Notes on “Marbury v.s Madison”

This short essays deals with the famous Supreme court Cases “Marbury v.s Madison”, decided in 1803. The full opinion can be found here:

There are two spheres in which this opinion operates: the undelivered commission to William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper on one side, and the general debate about judicial review and the political fight between federalists and democratic-republicans on the other. Three quarter of the opinion is given to the matter at hand, followed by a sudden shift to address the general debate and establish the judicial supremacy of the court. At the juncture, the opinion invalidates a federal statute in the Judicial Act of 1789, asserting that the ability given to the Supreme Court to issue a writ of mandamus in this kind of case to be unconstitutional. Afterward, the opinion swiftly shifts gears and argues that acts repugnant to the constitution should be void and makes the argument that judicial review means that supreme court is the court of last resort in charge of saying what the law is.

Marshall argues extremely well the matter of establishing that a wrong has been committed and what the right remedy should be. One of the main contention made against the commission by the Jeffersonian camp was that a commission not delivered is made void. This seems to be the reason why Marshall send much time developing the argument against this position, using long standing historical interpretations of common Law, particularly taking inspiration of William Blackstone’s teaching in “Commentaries on Law of England” and what the courts of England did in similar cases regarding remedies to injuries. He forcefully makes the point that these commissions are not political rights that falls under the discretion of the executive, but are clearly established by law statutes and offer a right to their holder that can be remedied if violated. He delves deep into the distinction between nomination, appointment, and commission and establish the point at which a commission is final. When the president’s signature is stamped with the seal of the United States, a right has been given to the appointed individual: “He has been appointed to an office from which he is not removable at the will of the Executive, and, being so appointed, he has a right to the commission which the Secretary has received from the President for his use”.  Transferring this right is only an administrative task, which the candidate may even avoid by personally obtaining it from the secretary of state. Furthermore, Marshall looks at whether other methods would have been more proper such as an action of detinue. However, this particular action is to return a property to someone who has been denied it, while in this case, it is not the paper itself but the position that one is seeking and thus the writ of mandamus is the proper remedy. Marshall again refers to historical use from english law: “a command issuing in the King’s name from the Court of King’s Bench, and directed to any person, corporation, or inferior court of judicature within the King’s dominions requiring them to do some particular thing therein specified which appertains to their office and duty, and which the Court of King’s Bench has previously determined, or at least supposes, to be consonant to right and justice.

Thus I argue, the argument of establishing that a wrong was committed and what the right remedy is, was very well carried. The weakest aspect of the opinion i found to be the next section, whether the Supreme court can deliver the writ. Digging deeper in this section, we find that the main reason the supreme court cannot apply section 13 of the judiciary act of 1789 and issue the writ of mandamus is because it is unconstitutional. Article III, section 2 of the constitution is the focus: “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”. The problem is about jurisdiction:

  1. Marshall argues that the constitution provides the full list of cases where the court has original jurisdiction.
  2. He further argues that providing a writ of mandamus is not one of those cases.
  3. and finally, that the court only has appellate jurisdiction in this case and cannot help Mr Marbury.

Through this argument, Marshall is taking a stand against what the community of lawyers and judges (the bar) had previously supposed. He is arguing for a new interpretation of the constitution which he knows must convince lawyers and judges for the argument to get bearing and be accepted and applied. Here are the 2 statements aimed at the bar:

  1. it has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.
  2. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original.

Marshall argues against a seemingly established idea regarding Art III, section 2 of the constitution, that the lack of restrictive or negative words regarding assignment of original jurisdiction means that the power to extend that jurisdiction is at the discretion of the legislative branch. He is adamant that there would have been no need for this section if this was the true intention of the framers, and that it would have been enough to vest judicial review in the court, if the point was for legislation to take over the jurisdiction task. The framers must have meant for original jurisdiction to be applicable for only those cases listed. Allowing congress to change jurisdiction at will makes this section “form without substance”. Marshall concludes that what is intended by an affirmative is to deny all the negatives. An exclusive sense must be assigned to those words. Thus Positive meaning is exclusive of all other case: “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”.

