By Hobson, Charles F.
Humanities , Vol. 24, No. 1
February marks the bicentennial of Chief Justice John Marshall's precedent-setting decision that established the power of the Supreme Court to declare an act of Congress unconstitutional.
Marbury v. Madison enjoys the status of a landmark, perhaps the most prominent, of American constitutional law. In deciding this case, the Supreme Court for the first time declared an act of Congress void as contrary to the Constitution. Chief Justice John Marshall's decision became the leading precedent for "judicial review," the court's power to pass upon the constitutionality of legislative acts.
Marbury can scarcely be understood without anchoring it in the political context of Thomas Jefferson's first administration. Jefferson's landslide victory in 1800-his "bloodless revolution"-was the new nation's first transfer of power from a dominant regime to an opposition party. When the Federalists were ousted, neither they nor the Jeffersonian Democrats could anticipate what would occur. Party conflict had yet to be considered legitimate; during the volatile presidential campaign, the Federalist press had called Jefferson a pagan, an atheist, and a traitor to George Washington and John Adams. There was speculation about whether or not Adams would step down. It was in this uncertain climate that the judicial branch would attempt to establish its authority to judge other branches of government.
Marshall's opinion, delivered just two years into the new administration, was interpreted by contemporaries in partisan terms. Even today, critics find fault with Marshall for using the case to lecture the president, while admirers praise him for striking a blow for judicial independence in the face of an assault by the Jeffersonian political majority. Yet to read the opinion solely in the light of the raging party battles of the day, or to read it only as a landmark that established the doctrine of judicial review, is to miss its full significance.
Marshall considered this case to be among the most important decided during his tenure as chief justice. The part of his opinion that is most read and remembered today is the concluding and comparatively brief section setting forth the doctrine of judicial review, which reads, "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 & 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."
In December 1801 the court had received an application from a man named William Marbury for a writ of mandamus that would command the secretary of state to deliver Marbury's commission as justice of the peace for the District of Columbia.
Charles Lee, Marbury's attorney, moved to require Secretary of State James Madison to commission Marbury and two others, Robert T. Hooe, and Dennis Ramsay. Marbury and his fellow plaintiffs were among forty-two persons who had been nominated justices of the peace
by President Adams on 2 March 1801, his last day in office. The senate confirmed these appointments the same day, signed the commissions, and transmitted them to Secretary of State Marshall, whom Jefferson had asked to stay on.
The commissions languished for two days as the new president took power. Assuming that he had discretion to revoke the judicial appointments because the commissions had not been delivered, Jefferson made appointments of his own, reducing the number of justices to thirty. Although Jefferson reappointed many nominated by his predecessor, Marbury, Hooe, and Ramsay were not among them. …