Case Review

October 19, 2026 · Brian Woods

Marbury v. Madison

5 U.S. (1 Cranch) 137 (1803)

The Court's Naked Power Grab!!

Introduction and Importance

Let's reveal a little reality about the third branch of our national government -- the federal court system. The education we receive as children is that the three branches of government -- the executive (President), the Congress (House and Senate) and the federal courts -- have separate powers and check and balance each other. And, furthermore, that the three branches are co-equal. Few ever seek to examine the federal courts' claim to power or where it came from. The history, if you will, is simply not taught in schools. But it's hidden in plain sight. And it's fascinating. Let's explore it a bit. To do so we must begin near the beginning -- of the Country that is. Way back in 1803 -- the same year the Lewis and Clark expedition was commissioned to see if it could discover a northwest passage to the Pacific Ocean.

The case that started it all is Marbury v. Madison ("Marbury"). I am not overstating it when I say that Marbury is the most significant decision in American constitutional law. Period. It's not arguable. And what a humdinger it is! A truly NAKED power grab by the federal courts!! Nearly everything about the Court's power and nearly an equal amount of constitutional law stems from this one decision. Because of its special significance -- and its age -- it is fitting that we begin with it in our review of significant cases decided in United States' history.

Why is Marbury so significant? Two BROBDINGNAGIAN (i.e., huge)¹ reasons. First, the Court in Marbury declared that the Constitution paramount to Congressional acts. While that proposition may seem intuitively obvious to the modern reader, nothing in the Constitution itself says that the Constitution is superior to the acts of Congress. Please read that sentence again. Second, and to put it plainly, the Marbury court found that the federal judiciary has the authority to review the constitutionality of executive and legislative acts. With this decision, the final say in what is or is not constitutional became vested in the federal courts -- all according to the federal courts themselves! Talk about being bold! Although the modern casual observer may think that proposition is also obvious, it is anything but. Nothing in the Constitution itself states that the Supreme Court has the power to interpret the Constitution or review executive or legislative actions. Read that sentence again. Now read it for a third time -- really marinate in it. These two GIANT reasons -- Constitution paramount to Congressional acts and the Supreme Court can interpret the Constitution and review legislative and executive actions in our Republic -- make this case worth exploring. So let's explore . . .

Background -- The Constitutional Convention

Before we turn to a close look the case, let's review a bit of history. The American revolutionary war was fought because the colonists felt the King and Parliament were abusing their power. As the war progressed, the colonists understandably feared creating another remote, centralized power. The result was the other extreme -- the Articles of Confederation. The Articles of Confederation quite deliberately left the national government virtually powerless during the war. But that resulted in another set of problems that almost caused the colonists to lose the war. So those persons meeting in Philadelphia in 1787 to revise the Articles of Confederation (and it was their job to revise the Articles of Confederation not to write an entirely new constitution) had a problem. How could they give a centralized government more power but simultaneously ensure that those inside the centralized government didn't abuse the power given? For an answer, they turned to Montesquieu, a European thinker. Montesquieu had written about this thing called "separation of powers," a situation in which one power center would be offset by another center of power.

The vast majority of the time spent by those attending the Constitutional convention in Philadelphia was spent in three areas. First, discussions around how to best have one power center -- the executive -- get checked and balanced by another power center -- the legislature. And, of course, vice-versa -- how the executive could check the legislature. Second, how best to check power within the legislature itself -- how one chamber (the Senate -- thought to be the more aristocratic house) of the legislature could check and balance the other chamber (the House -- thought to be the house of the common people). Finally, how the national government could be checked by the States themselves by giving the national government only limited powers.

In their quest to sort all of the details of power sharing and checking between the executive and the legislature, and within the legislature itself, as well as the power sharing between the National government and the State governments, the Supreme Court simply was largely forgotten. It was largely an afterthought -- other than the efforts to have it involved in a Council of Revisors along with the executive as a means to check the legislature. Discussions of it seem to have occupied only one or two percent of the total time spent. At best. I can say that with a fairly high confidence level -- I own and I have read the entire record of the Constitutional Convention that was assembled by Professor Max Farrand at Yale in 1911.² Based on those records, there was basically NO discussion of the Supreme Court's role vis-a-vis the legislature or executive branches or the Constitution itself.³

In 1803, when the Marbury case was decided, the Republic was in its infancy. It was an agrarian country with a tiny population, people were spread out and no cases of permanent, substantial significance had yet arisen. The Supreme Court had decided little and folks really hadn't given much thought to it as an institution. With Marbury, that was all about to change -- big time! With no further adieu, let's turn to the case itself.

