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Prof. Yanira Reyes Gil

We are under a Constitution, but the

Constitution is what the judges say it is

-Charles Evans Hughes, 1907

The decision


Historical background
Who was in power?
What was really the issue?

Election of 1800


John Adams

Thomas Jefferson



Under President Adams

John Marshall
Served as Secretary of State
Had played a key role in shaping Article III (Judicial Branch) in U S Constitution

Chief Justice
John Marshall

Adams Secretary of State

Became Chief Justice on
January 31, 1801
Thomas Jeffersons cousin
Repeatedly confirmed the
supremacy of federal law
over state law
Supported an expansive
reading of the enumerated

And the outcome of the elections reveal the

next president of the United States is...

Thomas Jefferson
Wins the Election!!!

Federalists had not only lost the Presidency but they also lost control in Congress.

November 1800

March 1801


New President
Takes Office

Fear that Federalist Party will no longer exist

Federalist Congress passes the Judiciary

Act of 1801 and the Organic Act of 1801

The Act gave Adams the power to appoint several new federal judges
and justices of the peace before he left office.

President Adams signs appointments for many new federal

judges. His Secretary of State was instructed to deliver the

But not all were delivered before

President Adams left office.

Midnight Judges

Before leaving office, President Adams appoints John Marshall as Chief Justice of the US Supreme Court

John Marshall
Actually served as both Secretary of State and Chief Justice of the US
Supreme Court in 1801 for President Adams before Adams left office.

Now, we must introduce...

One of the judges appointed by
President Adams that did not receive
his commission
Commission Checklist
Senate Approved
Commission Drawn Up
Secretary of State Seal
William Marbury

Commission Delivered by
John Marshall (S of S) NO

So many commissions, they could not all be

including Marburys Commission!!!

Now President Jefferson takes office and he learns of Adamss attempt

to pack the Court with Federalists. President Jefferson instructs his
Secretary of State James Madison to refuse the appointments.

President Thomas Jefferson

Secretary of State James Madison

I want my job!!!

Marbury appeals directly to the United

States Supreme Court to gain his
appointment. He wanted the Supreme
Court to issue an order forcing Secretary
of State James Madison to give Marbury
his Commission.
Basis of argument: The Judiciary Act
(Enacted by Congress) gives the Supreme
Court the power to issue such an order.
(Original Jurisdiction)

Remember who is the Chief Justice

John Marshall
Former Secretary of State
Appointed as Chief Justice by President Adams in 1801

According to Marshall,
what are the issues?

Has the applicant a right to the commission

he demands?



What does it mean?

If he has a right, and that right has been

violated, do the laws of this country afford
him a remedy?
If they afford him a remedy, is a mandamus
issuing from this court?

How did the court solved the first two issues?

Was there a logical order?
On the third issue, how did the court decide?

What sources it used?

Question 1: Does Marbury have a right

to the Commission?
And the final answer to Question 1 is

When the seal was affixed

Chief Justice Marshall:

Where there is a right, there must be a

**Marbury wins Question 1**

Question 2: Does Marbury have the right to

take the case to the Supreme Court?

Judiciary Act of
The Supreme Court
has original
jurisdiction in this

US Constitution
Article 3:
The Supreme Court
has original
jurisdiction in specific
cases only.

Statutes in conflict

Judiciary Act of 1789, 13

The Supreme Court shall also have appellate

jurisdiction from the circuit courts and courts of
the several states, in the cases herein after
provided for; and shall have power to issue writs
of prohibition to the district courts . . . and writs
of mandamus . . to any courts appointed, or
persons holding office, under the authority of the
United States

Statutes in conflict

U.S. Const. art. III, 2 Clause 2

"In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State
shall be a Party, the supreme Court shall have
original Jurisdiction. In all the other Cases [within
the judicial power of the United States], the supreme
Court shall have appellate Jurisdiction, both as to
Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make."

Question 2
And the final answer to Question 2 is

The Commission cannot be granted.

The United States Constitution is the Supreme Law of

the Land.
That section of the Judiciary Act is unconstitutional.



Did the court had jurisdiction?

How did the court justified this decision?
Would if have made a difference if the court decided this
issue first?

Unanimous decision

In a unanimous decision, written by Justice

Marshall, the Court stated that Marbury, indeed,
had a right to his commission.
But it also ruled that the Court had no
jurisdiction (or power) in the case and could not
force Jefferson and Madison to seat Marbury. The
Judiciary Act of 1789 gave the Supreme Court
jurisdiction, but the US Constitution did not.
The Courts first responsibility is to uphold the
Constitution. When there is a conflict, the
Constitution prevails.


Could have Marshall decide different on the

jurisdiction issue?

Why didnt he decide that?

Could Marbury have gone to an lower court?

Is this decision contradictory? Why?

Possible Reasons

The Commission was for a lower court

that expired in 3 years, so it could have
expired by the time the case was over.

The case could have just been a plot to

try to aggravate the conflict between the
Federalists and the DemocraticRepublicans.

Marbury could have moved on to a new



Who won?

Charles Warren (The Supreme Court in the US History, 1922)

argues the main problem with Republicans (Jefferson) with
this decision was that Marshall decided the Supreme Court
could intervene with the executive.

Judicial Review

The Courts ruling meant the Supreme Court had the

power of judicial review. That is, the Court had the
right to review acts of Congress and, by extension,
actions of the President. If the Court found that a law
was unconstitutional, it could invalidate the law.
Marshall argued that the Constitution is the
supreme law of the land and that the Supreme
Court has the final say over the meaning of the
Constitution. He wrote, It is emphatically the
province and duty of the judicial department
to say what the law is.


Is judicial review constitutional?

Different views on the necessity of judicial


Marshalls arguments

The constitution is the fundamental and paramount

law of the nation. It was necessary to present the
constitution as a regulatory document and not merely
declaratory to determine: that an act of the
legislature, repugnant to the Constitution, I void.

The Constitution is a document that courts can

recognize, interpret and apply. Thus, courts have the
power to adjudicate THE correct constitutional



The people exercised sovereignty when adopting



The Constitution is a fundamental, enduring law.


Statutes, executive acts, and acts of states are lesser laws

reflecting temporary, fleeting views.


Fleeting laws and acts (even those reflecting majorities) that

conflict with fundamental law must be disregarded.


The Supreme Court is in the best position to interpret and

preserve the Constitution.

What actually happened to

Marbury went on to become president
of a bank in the Georgetown section
of Washington in 1814.
He died in 1835, the same year as John
From: Yearbook 1977 Supreme Court Historical Society

Cases Impact

Key role in making the Supreme Court

a separate branch of government on
par with Congress and the executive
Established Judicial Review

forever after the Supreme Court has had

the power to rule laws unconstitutional.

No other laws ruled unconstitutional for

another 50 years until 1857