Marbury v. Madison: The Beginnings of Judicial Review

Part 3: History in the Making

Now it's important to remember that John Marshall was a Federalist and that things in the Judicial Branch were a lot more political than they are now. Marshall wanted to support Adams, his fellow Federalist, but he had to follow the law. Or did he?

One of the things that the new Congress, controlled by Jefferson's Democratic-Republican party, did was pass the Judiciary Act of 1802, which reversed the Federalist-approved Judiciary Act of 1801, turning the clock back to 1789.

Marshall and the rest of the Supreme Court decided that the power to deliver commissions to judges, since it was part of the Judiciary Act of 1789 and not part of the Constitution itself, was in conflict with the Constitution and, therefore, illegal. Further, the entire Judiciary Act of 1789 was illegal because it gave to the Judicial Branch powers not granted to it by the Constitution.

So, it appears that Marshall sided with his political enemies, right? Marbury, a Federalist, didn't get to be justice of the peace in the District of Columbia. Adams was probably quite angry because his commission was denied. Jefferson and Madison were probably quite happy because they got to name their own friendly justice of the peace.

But Marshall gave to the Supreme Court a whole new power: the power to throw out laws of Congress. So, no matter how many laws Thomas Jefferson and his Democratic-Republicans passed and made into law, the Supreme Court always had the ultimate check on that legislative and executive power. John Marshall, in appearing to lose the political battle, won the political war.

First page > John Marshall and the Law > Page 1, 2, 3

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David White