The Facts

The case arose out of the political struggle between outgoing President John Adams (and his Federalist party) and the incoming President Thomas Jefferson (and his Republican party). In the closing days of John Adams's administration, Congress passed the Organic Act which created forty-two (42) new judicial positions. Adams appointed a batch of "midnight justices of the peace" on March 2, 1801 -- including William Marbury -- and the Senate approved of these new positions on March 3, 1801 -- the day before Jefferson was to be sworn in. John Marshall ("Marshall") -- who was serving as BOTH Chief Justice of the Supreme Court and as Secretary of State -- sealed their commissions and scrambled to get them delivered. Most of the new appointees received their commissions before Adams left office. But several had not been delivered when Jefferson took office. President Jefferson's Secretary of State, James Madison, refused to deliver Marbury's commission. Marbury and three other appointees whose commissions were likewise withheld, brought an action directly in the Supreme Court, requesting an order that would compel delivery of their commissions.

Procedural Posture

When lawyers do a case review, they normally discuss what is known as the case's procedural posture -- how the case arrived at the Court that is being asked to rule. As I just mentioned -- and as we will discuss at some length later -- this case was filed initially in the Supreme Court. It was attempting to invoke what is known as the Supreme Court's "original" jurisdiction. Marbury and the others (called "Petitioners") moved for the Supreme Court to issue what is known in the law as a "writ of mandamus," which is basically a court ruling that would have forced (i.e., mandates or commands -- "mandamus" is the latin term) Madison to deliver the commissions.

We will later return to the conflict found between the Constitution and a law of Congress. You see, Article III, Section 2 of the Constitution granted the Supreme Court original jurisdiction in cases involving ambassadors or when a State in the United States is a party to a case. On the other hand, the Judiciary Act of 1789 -- one of the very first laws passed in the newly-formed United States congress -- provided that the Supreme Court also had original jurisdiction to issue a writ of mandamus against officers (such as Madison) holding office under the United States government. This law -- the Judiciary Act of 1789 -- is why Marbury and the others brought their case directly in the Supreme Court.

The Supreme Court's Dilemma and Marshall's Approach

With this case, the Supreme Court sat on the horns of a dilemma. A real pickle! And I'm not talking here about the fact that Marshall himself sealed and had delivered the very commissions at issue in the case -- giving him a clear conflict of interest -- and should have recused himself for that reason. No, this dilemma posed a much bigger quandary -- and perhaps, Marshall likely thought and as you'll soon read, a real opportunity.

You see, as I explained above, those at the Constitutional Convention had understood the importance of what Montesquieu had advocated -- separation of powers so that power counteracts power -- but had neglected to flesh out what the Supreme Court's role, if any, was going to be in the new republic. And the Supreme Court had never before been in a position to potentially put some "meat on the bones" of its role -- or, if you prefer, stake its claim to power -- in the new national government. And this case presented it an opportunity to do just that -- if it was handled delicately.

The delicate nature stemmed from the Marshall's realization that his party -- the Federalists -- was out of power. Marshall and the other members of the Court also understood that the Supreme Court lacks any real enforcement powers. Therefore, if the Court ordered the Republican-appointed Madison to deliver the commissions, the Republican President Jefferson could simply ignore the order -- thumb his nose at the Supreme Court and make it look impotent. On the other hand, if the Supreme Court refused to order that Madison deliver the commissions, the Supreme Court would also look weak -- as if it was bowing down before the executive branch.

In short, the Court needed a way to establish its authority -- to claim the Supreme Court's seat at the power sharing table -- and yet not draw opposition from the Jefferson administration. The $64,000 question was -- was this even possible?

The Court's solution was brilliant (if you take the Supreme Court's side) or crafty (if you take the opposition's viewpoint). The key (or inappropriateness!) lay in the order in which the Court decided to address the issues before it. What were these issues?

The Issues

Marshall drafted the opinion in this case. And he framed it as presenting the Court with three questions. First, does Marbury have a right to the commission? Second, if so, "do the laws of his country afford him a remedy?" Third, if so, can the Supreme Court issue this remedy?

The Decision

Issue 1 -- Does Marbury have a right to the commission?

Marshall -- writing for a unanimous Supreme Court -- addressed these issues in turn. First, the Court determined that Marbury and the other justices became entitled to their commissions the moment they were signed. That is significant because the Court could have decided that delivery was required for the commissions to be valid. That would have let the Supreme Court escape its dilemma but it would have handed the Jefferson administration a win while not doing anything to advance the cause of the Supreme Court in seeking power in the Republic. So, of course, Marshall and the Court didn't take that easy out. Marshall and the Court wanted to get to the other questions!

Issue 2 -- Does Marbury have a legal remedy against the executive branch?

As for the second question -- does Marbury have a remedy under the law -- Marshall's opinion answered that the laws of the United States did provide Marbury a remedy. The Court reasoned that a purely political act was not reviewable by the courts but an act required by law (e.g., some administrative acts) was reviewable and the refusal to deliver the commissions fell into this latter category. Therefore, the federal courts could review the failure of Madison to deliver the commissions and could, as a general proposition, issue a remedy in the form of a writ of mandamus.

