Why Marbury v. Madison Still Shapes Constitutional Power

A delivered commission goes missing, a new Chief Justice takes the bench, and a dry jurisdictional dispute turns into a lodestar for American constitutional law. We dive into Marbury v. Madison to unpack what John Marshall actually did: not conjure judicial review out of thin air, but clarify why a written Constitution demands an independent check when statutes collide with higher law.

We walk through the case’s colorful backstory to set the stage, then focus on the heart of the opinion—constitutional supremacy and the judiciary’s limited but essential role. Marshall’s choice is stark: either the Constitution is superior law or Congress can change foundational rules by ordinary legislation. From that premise flows a judicial duty anchored in the oath, constrained to real “cases or controversies,” and aimed at applying the law faithfully rather than issuing political advice. Along the way, we connect the dots to Federalist 78, the ratifying conventions, and Anti-Federalist critiques like Brutus, showing how review was expected even before Marbury gave it durable language.

We also take on the tired activism-versus-restraint frame. If “restraint” means leaving unconstitutional laws in place, it betrays the very supremacy Marshall defended. The sharper question is fidelity: Did the court get the Constitution right, using principled methods and respecting institutional limits? Seen through that lens, Marbury becomes a case study in judicial responsibility—neither power grab nor passivity, but a disciplined insistence that the Constitution is law, not aspiration.

If you enjoy constitutional deep dives with clear takeaways you can use in class, practice, or civic life, follow the show, share this episode with a friend, and leave a review with your biggest question about judicial review.

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Chapters

• 1:34 Kicking Off The Supreme Court Series
• 2:16 The Backstory Of Marbury v. Madison
• 4:06 From Case Facts To Judicial Review
• 8:16 Marshall’s Argument For Constitutional Supremacy
• 12:46 Is Judicial Review New Or Expected

Transcript

SPEAKER_01: 0:48

We are starting our Supreme Court cases kind of segment here. And we really stuck with the Supreme Court cases that are required for the AP government and politics test. So this first one is Marbury versus Madison. And I would be lying. I wouldn't say that this is episode 104. This is the one I'm looking forward to most because this is kind of a spirited debate between Professor Bienberg and I, me coming from the teacher AP Gov side, him coming from the constitutional law side. So, Dr. Byenberg, Marbury versus Madison, 1803, why do we care about this Supreme Court case at all from 1803?

