Chief Justice Marshall’s Articulation of Judicial Independence: Marbury v. Madison

This month marks the 210th anniversary of the landmark Supreme Court decision Marbury v. Madison. Many scholars credit the decision with establishing the practice of judicial review. Others claim that the decision declared the Court to be the final, authoritative interpreter of the Constitution. Professor Jeffrey Sikkenga responds to both claims, while clarifying the enduring significance of the ruling.

In the waning days of the Adams administration in early 1801, the Federalist Congress tried to strengthen the federal judiciary and soften its defeat in the election of 1800 by creating a number of federal judgeships, including justice of the peace positions in Washington DC. President Adams signed one of those justice of the peace commissions for William Marbury, but the commission did not make it from Secretary of State John Marshall to Marbury before the new Jefferson Administration took over in March 1801. In the meantime, Marshall had been confirmed as Chief Justice of the Supreme Court. When the new Administration took office, Secretary of State James Madison refused to give Marbury his commission; Marbury thereupon sued Madison and asked the Supreme Court to issue Madison a writ of mandamus, a judicial order requiring Madison to hand over the commission. The Court had been given the power to issue such writs in Section 13 of the Judiciary Act of 1789.

Eventually, the Supreme Court took Marbury’s case, and in 1803 it handed down what has been widely viewed as one of its most important decisions. Many people believe that Marshall’s opinion established the practice of judicial review — the power of the federal courts to strike down unconstitutional laws and executive actions. Others go further and contend that Marbury declared the Supreme Court to be the final, authoritative interpreter of the Constitution.Neither is true. As one scholar has noted, the Supreme Court had already been practicing judicial review before Marshall arrived: from 1789-1801, it decided eight cases involving a constitutional challenge to federal laws, and did the same in at least three cases involving state laws. While President Thomas Jefferson did not like the part of Marshall’s opinion declaring that Marbury had a right to receive his commission from Madison, Jefferson did not object to the opinion’s argument that the Supreme Court could declare an act of Congress unconstitutional and therefore void.

Perhaps that is because Marshall did not declare the Court supreme over the other branches in its interpretation of the Constitution. In Marshall’s view, declaring a law “void” simply meant that it did not operate in a federal court; so in this case, the Supreme Court could not follow Section 13, which Marshall interpreted as unconstitutionally giving the Court original jurisdiction to issue a writ of mandamus to executive officials like Madison. Marshall did not say that the Court’s constitutional interpretation bound the other branches; he simply denied that the other branches’ interpretation bound the Court. It had the power to interpret the Supreme Law of the land for itself in order to decide the legal case in front of it.

So why then was Marbury v. Madison so important? It established the Supreme Court as a politically and constitutionally independent branch of the federal government, which was by no means clear in the early days of the Republic. In 1803, the Supreme Court was a weak institution facing great political pressure from the High Federalists on one side (who wanted the Court to assert its authority and embarrass Jefferson politically by forcing him to give Marbury his commission) and the victorious Republicans on the other side (who wanted Jefferson to refuse to comply and thus weaken the federal judiciary in favor of state courts). Marshall skillfully avoided both extremes: he pleased the Federalists by declaring that Madison owed Marbury his commission, but he avoided a unwinnable confrontation with Jefferson by saying that the Court could not legally issue the order to Madison. Instead of using the case to establish the practice of judicial review, Marshall articulated the doctrine of judicial review to decide the case in a way that protected and strengthened the independence of the federal judiciary, which he believed to be essential for a national republic governed by the rule of law and respect for the rights of individuals.

Jeffrey Sikkenga, Associate Professor of Political Science, Ashland University

Julia Fuette places a capstone on her education

Writing her capstone project, Julia Rae Fuette wanted to synthesize the most important concepts she’d learned in her coursework as a master’s student in American history and government. At the same time she wanted to design a project that she could put directly to use in her teaching at Cornerstone Christian School in Wildomar, California, a community in California’s southern central valley. At this small K-12 school, Fuette is chair of the history and English departments and teaches a range of high school courses, including American history, American government, American literature, and AP US history.

Fuette selected a theme that she could follow from the Founding to the Civil War. She wrote a 115-page narrative of six different moments in American history when the Constitution’s tacit allowance of slavery in the new American republic became a point of contention in American political life. Each “moment” was defined by primary documents that show the Founders and their successors struggling to reconcile their quest for liberty with the shameful fact of their country’s acceptance of slave labor.

Then she designed seven lesson plans, so that her students, too, might explore those six moments through original documents, after first considering short meditations by Founder John Jay and Civil War leader Abraham Lincoln that set the context for the entire story. In December, her capstone was honored with the Chairman’s award.

Fuette’s advisor, Professor Pete Myers, calls her capstone project “a remarkably well conceived, well researched, and well executed work. Its narrative component tells the complicated, vitally important story of slavery and the Constitution briskly, clearly, and fairly, and her series of accompanying lesson plans should serve her for years to come as a small treasure of pedagogical resources.”

“My work in the master’s program at Ashland taught me to focus on thematic-based teaching,” Fuette said. “Ashbrook’s TeachingAmericanHistory.org website opened my eyes to the wealth of primary sources I could share with my students. This helped me to pull away from the textbook, which simply bombards students with names, dates and facts.”

Fuette had nearly completed another Masters in history at California State University in Long Beach when she found the Ashland University program. She had earned 30 credits at Cal State, but hit a snag when advisors rejected her proposals for a thesis. She enjoyed the three summers she spent in Ashland immersing herself in study of primary sources. In contrast to the focus on historiography at Cal State, which elevates the arguments among contemporary historians, Ashbrook’s program invites one into the minds of American statesmen by asking students to read the documents they wrote while arguing for principles, forging compromises, and shaping law and policy.

“Today, the Constitution and the Declaration provide the themes I use to teach American history. I was not taught that at Cal State.” In government class, Fuette’s students spend a semester going through the first three articles of the Constitution, reading excerpts from “three quarters of the Federalist papers to understand the design of our government. I would never have attempted this if it hadn’t been for the Ashbrook program,” Fuette says.

“From Fuette’s example and those of similarly gifted teachers we are fortunate to assist,” Professor Myers says, he and others who commit their energies to the program “find encouragement in the knowledge that secondary school students in at least some parts of the nation are yet receiving able instruction in the principles and statecraft of the Founders.”)