The first thing of tremendous and permanent significance about the Marbury decision is contained within the answer to this second question. You see, without directly stating as much, the Court was claiming power to review the constitutionality of executive actions (or, as here, the inaction of Madison). It's a giant claim to make since it does not say that anywhere in the Constitution itself. To justify the answer given, the Court famously stated that "The government of the United States has been emphatically termed a government of laws, and not of men." With that declaration, the Supreme Court's first stake to power in the new Republic was complete!

The Supreme Court had carved out a role for itself -- the power to review executive actions (or inactions). But the Court wasn't finished yet -- stopping there would have put Marshall and the Supreme Court at odds with the Republican Jefferson administration and, remember, the Supreme Court lacked any ability to actually enforce its orders! So, of course, Marshall and the Court had to continue on to the last issue it had posed for itself to answer.

Issue 3 -- Can the Supreme Court Issue An Order Aiding Marbury?

As for the last question, the Court had to decide whether the remedy sought by the Petitioners -- a writ of mandamus direct from the Supreme Court -- was permissible. You will recall from the Procedural Posture section of this essay (see above), that the Constitution allowed actions to be brought directly in the Supreme Court in only two specific instances (of which this was neither type). As you will also recall, however, an act passed by the Congress -- the Judiciary Act of 1789 -- allowed for an additional type of action to be brought originally in the Supreme Court and the Marbury case presented just such a case. There was therefore an inconsistency between the words of the Constitution and the words of the Congressional act.

Having thus identified a conflict between a congressional statute (Judiciary Act of 1789) and a constitutional provision (Article III, Section 2), the obvious question was . . . what is to be done about this conflict and who is to do it? The Court's answer is the single most important holding in Supreme Court history. The Supreme Court held that the federal courts have both the authority and the responsibility to declare the conflicting congressional statute unconstitutional.

Having declared that it was the Supreme Court's duty to declare this portion of the Judiciary Act unconstitutional, it followed that the writ of mandamus could not be issued as a remedy by the Supreme Court because the Judiciary Act's attempt to confer additional original jurisdiction on the Supreme Court was an unconstitutional expansion of the Supreme Court's original jurisdiction. The Supreme Court, under Article III, Section 2, possessed only appellate jurisdiction over Marbury's claims. To hold otherwise, Marshall reasoned, would render the explicit Constitutional provision granting the Supreme Court only two areas of original jurisdiction superfluous (i.e., without meaning).

In making these declarations, the Court was really making two key findings. First, the Court was determining that the Constitution was paramount -- it "trumped" the Congressional statute that conferred additional original jurisdiction. Second, the Court was declaring that the Supreme Court was to determine whether a particular act of Congress is in conflict with the Constitution. As support, Marshall stated that to hold otherwise would mean that the Courts "must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions."

With these two key findings, Marshall and the Supreme Court staked additional GARGANTUAN claims to power in the new Republic. In its answer to Issue Number Two, it had made a sweeping holding that IT had the right to review executive actions. In its answer to Issue Number Three, it had made a sweeping holding that the Constitution trumped a Congressional act. And also as part of its answer to Issue Number Three, it had made a sweeping holding that IT had the right to review Congressional acts and find them unconstitutional. In all three claims it was literally attempting to sweep away any doubts or questions about its power and authority in the Republic!

And what's so great about the decision is that, simultaneously with staking out its gigantic claims to power in the Republic, it also escaped the horns of its dilemma. You see, in answering the questions as it did, the Supreme Court didn't have to actually do anything! The opposition -- the Jefferson administration -- would be happy with the result since it didn't have to deliver the commissions to the Federalist judges. And the Supreme Court didn't risk impeachment by Congress⁴ by issuing an unpopular ruling. At bottom, the Supreme Court claimed GIGANTIC (er, Brobdingnagian!) power and didn't have to worry about any immediate fallout from making that claim to power (other than from a few poor, unfortunate and quickly forgotten judges who were denied their commissions -- and who cares about them!?!?!).

The Supreme Court likely believed that with after this Marbury decision, a significant amount of time would pass before another "big" issue would arise. This ruling in the Marbury case would, at that future date, just "be there" -- as a case decided long ago and unchallenged at the time it was rendered. The passage of time would basically serve to cement these claims to the Court's power in American law and, by itself, give the Court's claims to power in the Republic real and significant force. And that is exactly what, in fact, has happened! What a clever Court! Or, if you prefer, a super nefarious (i.e., wicked) one!

The Criticisms

Although they are little known or discussed in everyday American circles, all kinds of criticisms from lawyers, scholars and other "students" of the Supreme Court have been levied against the decision in the Marbury case. Let's look at a few of them.

