ARTICLE TEXT

Almost every constitutional system that allows courts to strike down legislation traces the idea back to one case. Marbury v Madison, decided by the Supreme Court of the United States on 24 February 1803, established that courts have the power, and the duty, to refuse to apply a law that conflicts with the Constitution. The case is admired not only for its principle but for the political skill with which Chief Justice John Marshall secured it.

The Political Background

In the election of 1800, President John Adams and his Federalist Party lost power to Thomas Jefferson and the Democratic-Republicans. In the final weeks of his presidency, Adams made a series of judicial appointments, the so-called “midnight judges”. One was William Marbury, appointed a justice of the peace for the District of Columbia. His commission was signed by Adams and sealed by the Secretary of State, who happened to be John Marshall himself, recently confirmed as Chief Justice. But it was not delivered before Jefferson took office.

Jefferson’s new Secretary of State, James Madison, refused to deliver it. Marbury applied directly to the Supreme Court for a writ of mandamus, an order compelling Madison to hand over the commission. He relied on section 13 of the Judiciary Act 1789, which appeared to give the Supreme Court power to issue such writs in its original jurisdiction.

The Court was in a difficult position. If it ordered Madison to deliver the commission, the Jefferson administration would almost certainly ignore the order, exposing the Court’s weakness. If it refused, it would appear to bow to political pressure.

The Three Questions

Marshall structured his opinion around three questions. First, did Marbury have a right to the commission? Yes: once the commission was signed and sealed, the appointment was complete, and withholding it violated a vested legal right. Second, did the law give him a remedy? Yes: where there is a legal right, there must be a legal remedy, and a government of laws cannot leave the violation of a vested right without one. Third, was mandamus from the Supreme Court the right remedy? Here Marshall turned the case.

The Decisive Step

Article III of the Constitution sets out the Supreme Court’s original jurisdiction, the cases it can hear first rather than on appeal, and cases like Marbury’s are not among them. Section 13 of the Judiciary Act, as the Court read it, tried to add to that original jurisdiction. The question was therefore whether an Act of Congress that conflicts with the Constitution is valid law.

Marshall answered that it is not. The Constitution is the supreme law, created by the people to limit the powers of government. If Congress could override it by ordinary legislation, written limits would be meaningless. When a law conflicts with the Constitution, a court must decide which rule governs the case, and it must prefer the Constitution. In the opinion’s best-known sentence, Marshall declared that it is emphatically the province and duty of the judicial department to say what the law is.

So the Court held section 13 unconstitutional and declined to issue the writ. Marbury never became a justice of the peace. But the Court had asserted a power far greater than the one it gave up, and it did so in a way the Jefferson administration had no means of resisting, because it ordered them to do nothing.

Why It Matters

Marbury v Madison is the foundation of constitutional judicial review. The US Supreme Court did not strike down another federal statute until Dred Scott v Sandford in 1857, but the principle was settled. Many later constitutions, including those of India and Bangladesh, wrote judicial review into their texts directly. In Bangladesh, Article 7 declares the Constitution the supreme law and provides that any law inconsistent with it is void to the extent of the inconsistency, and Article 102 gives the High Court Division the power to enforce it. The logic of Marbury underlies both.

For students, the case is also a lesson in judicial strategy: Marshall won a lasting institutional victory by deciding the immediate dispute in the government’s favour. For anyone studying the relationship between courts and elected branches, it remains the natural starting point.

Sources

1. Marbury v Madison, 5 U.S. 137 (1803), Justia: https://supreme.justia.com/cases/federal/us/5/137/
2. US National Archives, Milestone Documents: Marbury v Madison: https://www.archives.gov/milestone-documents/marbury-v-madison
3. Constitution of the People’s Republic of Bangladesh, Bangladesh Laws: http://bdlaws.minlaw.gov.bd/act-367.html