The Constitution never says in so many words that courts may strike down laws. That power, judicial review, was explained by Alexander Hamilton in Federalist No. 78 and put into practice by Chief Justice John Marshall in Marbury v. Madison (1803). You met Marshall in the Marshall Court; here is the case step by step.
Why it works
Marshall asked three questions. Does Marbury have a right to his commission? Yes. Do the laws give him a remedy? Yes. Can this Court issue the order? No, because Section 13 tried to give the Supreme Court original jurisdiction that Article III did not give it, and a law that conflicts with the Constitution is void. In a famous line, Marshall wrote that "it is emphatically the province and duty of the judicial department to say what the law is." The ruling was clever politics too: Jefferson's side won the case, but the Court gained a far larger power.
Key idea
In Marbury v. Madison (1803) the Court held part of the Judiciary Act of 1789 unconstitutional, establishing judicial review: courts may refuse to enforce laws that conflict with the Constitution.
Worked example: Who won?
Did William Marbury get his job?
- The Court said Marbury had a right to the commission.
- But it held that it had no power to order Madison to deliver it, because the law giving that power was unconstitutional.
- So no order was issued.
Answer: No. He never became a justice of the peace, but the Court gained the power of judicial review.
Worked example: Applying the idea
Congress passes a law saying the Supreme Court must hear every traffic case first. What would Marbury suggest?
- Article III lists the Supreme Court's original jurisdiction: cases involving ambassadors and those in which a state is a party.
- Congress cannot enlarge that list by ordinary law.
- A court would refuse to apply the law.
Answer: The law would be unconstitutional, as Section 13 was in Marbury.
Common mistake
Thinking Marbury won his job, or that Marbury invented a power the founders never discussed. He lost, and the idea of judicial review was argued at the founding: Hamilton wrote in Federalist No. 78 that courts must prefer the Constitution to a conflicting law, while the Anti-Federalist Brutus warned that judges would be too powerful.