Reached Conclusions Unnecessary to Reach

One criticism of the decision is that the Court went way beyond what was necessary to decide the case. As discussed, the Court ultimately dismissed the case because it decided that it lacked jurisdiction over it. But -- and this is a very important point to understand -- the court's jurisdiction to hear a case is always the first thing that a court must examine when a case is before it. As a later Supreme Court declared:

Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.

Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). In other words, having safely staked its claim to power, the Supreme Court could now -- a mere 63 years after Marbury -- acknowledge that a court is first supposed to determine its authority to hear a case.

That a Court must first determine that it has jurisdiction may all seem a bit obvious to the reader but let me explain. You see, everyone has opinions on this planet. What makes someone's opinion actually "matter," however, is that they are in a position to decide something and bind (i.e., obligate) others with their opinions. Absent jurisdiction, the Supreme Court was in no position to decide anything other than it lacked jurisdiction. Once it determined that it lacked jurisdiction, the Supreme Court became like everyone else -- people with mere opinions. Jurisdiction is literally "the legal right by which judges exercise their authority." Black's Law Dictionary (5th Edition).

Therefore the first two questions Marshall addressed -- the right to the commission and whether a writ of mandamus was an available remedy -- should never have been discussed at all since the Supreme Court ultimately concluded that it had no jurisdiction over the case. The Supreme Court's decision to address jurisdiction last was disingenuous at best and outright nefarious at worst.⁵

In short, the Court answered two questions -- the first two issues set out above -- that should have remained unresolved in Marbury and dealt with at a later date and in a different case. There was no reason to address whether delivery was required for the commission to be effective nor whether federal courts had any power over the executive branch. Doing it the right way -- answering Issue Number three first -- would have still resulted in a decision in Marbury that the Courts have the power to declare a Congressional act unconstitutional. But it would have deprived the Supreme Court of the opportunity to claim power to also review and check the executive branch. And the Court was willing to take issues out of order to claim they possessed power over the executive branch.

With that objection to the Marbury decision out of the way, let's turn to other, even more significant criticisms of the opinion. Among those are that NEITHER of the key findings the Supreme Court makes -- (i) that the Constitution trumps Congressional statutes; and (ii) the Supreme Court has the power to oversee the executive branch and declare Congressional laws unconstitutional -- is found in the text of the Constitution itself. And the criticisms of each of these key findings are worth separately exploring and discussing. So let's do that next.

Is the Constitution Paramount to A Congressional Law?

As noted, the Court claims that the Constitution is paramount to a Congressional statute when the two conflict. Intuitively, at least, this makes a lot of sense. Why? First, the Constitution came first and Article V set out the methods to amend its terms. Including those methods of amending it strongly suggests that amending it by Congressional statute is not allowed. Otherwise, why include a procedure for amending the Constitution -- Congress could just amend it by statute? Second, the Constitution was written down and there's not much point to a written Constitution if Congress can simply amend it by statute whenever it chooses. Third, the Constitution was clearly intended by the Founders -- and those States ratifying it -- to create a Federal government of only limited powers and permitting Congress to avoid those Constitutional limits by passing extra-Constitutional statutes would render those limitations meaningless. Last, the argument goes, it just "has to be" this way because otherwise the majority would simply pass laws that trample on the Constitutional rights of the minorities.

While those four arguments are admittedly compelling, there are good opposing arguments as well. Let's review those. The first is also the simplest. If those attending the Constitutional Convention really wanted to make it clear that the Constitution was the Supreme law of the land over acts of Congress, why not just add a simple sentence that states as much? I mean . . . how hard is that? How about something like: "In the event of a conflict between this Constitution and a law of Congress, this Constitution shall govern and control." Simple. Short. Plain. My dog could understand that. And yet nothing like that exists anywhere in the Constitution. It is simply too much of a stretch to infer that the absence of an express grant of power means that such a huge amount of power exists in an institution when it is that institution itself that is claiming the existence of such power. And the absence of such a declarative statement like what I just articulated is itself often dispositive (i.e., it wins the day) in legal cases and in legal arguments.

Even if we chalk up the absence of such a statement to a mere error of omission, another very powerful argument contrary to the Supreme Court's pronouncement is found in the text of the Constitution itself. One little word -- "and" -- perhaps settles the question contrary to the Supreme Court's claim. Article VI states as follows: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land." That language -- particularly the use of the word "and" -- appears to squarely place the Constitution and Congressional laws on equal footing. Both are considered the Supreme Law of the land. Neither the Constitution nor a Congressional statute is supreme vis-a-vis the other. Both are equally supreme. One is not more supreme than the other. That's how the plain language of the Constitution reads. And a plain language reading of the document that's being interpreted is also often dispositive (i.e., it wins the day) in legal cases and in legal arguments. And it likely would have carried the day in Marbury if it was not the Supreme Court deciding its own fate and the future role of the federal judiciary.