SPEAKER_00: 1:30

So one thing that is fun, but is that it has it has a fun backstory. And you can go into that effectively. There's a some uh Marbury is supposed to be getting a commission to serve as a minor official. It doesn't happen because John Marshall is supposed to be basically delivering these things, and then it doesn't get delivered, and then he gets appointed to the Supreme Court and he doesn't recuse himself. So there's all sorts of really fun backstory to the case. I will say one reason that I don't care about this case, and when I edit it, is the actual minutia of the way that the Judiciary Act of 1789, et cetera, is interpreted like the actual what the case is about, nobody really cares at this point. What makes Marbury v. Madison important and why I assign, for example, a decently long uh edit of the second part of it, not the actual Judiciary Act, Marbury stuff, uh, is that it lays out, I think, along with Federalist 78, the clearest and most thoughtful exposition of what judicial review is and what it's supposed to be doing. So this is not the first case, and this is where I maybe anticipate the prickliness. It's not the first case that sort of events, hallucinates. Judicial review just comes out of the sky from John Marshall. They've talked about it in the ratifying conventions. Brutus and the Publius in the Federalist papers say it's in it and that's great, or it's in it and it's bad, but they all think it's in it. There are several cases before Marbury v. Madison where the court says, is this law constitutional or not? And they keep saying, yes. So Marbury is the first case where they say, no, this law that we've talked about, the constitutionality is indeed unconstitutional. And since they're sort of pulling that trigger and making that big decision, they then feel obligated to go and explain judicial review in a way that they hadn't in those earlier, yep, it passes, yep, it passes. So in this case, they're saying, no, this fails judicial review, this particular act here. And so we need to go through uh and explain it. And as we'll read a couple of the sections, the language from that, since I have mixed views on some of Marshall's legal writings, but I think the stuff in Marbury we'll talk about when we get to the Commerce Clause cases. But Marshall goes through and says, sort of, what's the purpose of this, right? The powers of the legislature, the constitution, are defined and limited. And that those limits may not be mistaken, the constitution is written. To what purpose are powers limited? And what purpose is this limitation committed to writing, if these limits may be at any time passed by those who are to be restrained? And he goes on and says, effectively, somebody needs to be the one checking and making sure that the Constitution is ultimately supreme rather than Congress basically saying, we have power to do that. How do we know? Because we just passed it, right? So he's arguing that you need to have this independent adjudicator. He goes on to say, right, what do we have? The Constitution is either a superior or paramount law, unchangeable by ordinary means, or it's on a level with ordinary legislative acts, and like other acts, it is alterable when the legislature shall please to alter it. What he's saying there is we really have two choices as we think about what the Constitution does. We can either be like England, where the Parliament can just simply pass any new law, even changing very foundational fundamental policies and even institutional design, or we think the Constitution is doing something special and separate and higher. Uh, and he says, between these, there's no middle ground, right? Either we're enforcing the Constitution or Congress can change its power, can change its own powers. And he says, look, this is effectively what our job is. He doesn't say judicial review means that the courts are the only ones who care about the Constitution. He's not establishing judicial supremacy, but he is saying it is our job when we get a case like Marbury versus Madison here. We have to make sure we're enforcing the Constitution when we uh adjudicate that case. Uh and he goes on to say, look, part of this also is because we took an oath. We took an oath to support the Constitution. And if we were just sort of pushing stuff through that was unconstitutional, we would be violating that oath. He does go on to say toward the end, too, and this is often easy to lose. He says, when we're saying what is supreme law of the land, the constitution itself is first mentioned. And then he says, and not the laws of the U.S. generally, but only those which shall be made in pursuance of the Constitution have that rank. So we talked about this with the supremacy clause in an earlier podcast, but he's again reiterating that just because Congress passes it doesn't mean it's supreme. It has to be consistent with the Constitution. And in this case, he thinks it's not. Legal scholars have gone back and forth as to whether that part is correct, whether he actually sort of gets Marbury v. Madison right. But again, Marbury is dead. We don't care. But we do care about his explanation of judicial review, which again is in some ways taking Hamilton's really terrific writings in Federalist 78 and sort of laying them out sort of more thoroughly and systematically.

SPEAKER_01: 6:39

So in the like final opinion, says it is emphatically the province and the duty of the judicial department to say what the law is. Yep. In article article three is really small, like compared to articles one and two, article three doesn't really give us a whole lot. So how does this not establish judicial review?

unknown: 7:01

Right.

