September 2, 2021
This is part 5 in Sutherland’s new series highlighting primary sources from American history in the hopes of enriching civics education. To help teachers and students identify where to start with primary sources, this series looks at a limited selection that we believe are indispensable to understanding our nation’s government, history, and current circumstances. During this time, when much is being said about America’s history, our hope is that this series can encourage the use of primary sources to help students find context and understanding.
What is this primary source?
Marbury v. Madison is the United States Supreme Court case decided in 1803, which famously established the concept called judicial review. Just as it sounds, judicial review is the process by which the judiciary (and in this case the Supreme Court) can review actions of the legislative or executive branches to see if their actions are constitutional.
Chief Justice John Marshall said at the time, “It is emphatically the province and duty of the judicial department to say what the law is.” And the law is based on what is constitutional. Thus, while a legislative body or executive officer can make law or policy, the judiciary has the power to say if it is constitutional and, ultimately, whether it remains active law.
Because Marbury v. Madison established this enduring principle of judicial review, it is widely considered the most important Supreme Court case in American law.
Where did it come from in our history?
This case sprang from a heated presidential election. Basically, Thomas Jefferson (a Republican) beat incumbent John Adams (a Federalist). Right before Jefferson took office, the Federalist-controlled Congress passed a law that would have given Adams the opportunity to appoint 42 justices of the peace, one of which was William Marbury.
Instead, when Jefferson won (somewhat shockingly) and took office, he ordered James Madison, his secretary of state, not to deliver Marbury’s commission. In short, he was undermining Adams and the Federalist hope of packing the courts with Federalists.
In response to getting jilted in this way, Marbury asked the Supreme Court to issue a writ of mandamus – an order from a higher court to lower court to do something specific it is supposed to do by law – to compel Madison to deliver the commission to him. He did so pursuant to a law passed by Congress that attempted to give the court this power. The court, however, determined it was not constitutional for it to issue a writ of mandamus.
So while the court believed Marbury should have received his commission, justices did not believe it was constitutional for a law to give them the power to compel it. Through this unanimous holding, the court established its ability to review the constitutionality of a law and thus helped define judicial review in America forever.
Why is Marbury v. Madison an important element of civics and history education?
Aside from the fact that Marbury v. Madison is broadly studied for its impact in establishing judicial review – making it a fundamental element in American governance – students should understand the principle it illustrates so they can identify it at work today.
For example, the controversy in Utah over mask mandates demonstrates the role and power of judicial review at the state level. Recently, a group of Utah parents with immunocompromised children decided to sue the state over a law that bans local school districts from enacting mask mandates. These parents claim the law is unconstitutional because it interferes with the state constitution’s guarantee of an education and discriminates against children with disabilities to obtain that guarantee. Of course, it will then be up to the courts to review the constitutionality of the law banning districts from making mask mandates. Without knowledge about how and why these parents can challenge this law, students may not understand an important element to this current, timely civic debate.
Furthermore, students may find it useful to discuss the line between judicial review and judicial activism, which is when the court oversteps its judiciary role to the point of “legislating from the bench.” To have these discussions, students need the basics and the foundation of legal thought in our nation, and Marbury v. Madison is just that.
The full text of the case can be found here.
Even though the Supreme Court does not resolve a large proportion of the cases that are presented to it, the decisions it does issue reverberate to affect many other disputes through the principle of precedent. Its decisions on a handful of cases can, over time, expand and contract the rights of the entire nation.
For many voters, 2020 may have been their first experience with voting by mail. However, VBM in both the United States and Utah specifically is not new. In America, VBM has a history that spans centuries.
The judiciary branch is designed as a responsive, not proactive, branch of government. The court can’t tell Congress not to pass an unconstitutional law or tell the president not to issue a legally invalid order. It must wait until after those actions take effect and someone challenges them.