But hold on a minute. The Article says only Laws "which shall be made in Pursuance" of the Constitution are considered supreme along with the Constitution. Does that change our analysis? Perhaps; perhaps not. Let's look at the definition of "Pursuance."

The massive Oxford English Dictionary, completed in 1928 after nearly 60 years of efforts, traces the origins of every word in the English language and has five (5) definitions of the word. The first two definitions basically mean pursuit - to pursue something -- and therefore aren't really relevant to us here. The third definition is "The action or fact of following; that which follows or is consequent, a consequence." The fourth definition is "The action of following out (a process); following on with or continuance of something; continuation, prosecution." The last definition is "the action of proceeding in accordance or compliance with a plan, direction, or order; prosecution, following out, carrying out." All three of those definitions cite usage in sentences found in documents that predate the Constitution and thus all three of those definitions could have been what the Founding Fathers intended.

Therefore, whether the words "Pursuance thereof" was intended to place ALL laws of Congress or only some laws of Congress on the same plane as the Constitution appears to depend on the definition of the word that you choose. If "Pursuance thereof" meant following after, prosecuting, or continuing, then ALL laws of Congress are as supreme as the Constitution. If, on the other hand, the drafters meant in accordance or compliance with the Constitution (OED's last definition), then only some Congressional laws are supreme along with the Constitution. So what do we do with that situation? We have no choice but to continue our analysis.

First, one thing is plain. There are far more definitions of the word "Pursuance" that place ALL laws of Congress on the same footing as the Constitution than there are definitions of the word that would place some Congressional acts below it. If this were a numbers contest, ALL laws of Congress would be supreme along with the Constitution. But, alas, as nice and as simple as it might be to claim that sheer numbers should prevail, it seems a bit too simple. So let's continue!

Second, we must consider that it would have been a ridiculously simple thing for those at the Convention to choose a different set of words if they had really intended to place some laws of Congress below the Constitution. For example, the Founders could have said:

• "This Constitution, and the Laws of the United States that are not inconsistent with it . . . shall be the supreme Law of the Land."
• "This Constitution, and the Laws of the United States not conflicting with it . . shall be the supreme Law of the Land."
• "This Constitution, and the Laws of the United States not incompatible with it . . . shall be the supreme Law of the Land."
• "This Constitution, and the Laws of the United States not repugnant to it. . . shall be the supreme Law of the Land."
• "This Constitution, and the Laws of the United States not discrepant with it . . . shall be the supreme Law of the Land."
• "This Constitution, and the Laws of the United States not incongruent to it . . . shall be the supreme Law of the Land."
• "This Constitution, and the Laws of the United States in accordance with it . . . shall be the supreme Law of the Land."
• "This Constitution, and the Laws of the United States compatible with it . . . shall be the supreme Law of the Land."
• "This Constitution, and the Laws of the United States consistent with it . . . shall be the supreme Law of the Land."

Any of these phrases would have made it plain that a Congressional law would yield to the Constitutional term in the event of a conflict. But none of those phrases were chosen. And their choice of "Pursuance" -- a word with LOTS of definitions -- when so many cleaner and easier to understand alternatives were available is also, in the law, often dispositive (i.e., it wins the day) in legal cases and in legal arguments. And, again, perhaps would have been had the Supreme Court not been deciding its own fate and the future of the federal judiciary.

The third thing we should do in figuring out what the drafters of the Constitution meant with their verbiage choice is to remember history. Why? Because those attending the Constitutional Convention certainly were remembering it since it was a very recent and very significant history to them. The Articles of Confederation had, only recently, nearly cost the Colonies the war against England. The Articles of Confederation severely restricted what Congress could do -- quite intentionally since at the time the Colonies viewed themselves much more as independent and sovereign countries. But those restrictions meant that Congress couldn't impose taxes, regulate commerce and so on. And the Founders at the Constitutional Convention may not have wanted to hamstring the new Country under a similarly restrictive Constitution. So they may very well have intended one of the broader definitions of the words "pursuance thereof" -- instead of one of the more restrictive phrases set out above -- to give Congress flexibility in dealing with new problems as they arose. That strikes me as a very plausible and fair reading. As I think it would strike most impartial observers. In the law, such things are often dispositive (i.e., it wins the day) in legal cases and in legal arguments. But the Court didn't discuss this history -- or its implication -- in its opinion and one must wonder whether that absence was a bit self-serving.