So far all looks good. However, In the second part of the argument, Marshall finds that providing a writ of mandamus is a function under original jurisdiction, rather than appellate. Contrary to what is held in the law community, he says it is stated by the bar that the appellate jurisdiction may be exercised in a variety of form, and that the legislative can decide that a writ may be used for the purpose of the function of appellate jurisdiction. Is this so in this case? and what is the criterion for exercising such jurisdiction? Appellate jurisdiction is for “correcting the proceeding in a cause already established and does not create the cause”. In this case the issue is that Marbury did not get the commission, and the remedy is the order for delivery of the commission, done through the writ of mandamus. This next part is very carefully construed, and in my opinion the weakest part of it all, as the wording is not final and doesn’t not come with the force of deductive logic. Marshall says tentatively that “to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction“. Is it acceptable then, that issuing writs of mandamus is an original jurisdiction? The opinion does not rule unequivocally on this designation but tentatively. The final holding also uses weak wording: “to issue writs of mandamus to public officers, appears not to be warranted by the constitution“. Likely because of his weak confidence regarding jurisdiction, Marshall feels that the court ought to balance what the constitution says with what the laws says. However, as soon as he start this argument, he switches to a language that is much more assertive with regards to the quality of acts the constitutions upholds. At that point, we are talking about acts that are “repugnant to the constitution”, which is meant acts that are clearly opposed to it. But since the case at hand was not self-evident, this whole section is moot and doesn’t apply to the case.

Marshall should have made the case for ambiguous acts but rather veers off topic. In cases where the constitution is clear, there is no problem. In case where it is not so clear, the power of judicial review becomes problematic and political. The power of shaping policy arises in those cases and it is not clear that it shouldn’t really be in the hand of the legislative to have the final say. The constitution does limit the power of the legislative in explicit cases, but is this one of those? The opinion rather seems to modify the meaning of the constitution in order to reach the conclusion it wishes to uphold. “It is emphatically the province and duty of the judicial department to say what the law is. “ and yet in this case, it wasn’t really clear what that law was. It decided the act on no solid ground. Should we trust and accept this decision? and if we cannot trust it, or appeal against it, doesn’t that give the judiciary despotic power? This is I think the essence of the argument made by the Jeffersonian camp opposed to such power. Jefferson comments in a letter to Abigail Adams in 1804 about a case where the judges may have ruled unconstitutionally to which the president should have a right to remit. In this he gives his opinion on how checks and balances should work. He says “You seem to think it devolved on the judges to decide on the validity of the sedition law. but nothing in the constitution has given them a right to decide for the executive, more than to the Executive to decide for them. both magistracies are equally independent in the sphere of action assigned to them. the judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the constitution. but the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. that instrument meant that it’s co-ordinate branches should be checks on each other. but the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature & executive also in their spheres, would make the judiciary a despotic branch“ ( Further he says in 1815: “The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches” (

Marshall opposes this line of argument saying that the legislative, if not checked by the judiciary, would itself be despotic. He follows the lines of Federalist paper 78 written by Hamilton. That the constitution is meant as a permanent document not to be changed lightly, whose articles are higher than statute passed by the legislative. In those cases where the law and the constitution are in opposition, Marshall says that to disregard the latter and uphold the former is to be “giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits “. Thus it would be trivial to attempt to limit the powers of the legislative though a written constitution. Marshall concludes: “If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply”. Again, I believe this part of the opinion to be off-topic regarding the case, and should have been about ambiguous acts. It is however not unexpected given the political revolution and the transfer of powers that happened in 1801, to find this case highjacked for political reasons. For a decade the federalist in power tried to mute the republicans, passing the various laws under the sedition Act, upheld by federalist judges and thought by republicans to violate their own freedom of speech of defending the states against government. The judicial act of 1801 was the last attempt by the Federalist to keep control of one branch of government when they had lost the other two. Congressional debates of the judiciary were raging in congress in 1802 (some account here It is therefore not surprising that the whole case was in its consequence a political gamble by Justice Marshall, to heighten the power of the one branch his own camp remained in charge of, with the intention of fighting for government power against state power, as we would see in future court cases such as Martin vs Hunter’s Lessee.


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