Marbury V Madison-An Analysis

By Kelly, M. R. L. L. | The High Court Quarterly Review, July 2005 | Go to article overview

Marbury V Madison-An Analysis

Kelly, M. R. L. L., The High Court Quarterly Review

Abstract: Marbury v Madison, the early nineteenth century American case, profoundly affects to this day Australian jurisprudence, as a result of acceptance by the High Court of its "principles" as "axiomatic," and serves as a basis for the justification of judicial supremacy over the legislature and the executive. The attachment to Marbury rests, however, on little sustained analysis of the case itself. This article analyzes the case in its historical, political and legal milieu. The analysis reveals that there is little if any principle involved, and that the opinion has little legal merit. It argues that in elevating the judicial power in interpreting the US Constitution, for essentially political and person reasons, Marshall CJ perpetrated a fraud upon the Constitution by deliberately marginalizing the role of the people in amending the Constitution, and effectively giving that right to the Court as sole interpreter. The High Court's endorsement of this flawed, foreign and essentially irrelevant case for the vastly different Australian constitutional context, has resulted, it is argued, in the stultification of any vibrant democratic constitutionalism in Australia by usurping the people's right to know, understand and change their Constitution, and arrogating those junctions solely to the judicial interpretations of the Court.

But in our system the principle of Marbury v. Madison is accepted as axiomatic, modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs. (1)


The 200th anniversary of Marbury v Madison (2) coincided with the 100th anniversary of the establishment of the High Court of Australian (3) The old case of 1803 had wrought powerfully upon lawyer and republican, Andrew Inglis Clark, one of the initial "Founding Fathers" of Australia's Constitution. He, understanding that Marbury v Madison established judicial supremacy, also insisted on the inclusion of a section in the Australian Constitution to ensure that Australia's High Court would have the capacity to accord writs of mandamus, (4) to avoid that same "difficulty" Marshall had identified in Marbury. (5) The case has had an even more powerful impact upon the High Court over the last century. To a very large degree, it has been the High Court's understanding of Marbury which has validated its claims to supremacy in the Australian constitutional context.

The dictum of Justice Fullagar in the Communist Party case (6) of 1951 quoted at the beginning of this article has been iterated many times by High Court Justices, always elliptically (and therefore misleadingly), but always powerfully. In 2003 the High Court said:

   As Fullagar J said, in Australian Communist Party v The
   Commonwealth, (7) "in our system the principle of Marbury v Madison
   is accepted as axiomatic." It is the courts, rather than the
   legislature itself, which have the function of finally deciding
   whether an Act is or is not within power. (8 9)

Justice Brennan, in a much-quoted dictum in Attorney-General (New South Wales) v Quin, (10) said:

   The duty and the jurisdiction of the courts are expressed in the
   memorable words of Marshall CJ in Marbury v Madison: (11) "It is,
   emphatically, the province and duty of the judicial department to
   say what the law is." (12)

In The Commonwealth v Mewett, (13) a case concerning crown immunity from suit, Justices Gummow and Kirby said:

   Moreover, the acceptance in Australia of the principle in Marbury v
   Madison as "axiomatic", placed a fundamental limitation upon any
   general acceptance in the exercise of federal jurisdiction of the
   maxim that the Sovereign could do no wrong.... (14) ... To deny
   such a claim on the footing that, in the absence of enabling
   legislation, the Crown can do no wrong and cannot be sued in its
   own court would be to cut across the principle in Marbury v
   Madison. … 

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