But regardless of the definition of the word "Pursuance" that one chooses, there's a much bigger problem in looking to this language at all for enlightenment on our problem. That's because it is entirely possible that those at the Constitutional Convention did not intend to do anything at all with the words "Pursuance thereof" other than to make it crystal clear to the States that BOTH the Constitution and the Laws of Congress were supreme vis-a-vis the individual States. In other words, the States -- and the legislatures thereof -- would have to yield to both the United States Constitution and to laws passed by the United States Congress. And that reading -- essentially refusing to attach much significance to the words "Pursuance thereof" at all -- is also entirely consistent with the history under the Articles of Confederation that they lived through and were trying to correct and guard against. And that reading -- clean, simple and precise -- makes a lot of sense to me. In the law, a court will often "read out" the significance of verbiage in a dispute over meaning when there's an equally good explanation for its inclusion in the text of a document. In other words, a court might reasonably make efforts to find the verbiage "Pursuance thereof" meaningless in this question because there's another explanation for the inclusion of those words at that point in the document. And that, too, is often dispositive (i.e., it wins the day) in legal cases and in legal arguments. But doing that would not have aided the Supreme Court in staking its claim to power!

With that, let's move on to another criticism of the Court's pronouncement that the Constitution is paramount. It also is a straightforward one -- a democratic one! Congress is elected under and pursuant to the Constitution. Its members swear an allegiance to the Constitution. Its meetings are held in the District of Columbia under the banner of the Constitution. All sessions and laws passed necessarily followed the adoption of the Constitution. It's operating under the authority granted in the Constitution and it is sitting as a Constitutional body for the sole purpose of carrying out the terms of the Constitution. It is, literally speaking, sitting and acting for and on behalf of the people of the United States that are then (or were at the time of the prior election) living, breathing, working and suffering. A fortiori (i.e., because those other things are true this must also be true) anything Congress does is, perhaps by definition, in pursuit, prosecution, furtherance of the Constitution. It can even be compellingly argued that every act is, at its core, necessarily consistent with a Constitution that was created by, for and of the People. And if an action of Congress is not perfectly consistent with the Constitution's terms, then the voters at the next election can simply find representatives that would better honor the Constitution!

In addition, some take the argument a bit further and strongly suggest that words written perhaps 20, 40, 100 or 200 years ago -- by people who are perhaps long dead -- should not strictly govern the people and their representatives of today. In other words, those alive today -- more accurately their elected representatives -- are best equipped to determine what the Constitution should and does mean to and for those living persons. Why should current representatives not have wide power to interpret the document? As support for this, it should be noted that most of the first ten amendments to the Constitution -- the Bill of Rights that came out of the first Congressional session immediately following ratification -- did, in fact, contain express limitations on Congress and its powers by outright prohibiting it from taking certain actions. In other words, those living at the time the Constitution was prepared, including members of the Constitutional Convention itself, certainly knew how to limit what Congress could do when they wanted to put such limits in place! And those limits were expressly designed -- along with the Executive branch's veto power -- to check a runaway Congress who would otherwise have done things at odds with what was for the benefit of the Country and its citizens.

What about the risk that if the Constitution is not paramount, the majority could pass laws that trample on the rights of a minority? That is obviously a valid concern but it's not necessarily a reason to make the Constitution paramount to an act of Congress. Why not? Let's remember a few things. First, the executive branch was given a veto power -- and it was actively discussed at great length in the debates that the power of the veto was meant to check a tyrannical Congress. Second, the Constitutional convention members did not include any "bill of rights" in the original Constitution because it was thought unnecessary and also risky. It would limit the basic rights that were thought to exist outside the Constitution. The "bill of rights" came later as an additional form of safeguard to those basic rights. In other words, the basic rights of all citizens -- majority or minority alike -- were felt to exist in the state of nature and if they were not taken away by the express terms of the Constitution itself, they continued to exist as a matter of natural law. Therefore, many members of the Convention felt -- and voted accordingly in the Convention itself -- that no such expression of basic natural rights was necessary to include in the language of the Constitution and could, in fact, eliminate some natural rights if a written expression of only some were included in the Constitution.

In short, many people living in that Revolutionary war era -- including obviously the vast majority of those attending the Constitutional Convention itself -- didn't likely feel it necessary to state so obvious a proposition. Such rights were "natural" and inviolate and simply could NOT be taken away by a majority in Congress passing some law pretending to do so. If the Executive branch didn't save them, any person -- or minority group -- wronged by some Congressional statute could proceed under "natural law" to preserve their "natural rights," and neither the Constitution nor the Congress could lawfully strip any person of such "natural" rights. To be fair, however, we should note here that the availability of relief based on claims of natural rights have never been fully fleshed out in this Country. Whether such natural rights would provide a person or minority group a remedy in a particular situation still just isn't entirely known.

The point, however, is simply that to many (likely most) living in the Founding generation, who had just made bold declarations of natural rights in the Declaration of Independence, and who were intimately familiar with John Locke, Rousseau, etc., such things as "natural law and "natural rights" were felt as obvious and transparent as the sun in the sky. Many basically felt that Congress couldn't eliminate the sun and, equally, it couldn't eliminate the natural rights of the citizens or any minority group living in this Country. We will more fully explore these concepts of natural law and natural rights in a later essay on this website. Enough has been said for now to dispose of that argument as a basis for making the Constitution paramount to a law of Congress.