SPEAKER_00: 7:02

So the Yeah. So the the question is effectively that well, sort of what the judicial power means. And if you go back and look at historians like Gordon Wood has written some really great stuff on sort of the 1770s and 1780s, arguing that Americans in that time period, 1760s, 70s, and 80s, do increasingly move toward the view that a constitution is a supreme, special, higher form of law rather than just something that's kind of parliament passes that we agree is important. And so if you see elements of this pop up in some of the state constitutional debates, but particularly again in the state ratifying conventions, that the judicial power, that the supremacy of the constitution, right, that the sort of the logic of spelling that out requires judicial review. So this isn't a surprise when this comes through. So it establishes it in the sense that it makes it stronger. We can understand it more comprehensively because it's laid out the case. I mean, the constitution itself doesn't have a political theory thing. Like here's what Montesquieu says about separation of powers, right? So do you understand what the legislative power is, what the executive power is, what the judicial power is, right? So this is sort of the background understandings of what these institutions are supposed to do. And so Marshall is again building off of he's not the first chief justice, right? His predecessor had been basically, you know, taking cases and adjudicating them along these lines. The ratifying conventions do discuss it at some length. And Brutus, who's the most, I think, thoughtful critic of the Constitution, argues judicial review is a thing and it's bad, right? He argues it's a lot, it's the judicial power means this. So yeah, so I guess it doesn't say you know, legislative power isn't defined as the power to make a law, right, in Article I, right? You just sort of know what legislative power is. And so judicial review sort of flowing from judicial power effectively comes from the same thing. Again, there are, as we talked about with judicial review, the podcast session, there are some scholars that basically do think that Marshall sort of invents it. I I literally, I literally cannot understand that argument. Like I've read those books, I've read those, I just don't understand it. If you uh, and I I don't think anybody who's writing today takes that position. It very much is this was clearly understood, uh, this was clearly expected. Some thought it was a feature, some thought it was a bug. Hamilton lays it out against the other defenders of the Constitution lay it out. So you know, the the the stronger version of it that sort of gets retroactively layered onto it, the section you read, it's the province and duty of the judicial department to say what the law is. Marshall doesn't say it is the exclusive province and duty. Like we're the only ones that get to decide everything. We get, and then he goes on to say literally in the next line, those who apply the rule to particular cases must of necessity expound and interpret that rule, right? So he's recognizing that the court is doing this within the context of hearing a case, right? The court just doesn't hear anything random that it's you know annoyed by. There are some state courts that they can offer advisory opinions. But very early on, Washington asks the Supreme Court for legal advice. And they say, bring us a case or a controversy, otherwise go away, right? This is what your attorney general is for. So Marbury Madison does stand for the idea that judicial review is the necessary overturning of unconstitutional laws and executive actions from both the federal government and the state governments, if they're in tension with the constitution. It doesn't invent it and it doesn't claim that it is only the court's job. Uh it's basically the Marbury has more of a redundancy vision that they should all be enforcing the Constitution. Later on in the 1950s, the Supreme Court will expand that and effectively, and then they'll pick it up again in the 90s and sort of hint that they're really the only ones that should be definitive in interpreting the Constitution. That's really one of the major controversial, I think really fun but dicey questions of constitutional law is what is you, what do you do if you think and Lincoln gets involved in this too, right? What do you do if the court gets it wrong, though? That's a really complicated constitutional question. But Marshall isn't making the claim to say we're the only ones, right? Because at the end of the day, strictly speaking, the only people who care about Marbury Madison are Marbury and Madison, or they're the parties to the case. So that has binding, it has precedent in the sense that it lays out legal arguments and judicial reviews. So the lower courts can then deal with it. Or the next time a similar case comes up, the court can just say, we already decided that one with a precedent. But so Marbury is super important. I don't mean to marginalize that, but I do feel ethically obligated to push back on the it invented it. It established it in the sense of making it strong. It doesn't establish it in the sense of making it come from nowhere.

SPEAKER_01: 12:15

So in these kind of political discussions about the Supreme Court's power, this is like the debate over different interpretations of judicial review. And we kind of talked about it in our interpretations podcast. But judicial activism is asserting that judicial review allows the courts to overturn current constitutional and case precedents or invalidate legislative or executive acts, whereas judicial restraint asserts that judicial review should be constrained to decisions that adhere to current constitutional case precedents. Is there obvious usage of this in the 20th or 21st century?

SPEAKER_00: 12:55

Yeah, just I think it's worth pausing and kind of reiterating, like we talked about in the previous podcast, the sort of judicial review versus judicial restraint activism effectively just says there's a preference for status quo bias, right? So whether that status quo is correct, whether that's consistent with precedent, whether that's consistent with the constitution, it just basically says, like, we're not gonna, we're not gonna act. So we'll leave an unconstitutional law going, or we won't overturn a precedent that we think is a mistake. So, you know, in the in the 20th century, those terms got sort of picked up as ways to criticize the court, particularly for people that thought that what the court was doing was getting it wrong in judicial review. So they would attack it as judicial activist. But you know, Marshall in this case, for example, is this an activist opinion for John Marshall to be striking down something that's unconstitutional? Well, if you think that that's the court's job as part of judicial review and judicial power, I guess it's activist in the sense, but it's seemingly the court doing its job, which is why those terms have fallen out of favor for not debating are they acting or not acting, but are they acting faithfully or not acting? Because inactivity, like if Marshall had said this law is unconstitutional, but it's fine, right? There's a way in which, strictly speaking, that looks like the way the term judicial restraint was used in the 20th century. But we would say it is failing to, as Marshall lays out, you know, lay out what the law is to enforce the constitution as superior and paramount law, which is why, again, most folks today will say, did the court get it right? And then they'll say, like, based on originalism, based on the doctrine, if we think the doctrine is right, rather than was the court activist or restrained. So there's an element of the courts should be restrained within their role, but their role is enforcing the constitution, not just protecting the status quo.

SPEAKER_01: 15:03

Awesome. Well, thank you so much. I look forward to more cases with you.