The following is taken from “What Every American Should Know About American History” by Alan Axelrod:
My question is this: What was unconstitutional about allowing writs of mandamus to be requested of the Supreme Court?
Also, I don’t see how this created the judicial review. If the principal of judicial review did not exist before this, what gave Marshall the right to declare the law invalid? I think I have a hard time getting my mind around this whole case.
Oh my, Con Law !.
I know others more eloquent than I will be in here soon (or right before I post) so I’ll give you a brief answer.
There is nothing in the Constitution that gives the Supreme Court the authority to hear and act on the case. Lower courts, yes (there is some speculation that M v.M was a setup – one of my professors is writing an article on that) but not the Supreme Court. Basically, the opinion takes the time to say that Marbury had a right to the commission, but that the remedy was invalid.
Who has the authority to decide whether or not a law is in accord with the Constitution? Does a law necessarily need to conform to the constitution? Big questions in the early days. The court basically said yes, a statute must conform to the dictates of the Constitution – that as a nation the Constitution is the supreme law of the land, and subordinate statutes must give way. Furthermore, congress is not the proper body to pass judgment on constitutionality. Courts, because of their particular role of interpretation, their distance from political pressures, and a few other reasons (remember, this post is filler 'till a better scholar gets here. Or go read the opinion) are in the best position to determine if a law conforms to the constitution. Judicial Review is born.
The Court examined the law, determined that congress was giving the Supreme Court powers that were not annunciated in the Constitution, and declared the law invalid.
I hope that helps for starters.
I should have added one bit – possibly another stroke of genius buried in the opinion. Notice that the court is refusing to act. Had Marshal addressed the concept of Judicial Review within the scope of a case in which the court would need to prevent or require an action, there would have been an early constitutional crisis. What if the executive branch refused to take action believing itself to be the arbiter of constitutionality? You can see what kind of chaos could have been created. In this case, however, what could the congress do? The Court was saying, ‘hey, we don’t have the constitutional authority to act, which means whatever law you pass is a nullity. You can’t make us do anything that is not in there. Mleah!’ Congress was powerless to take Judicial Review back from the court. They couldn’t do anything about the situation despite the court. They tried giving the court one extra-constitutional power, yet the court ended up with a much more powerful role. Brilliant.
an excellent explanation by Rythmdvl. not only did his response post before mine, it was much more clear. i would only add the following:
the reason the Judiciary Act of 1789 was unconstitutional is that expanded the Supreme Court’s original jurisdiction. “Original jurisdiction” is a court’s ability to hear a case that hasn’t been appealed up through the system (essentially, the Supreme Court is like the trial court). the Judiciary Act of 1789 said that 1) you can ask the Supreme Court to issue a writ of mandamus (which, for our purposes, forces the government to do something), and 2) when you want to do that, you don’t have to start with the District Courts and then mess around for years in the appellate courts; you can just start your case in the Supreme Court.
but the Supreme Court said, “Thanks, Congress, for giving us this power, but the Constitution of the United States says we can’t have original jurisdiction over these mandamus cases.” the problem, according to the Supreme Court, was that the Supreme Court’s original jurisdiction was defined and limited by the Consitution. since the Supreme Court’s original jurisdiction had been spelled out in the the Constitution (which is the Supreme Law of the Land), then the only way to change the Court’s original jurisdiction was to amend the Constitution.
what is so striking about this decision is, as Hugh seems to have grasped, that this thing came out of (pretty much) thin air. there is nothing about “judicial review” in the Constitution, or any of our statutes or treaties. further, it doesn’t appear in american common law prior to this point (in Europe, when a legislature passed a law, it was de facto constitutional–the courts there seemed to rely on a presumption that the legislature could tell at least as well as the courts what laws conflicted with superior laws). but the decision was framed in such a way, that the Supreme Court was able to pass on ruling in a case that would have damaged the Court’s credibility/legitimacy if it had ruled, and to actually increase the Court’s power by passing. as an example of the disdain the Executive branch had for the Supreme Court and the Supreme Court’s absolute lack of power prior to this decision, the Supreme Court had ordered Madison to appear before them and explain why he hadn’t delivered the commissions, and Madison ignored the order. he didn’t even argue his case to the Supreme Court.
so when the decision came out, Congress and the President weren’t going to complain because they got what they wanted (Marbury didn’t get his commission). and with the advent of judicial review, the Court went from being the least powerful branch of government to arguably the most powerful.
it’s probably also worth noting that there wasn’t an immediate uproar because the Court didn’t strike down any more laws as unconstitutional for a long, long time after this decision. i like to think of them as sort of sitting on this power and hoping noone notices, although it was probably just judicial restraint. ho hum.
Let’s see if I can summarize this power grab more summarily:
The constitution does not specifically make the Supreme Court the arbiter of what the constitution means, Marbury v. Madison did this. How, you ask?
Marbury wanted President Jefferson to deliver his damn commission. Marbury sued the government through its representative Madison (I believe James Madison, the primary author of the constitution, and husband of cupcake queen Dolly Madison and the shortest US President (later in his career)) to require the deliver of the commission.
Jefferson had made it quite clear that he would not do so even if ordered to by the Supreme Court, because the Supreme Court had no express power over the executive branch. This would make the courts in general weak.
Marshall found a technicality to rule in favor of Jefferson. This technicality was that the Supreme Court had the inherent power to declare laws passed by Congress and signed by the President unconstitutional. The Court struck down the law sued under because it required the Court to do something it said it didn’t have to do.
The special irony is that the Court beat Jefferson to saying another branch couldn’t require it to do anything. And for special measure, Marshall wrote for the Court that the Court had the power to order the President to do things, but wouldn’t here.
It really pissed Jefferson off.
Well, that wasn’t any shorter, was it?
Nothing. Most modern scholars agree that Marshall’s reasoning on this point was specious. Marshall found the Judiciary Act of 1789, which granted the Court the power to issue writs of mandamus, to be an unconstitutional expansion of the Court’s original jurisdiction. However, granting the Court the power to issue writs of mandamus did not expand its jurisdiction; it merely gave it a tool by which to implement existing jurisdiction.
The principle of judicial review did exist before this. State Supreme Courts had already declared state laws to be in violation of state Constitutions. The federal Court had already found state laws to be in violation of the federal Constitution. The extension of judicial review to federal laws was natural and logical. Marshall made a straightforward and common-sense argument for this extension in Marbury v. Madison, which ultimately carried the day even though its applicability to the pending case was dubious in the extreme.
jklann, can you point me towards some links for that? Here in Canada the writ of mandamus is still commonly available, but almost invariably only at the trial level, not at the appellate level, whihc sounds like original jurisdiction to me.
Thank you, all of you. I’ve been trying to get my head around this issue and was failing.
Good ol’ Straight Dope (and Dopers), delivering the goods.
Northern Piper–alas, my comments are based on old fashioned book readin’, so I can’t give a web link. The best discussion of this issue that I have read was written by Leonard W. Levy. I BELIEVE that it was published as one chapter in his book “Original Intent and the Framers’ Constitution”, but I couldn’t swear to it. You can find another good exposition in the appropriate volume of the “Oliver Wendell Holmes Devise History of the Supreme Court of the U.S.”, although I’m not sure how easy that will be to find in the Great White North.