Marbury v. Madison, one of the first Supreme Court cases
asserting the power of judicial review, is an effective argument for
this power; however, it lacks direct textual basis for the decision.
Marshall managed to get away with this deficiency because of the
silence on many issues and the vague wording of the Constitution.
During the early testing period when few precedents existed, there was
much debate about fundamental issues concerning what was intended by
the words of the Constitution and which part of government should have
the final word in defining the meaning of these words. Marshall used
the Marbury case to establish the Supreme Court’s place as the final
judge. Marshall identified three major questions that needed to be
answered before the Court could rule on the Marbury v. Madison case.
The first of these was, “Has the applicant a right to the
commission he demands?” The Constitution allows that “the Congress may
by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, . . . ” (Art. II, 2). The Judiciary
Act of 1793 had given the President the right to appoint federal
judges and justices of the peace; there is no dispute that such an
appointment was within the scope of the president’s powers. Debate
arises because the Constitution is silent on the exact time at which
the appointment is considered complete. The Supreme Court ruled that
“when a commission has been signed by the president, the appointment
is made; and that the commission is complete, when the seal of the
United States has been affixed to it by the secretary of state.”
This ruling does not have direct constitutional support, but it is not
The second question which Marshall addressed was, “If
Marbury has a right, and that right has been violated, do the laws
of this country afford him a remedy?” The answer is logically yes
although there are no specific words in the Constitution to support
such an answer. Based on the type of government intended by the
Constitution, the government is expected to protect individual
liberty. As Marshall says, “The government will certainly cease to
deserve to be termed a government of laws, and not of men if the
laws furnish no remedy for the violation of a vested right.” However,
with this assertion Marshall established the power of the Supreme
Court to review actions of the executive branch – a power that does
not stem directly from the Constitution.
The third and final question which Marshall addressed was
whether Marbury “is entitled to the remedy for which he applies.”
Marshall further divides this question into two parts: the nature of
the writ and the power of the Supreme Court. In examining the nature
of the writ, Marshall solidifies further the Supreme Court authority
over members of the executive branch. Marshall admits that “the
officer to whom the writ is to be directed, must be one to whom, on
legal principles, such writ may be directed . . . ” and that the
Supreme Court cannot “enquire how the executive, or executive
officers, perform duties in which they have discretion.” Yet Marshall
insists that the Supreme Court can issue a mandamus “where the head
of a department is directed by law to do a certain act affecting the
absolute rights of individuals.” This assertion does not have
Constitutional basis. The Constitution does not expressly grant the
Supreme Court power over either of the otherbranches of government.
Finally Marshall gets to the question based on which he
decides the case – the Supreme Court’s jurisdiction over this case.
For the first time in this case, Marshall uses direct constitutional
basis to make his ruling. He argues that,
“If it had been intended to leave it in the discretion of the
legislature to apportion the judicial power between the supreme and
inferior courts according to the will of that body, it would certainly
have been useless to have proceeded further than to have defined the
judicial power . . . The plain import of the words seems to be, that
in one class of cases its jurisdiction is original and not appellate;
in the other it is appellate, and not original.”
He bases this ruling on Art. III 2, which enumerates the cases in
which the Supreme Court shall have original jurisdiction. Marshall
further maintains that the Constitution is the supreme law of the
land. In this contention as well Marshall has constitutional basis in
Art. VI, which states, “This constitution, and the Laws of the United
States which shall be made in Pursuance thereof; … shall be the
In his typical style, Marshall follows this constitutionally
based statement with one of the most controversial rulings, which has
no constitutional basis. He asserts, “It is emphatically the province
and duty of the judicial department to say what the law is.” There is
nothing in the Constitution that assigns the duty of review solely to
the judicial department. Although his decision loosely construes and
even stretches the meaning of the Constitution, Marshall’s ruling on
this case overall is not detrimental to the well-being of the American
people. The Supreme Court is the only branch of government that could
act to strengthen the national government during the early history of
the Constitution. Clearly, Congress could not take on the states’
rights advocates and the state legislatures. If an early Congress had
passed a law which a state government objected to, the state
legislature might have simply nullified the law, thus forcing the
national government into a precarious situation. Congress would have
to risk causing the state to leave the Union to force them to comply
with the new law. Furthermore, the president also was not in a
position to allow the federal government more leeway in interpreting
their powers. He does not make any laws of his own and has no power to
settle any questions of the states. Clearly, the Supreme Court was the
branch that could most easily facilitate the strengthening of the
national government into an effective and unified nation rather than
thirteen independent countries as the states had seemed under the
Critics will protest that the people do not elect the Supreme
Court Justices and therefore the Supreme Court should not have the
power of judicial review. As McCloskey points out, “No institution in
a democratic society could become and remain potent unless it could
count on a solid block of public opinion that would rally to it’s side
in a pinch.” Clearly, the Supreme Court is ultimately responsible to
the will of the people. By maintaining independence from politics, the
Justices avoid the major problems of political parties and party
platforms. Furthermore, the Supreme Court’s small size allows the
Constitution to speak with a unified voice throughout the country.


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