had stepped down as Adams’s secretary of state only to become chief justice of the Supreme Court. Marshall faced a dilemma: If he ordered the commissions delivered, the new secretary of state (Madison) could simply refuse to deliver them—and the Court had no way to compel action, because it had no police force. At the same time, if Marshall simply allowed the new administration to do as it wished, the Court’s power would be severely eroded. M ARSHALL ’ S D ECISION Marshall masterfully fashioned his decision. On the one hand, he enlarged the power of the Supreme Court by affirming the Court’s power of judicial review. He stated, “It is emphatically the province and duty of the Judicial Department to say what the law is. . . . If two laws conflict with each other, the courts must decide on the operation of each. . . . So if the law be in opposition to the Constitution . . . [t]he Court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.” On the other hand, his decision did not require anyone to do anything. He stated that the highest court did not have the power to issue a writ of mandamus in this particular case. Marshall pointed out that although the Judiciary Act of 1789 specified that the Supreme Court could issue writs of mandamus as part of its original jurisdiction, Article III of the Constitution, which spelled out the Court’s original jurisdiction, did not mention writs of mandamus . Because Congress did not have the right to expand the Supreme Court’s jurisdiction, this section of the Judiciary Act of 1789 was unconstitutional—and thus void. The decision still stands today as a judicial and political masterpiece. A PPLICATION TO T ODAY ’ S W ORLD
26 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW , ELEVENTH EDITION Since the Marbury v. Madison decision, the power of judicial review has remained unchallenged. Today, this power is exercised by both federal and state courts. For example, as your students will read in Chapter 4, several of the laws that Congress has passed in an attempt to protect minors from Internet pornography have been held unconstitutional by the courts. If the courts did not have the power of judicial review, the constitutionality of these acts of Congress could not be challenged in court —a congressional statute would remain law until changed by Congress. Because of the importance of Marbury v. Madison in our legal system, the courts of other countries that have adopted a constitutional democracy often cite this decision as a justification for judicial review.
- Fall '09
- Business Law, .........