Does the Supreme Court have the power to oversee the executive branch and declare Congressional laws unconstitutional?

As for the second proposition -- the power of the federal courts to declare a Congressionally passed law unconstitutional -- the Supreme Court acted as if the outcome was never seriously in doubt. Marshall was cleverly dismissive, declaring: "The question, whether an act, repugnant to the Constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest." Unfortunately for Marshall and the Supreme Court, this question was not and still is not obvious. There are compelling counterarguments to the federal court's claim to power. Let's review those next.

The Court's first claim was that the Constitution imposes limits on governmental power and those limits are meaningless unless a federal court can enforce them. In fact, however, many countries have written constitutions and many of those do not give their courts the power to invalidate a conflicting law. See, e.g., Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare in Comparative Constitutional Law (2008) (judicial review not necessary to protect individual rights). Simply stated, a government of limited powers does NOT imply or demonstrate that the courts should enforce those limitations. For example, Congress could have done that itself and, absent an adequate Congressional response, the voters could have done it for Congress by replacing the recalcitrant representatives.

The Court next argued that the right to review the Constitutionality of a law under review by it is inherent in the judicial role. But that's just not true. A court can easily interpret and apply a law without making a decision concerning its constitutionality. The Court could even openly question whether two provisions are at odds with one another without making a decision; leaving it up to Congress or the Executive to fix the problem (if it concluded there was a problem).

Marshall next claimed that because the Supreme Court was given authority to decide cases "arising under" the Constitution, the federal courts had the implied power to declare laws unconstitutional. But, again, that's just not necessarily accurate. The federal courts could still have a meaningful role without the power to declare a federal law unconstitutional. They could still interpret federal laws and could still declare state laws unconstitutional (under the Supremacy clause). Merely because a case "arises under" the Constitution and gets to the federal courts for that reason does not necessarily mean the federal courts can therefore declare a law unconstitutional. There's a giant disconnect there in the Supreme Court's self-serving claim.

The Court next claimed that judicial review is required because judges take an oath of office. But the Constitutional oath verbiage only requires that a judge "support" the Constitution. Support may mean a lot of things. But it does not mean "defend" and it sure as heck doesn't mean "interpret." And it's an even bigger leap to say that taking an oath of "support" means the Court must therefore declare a law of Congress unconstitutional. Moreover, Judges take the same oath that every other federal officer takes and no one suggests that the oaths of those other officers requires them to defend or interpret the Constitution. But even so, if the Supreme Court didn't have the power to pass on the constitutionality of a law it couldn't violate any oath by failing to do so. It's just a bad argument -- it begs the question.

The Court finally turned to the fact that in the Supremacy clause discussed above, the Constitution is listed first -- before acts of Congress. Obviously that argument ignores the all important "and" clause that follows in the text. The Court looked to the word "Pursuance" to bolster its contention and declared that its inclusion meant that only those Laws "which shall be made in pursuance of the constitution, have that rank." As you know, that argument fails for all the reasons stated above. Regardless, it is a different thing to say that the Constitution is supreme over laws not made in "pursuance thereof" and an entirely different thing to say that a federal court makes that determination or can invalidate those that are contrary. As we discussed, this clause could be directed solely to the States or, if to Congress as well, it could be seen merely as a declaration that Congress should only enact laws if they are permitted by the Constitution. Inclusion of the word "Pursuance" -- even if that word was meant by the drafters to have the definition the the Court wants it to have -- doesn't presage, portend or necessarily suggest a role for the Court.

When we boil it all down, the important thing for you to remember here is that the Supreme Court was searching -- groping? -- for all of these sources for its claimed powers because the Constitution itself is loudly silent (is that a thing?) on these matters. And all of its efforts to find support for its gigantic claims to power are necessarily weak for that reason alone. One thing is clear and that is that if I were going to claim such a huge amount of power, I'd sure feel better if I had strong support. Might there be something available now that was not available to the Court at the time it issued its decision in Marbury? In fact, there is. Let's look at that next.

At the time of the opinion, the records of the Constitutional Convention debates were sealed and not available for inspection. So they couldn't be used by the Supreme Court in its attempt to bolster its claim to power. Unfortunately for the Court, we know now -- because the records have been released -- that the strong support it so desparately needed just isn't there.

As to those records of the Constitutional Convention, you may remember what is known as the "New Deal" era during the Great Depression. President FDR and Congress passed a bunch of laws in the early 1930's and the Supreme Court struck them down as unconstitutional. FDR got mad -- to put it mildly. He threatened to "pack the Court" with more judges. So Congress held hearings. And in those hearings, one of the most famous Constitutional law experts in our Country's history, Edward S. Corwin, was called to testify. He was asked about the power of judicial review and the Constitutional Convention. Corwin stated the "people who say the framers intended [judicial review] are talking nonsense." Corwin pointed out that -- as discussed in a footnote above -- that there is some support for the Court in those records. But I've read those records and can tell you that it's minuscule support at best.

