power is found in Marshall’s opinion in the Marbury case. It is unquestionably an important case.


But, as Robert Clinton argues in his article “The Supreme Court before John Marshall,” it was not unprecedented. The Supreme Court and federal courts in the 1790s had already assumed their authority to consider the constitutionality of state and federal statutes. The Court, however, had never adopted a clear doctrine or rationale for judicial review in these early cases. To be sure, Justice Paterson’s charge to the Circuit Court jury in the case of Van Horne’s Lessee v. Dorrance outlined much of the argument that Marshall was to make in Marbury, but in other cases the rationale for considering constitutionality was not so clear.


It is sometimes argued that judicial review was a usurpation of power: that the power of courts to consider and, if necessary, to void acts of the legislature or executive is nowhere mentioned in the Constitution. In reply, one might mention that several of the delegates to the Philadelphia Convention in 1787 indicated that they assumed that courts have such power. A couple of delegates spoke against the power, but it is clear that the power of judicial review was not unknown before the ratification of the constitution and seemed to be generally recognized at the Philadelphia convention. Alexander Hamilton’s Federalist #78, written in 1788 to support the ratification of the new constitution, provides a thoroughgoing rationale for the assumed power of judicial review. It is true that the power of judicial review was not universally accepted even after the decision in Marbury v. Madison. Perhaps the most famous critique was that of Justice Gibson, dissenting in the Pennsylvania state case of Eakin v. Raub, although Gibson later came to accept the legitimacy of judicial review.


First Assignment


To turn then to Marbury: more than enough has been written over the years about the opinion. I have selected the readings from McLaughlin’s text on constitutional history and Garraty’s book of stories about famous constitutional law cases. Please read chapter one of Garraty’s book before you turn to Marshall’s opinion. It will give you all of the historical background of the case.


When you read the opinion itself, you will notice that Marshall organizes it into three parts, each one addressing one of the three questions that Marshall says are necessary to decide the case. Marshall often uses this device of organizing opinions on the basis of questions and sub-questions that logically lead to the Court’s ultimate holding. In Marbury, quickly review or skim the first two questions that Marshall poses and the answers that he provides. Then, focus on the third question (beginning at the end of page 167 of the opinion and continuing to the end of the opinion). Here is where he discusses judicial review and provides the rationale that has served as precedent for its use up to the present day.


As you read the third part of Marshall’s opinion, try to determine what his precise rationale for judicial review is. What specific law or section of law is being subjected to judicial review? What is the Court’s holding on that law? What assumptions or premises does judicial review rest on? And finally, who won the case? 

©William S Miller