Living Democracy

By Don Gillette

Article III section 2 of the U.S. Constitution does not give the Supreme Court explicit authority to declare laws and governmental action unconstitutional.

The Judiciary Act of 1789, passed by the first U.S. Congress, established the structure and jurisdiction of the federal court system. One specific part, Section 13, became the center of a legal challenge that ultimately defined the authority of the Supreme Court. Section 13 of the Judiciary Act of 1789 outlined the Supreme Court’s jurisdiction and its authority to hear cases. The act specified that the Supreme Court could review rulings from federal circuit courts and state courts when those decisions involved questions of federal law or the U.S. Constitution.

The powers Congress granted in Section 13 created a direct conflict with the U.S. Constitution. Article III of the Constitution defines the judicial power of the United States, vesting it in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

It also lists the few types of cases where the Supreme Court has original jurisdiction. These cases are limited to those “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.”

The Constitution does not include the power to hear cases requesting a writ of mandamus (a court order directing a government official to carry out a specific legal act).

By passing Section 13, Congress attempted to add to the Supreme Court’s original jurisdiction with a power not enumerated in the Constitution.

The conflict came to a head in the 1803 case of Marbury v. Madison. William Marbury had been appointed a justice of the peace by the outgoing President John Adams but was denied his commission by the new Secretary of State, James Madison.

Marbury sued directly in the Supreme Court, asking for a writ of mandamus to force Madison to deliver the commission, basing his claim on the authority granted by Section 13.

Chief Justice John Marshall, writing for the Court, first determined that Marbury was entitled to his commission and that the law should provide a remedy. He then addressed whether the Supreme Court had the authority to issue that remedy. Chief Justice Marshall, in writing the Court’s ruling, concluded that Section 13 of the Judiciary Act did grant the Court the power to issue such a writ. Marshall then compared Section 13 to Article III of the Constitution.

He determined that giving the Supreme Court original jurisdiction in this kind of case was an unconstitutional extension of its authority, so he ruled that part of Section 13 invalid.

Marshall reasoned that the purpose of a written constitution is to form a paramount law, and any legislative act contrary to it must be invalid.

He also stated, “It is emphatically the province and duty of the judicial department to say what the law is,” establishing the judiciary as the interpreter of the Constitution.

By striking down a part of a federal law, the Supreme Court’s decision in Marbury v. Madison established the doctrine of judicial review.

This principle gives federal courts the power to examine acts of the other branches to determine if they violate the Constitution. This ruling elevated the Judiciary’s authority to that of the Executive and Legislative branches of government.