1. the Creation of Judicial Review
Marbury v. Madison
&
the Creation of Judicial Review

2. The Players William Marbury Federalist John Marshall Federalist
John Adam’s “Midnight” appointment
as Justice of the Peace
John Marshall
Federalist
John Adam’s Secretary of State
&
Chief Justice of the Supreme Court
John Adams
Federalist
Second President of the United States
James Madison
Democratic-Republican
Jefferson’s new Secretary of State
Thomas Jefferson
Democratic-Republican
The New President
“President Elect Jefferson”

3. 1. Adams is voted out of office in the election of 1800
set-up to
the
case
2. During his “lame duck” period, Adams
appoints William Marbury to be a justice of the peace
3. Marshall fails to deliver the appointment
4. Jefferson comes into office with Madison as Secretary of State
5. Jefferson orders Madison not to deliver the appointment
6. Marbury takes Madison directly to the Supreme Court to force
him to deliver the appointment (writ of mandamus).
Adams
Marshall
Marbury
Madison
Jefferson

4. Why did Marbury go directly to the Supreme Court?
Judiciary Act of 1789 says: [The Supreme Court] shall have power to issue writs of prohibition to the district courts and writs of mandamus to … persons holding office, under the authority of the United States.
Supreme Court
In most cases, one
must come to the
Supreme Court through a
process of appeals
(appellate jurisdiction)
Federal Appeals Court
This gave the Supreme Court original
jurisdiction over cases involving mandamus
and persons of office.
Local Court
Adams
Marshall
Marbury
Madison
Jefferson

5. Why did Marbury go directly to the Supreme Court?
Judiciary Act of 1789 says: [The Supreme Court] shall have power to issue writs of prohibition to the district courts and writs of mandamus to … persons holding office, under the authority of the United States.
The Constitution says: In all the other
Cases before mentioned, the supreme
Court shall have appellate jurisdiction.
Original Jurisdiction vs Appellate Jurisdiction
The question to be answered…
Does Article III of the Constitution create a
"floor" for original jurisdiction, which Congress
can add to, or does it create an exhaustive list
that Congress can't modify at all?
Future acts of Congress: Cases M,N,O,P
Judiciary Act 1789: Cases X,Y,Z
Constitution: Cases A,B,C

6. Marshall’s Decision Constitution: Cases A,B,C
Marbury deserves the appointment
(Shame on you Jefferson and Democratic Republicans)
2. But I cannot force Madison to deliver the appointment
(Makes the Democratic Republicans happy)
3. I don’t even have the right to hear this case, in fact, the Judiciary Act
is in violation of the Constitution.
The Question
Marshall’s Reply
Future acts of Congress: Cases M,N,O,P
Does Article III of the Constitution create a
"floor" for original jurisdiction, which Congress
can add to, or does it create an exhaustive list
that Congress can't modify at all?
Article III is not a “floor”, but rather
a comprehensive list. If its not on
the list, it violates the Constitution.
Judiciary Act 1789: Cases X,Y,Z
Constitution: Cases A,B,C

7. Marshall’s Power Trade-off
Gives up
But Gains
Future acts of Congress: Cases M,N,O,P
The power to overturn/void
laws passed by Congress and
signed by the President
Judiciary Act 1789: Cases X,Y,Z
Constitution: Cases A,B,C
Which is greater?

8. Jefferson’s Dilemma Jefferson
1. Allowing the Supreme Court to take this much power is frightening.
2. But if I protest the ruling, I have to allow the appointment of Marbury,
a Federalist Judge, and risk looking like a fool in front of the entire country.
Jefferson
3. Therefore, I do nothing. I must allow Judicial Review.

9. Judicial Review ? “So, if a law be in opposition to the
Judiciary Act
of 1789:
Cases X,Y,Z
“So, if a law be in opposition to the
Constitution, the court must determine
which of these conflicting rules governs
the case. This is of the very essence of
judicial duty.”
“[T]he courts are to regard the
Constitution, [because] the Constitution is
superior to any ordinary act of the
legislature.”
Constitution
Future act
of Congress ?
Future act
of Congress
Future act
of Congress