It is entirely possible that even if we are willing to concede that the Constitution is solely supreme, it could be Congress -- and not the federal courts -- that has the final say in interpreting the Constitution. As a famous Supreme Court justice, Oliver Wendell Holmes, once declared: "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." In other words, what may be important is to recognize the Supremacy of the Constitution over state laws, not over laws passed by the US Congress. Or it may be important to recognize the Supremacy of the Constitution over federal laws. But that simply does not suggest that the federal courts should make such a declaration as opposed to the people's elected representatives.

When we boil this all down we are left with one inescapable result: It is simply undeniable that the power of judicial review is not granted in the Constitution. As much as the federal courts may have wanted to have that power, it just isn't found in that document. I wish I could put it another way but the simple fact is that the Supreme Court's claim to this power was simply a self-serving power grab.

Conclusion

To say that the Marbury case is important just doesn't do it justice. The legal foundations for the Court's decision are, at best, built on shaky ground. Standing on thin ice. Hanging by a thread. Out on a limb. Pick whatever image you prefer. What's important is that it's entirely possible -- even plausible -- that the Court's reasoning and their holdings are completely at odds with the language of the Constitution itself and what the Constitutional drafters intended.

While people can certainly argue over whether it has been a "good thing" for our country to have the Supreme Court act as a co-equal branch of government, it does underscore why criticisms of the Supreme Court are often heard over the past 223 years. Andrew Jackson, Teddy Roosevelt, FDR, Donald Trump and many others have often fought against the Supreme Court or threatened its claims to power. And when you understand what the Court did in the Marbury case, and how Marshall went about doing it, you can now understand a little bit more as to why those claims are raised again and again about the Supreme Court's actual, Constitutionally-based authority.

The best solution, of course, is a simple amendment to our Constitution in which the precise authority of the federal courts is articulated. Only by that process can the actual authority of the Supreme Court -- and its inferior federal courts -- be determined. Until that occurs, controversial decisions made by the Supreme Court will continue to result in calls for impeachment, court-packing, ignoring the order and the like.

In the interim, we are left with opposing statements from commentators and Judges. Judge Learned Hand, a famous judge but never a member of the Supreme Court, after acknowledging the Court's shaky Marbury ground, said:

Without some central authority to click the boundaries, the federated system would have collapsed. It was essential that there should be some body which could declare what were the power limitations of each department... It was not a logical necessity, but a practical one, and the country has accepted it.

There are several problems with this statement. To begin, people accept all sorts of things in life but that doesn't make them right or correct or just. Moreover, Justice Holmes didn't see a collapse occurring if the federal courts lost their ability to declare a federal law unconstitutional. And, finally, Learned Hand's statement fails to answer the fundamental question -- why the federal courts other than because they said so?

As I see it, the problem is that power, once seized, is rarely relinquished. And largely unfounded claims to power can lead to abuse -- in rulings and in bold, sweeping, broad and offensive pronouncements. For example, consider this from the Supreme Court: "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, concurring). Bold! If you like that one, sink your teeth into this one, an even more arrogant declaration from a man who served as Chief Justice of the Supreme Court: "We are under a Constitution, but the Constitution is what the judges say it is . . . ." Charles Evans Hughes, Speech Before the Elmira Chamber of Commerce, Addresses and Papers, 133, 139 (1908). Finally, there's this unanimous pronouncement from a more recent Supreme Court:

[Marbury] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.

Cooper v. Aaron, 358 U.S. 1, 17-19 (1958) (emphasis added). And there you have it. Arrogant. Bold. Sweeping. Simple. Straightforward. Final. A fait accompli! I don't know about you, but I'll sleep better at night knowing that the Supreme Court has humbly accepted its own self-serving claim to power.

After Marbury, the federal courts took their place amongst those sharing power and ruling over this Country. At one level, we can accept their rise as a check on the attempted exercises of power by the President and/or Congress. That's certainly what we get taught in grammar and high school. It's civics 101. At another level, however, we recognize that this power center is small, unelected and appointed for life. And, as a result, potentially much more powerful -- and dangerous. What's more, its entire foundation -- its complete claim to legitimacy -- is built upon what is, at best, quicksand. Or, if you prefer a different image, picture a white-haired, old, and overweight but politically connected white guy⁶ perched upon a four legged-stool that's missing two legs!

And while it all started with Marbury, it certainly didn't end there. In later case reviews, we will explore how the Supreme Court has continued to expand its power and flex its muscles over the course of American history.