1. Judicial Review is established.
Marbury vs. Madison
Judicial Review is established.

2. Presidential Election of 1800
Thomas Jefferson (Republican party) defeats John Adams (Federalist party) in the presidential election of 1800.
Adams’ last day in office is March 3, 1801.

3. Night of March 3, 1801:
Adams issues 62 commissions appointing “midnight justices” at 9:00 pm. Senate confirms.
What political party do you think the judges Adams appointed belonged to? Why did he do this?
If he appointed as many Federalist judges as possible, Adams felt it would counteract Jefferson’s Republican policies.

4. So Adams gave his secretary of state, John Marshall, the position of Chief Justice of the Supreme Court.
Adams signed the other commissions & turned them over to Marshall to deliver the rest of them.
But Marshall did not have time to seal & send out all of the commissions. Instead, he left a few of them on his desk.

5. March 4, 1801:
Jefferson learns of appointments: “an outrage on decency” and “personally unkind.”
Jefferson’s new Secretary of State, James Madison, was left with the task of delivering the rest of the commissions.
But Jefferson angrily orders the remaining commissions withheld.
A man named William Marbury is one of the men who expected to receive his commission, but did not get it.

6. So, Marbury sues and appeals to the Supreme Court to get Madison to award him the position.
Thus, the court case titled: Marbury v. Madison (1803)
William Marbury, along with 2 others, requests the Supreme Court to order Madison to distribute the commissions.

7. The Court is empowered by Congress to issue a writ of mandamus
Writ of mandamus = Supreme Court order directing an official to perform a duty in any court case
This is a law that can be found in Section 13 of the Judiciary Act of 1789

8. What is the Supreme Court’s dilemma?
If the Court issues the writ, Madison & Jefferson would ignore it
This would be damaging to the Supreme Court’s reputation - loss of power & prestige
If they do not issue the writ, the judges would be accused of conspiracy
John Marshall realizes that this is a conflict of interest, on his part

9. What would you do?

10. The Verdict (It’s a long one):
Marbury was entitled to his commission & Madison should have delivered it to him.
BUT:
But according to Article III of the Constitution, the Supreme Court has original jurisdiction of a case only when an ambassador or foreign minister is involved

11. Thus, Marbury cannot receive his commission for the following reasons:
Marbury is not an ambassador or a foreign minister.
The Supreme Court cannot even issue a writ of mandamus in Marbury’s case because it would violate the Constitution.
Thus, Section 13 of the Judiciary Act of 1789 is unconstitutional.

12. It was a brilliant move.
Marshall effectively posed the question: Should the Supreme Court enforce an unconstitutional law? Of course not.
Marshall by-passed the whole Federalist-Republican issue while at the same time giving more powers to the Supreme Court.

13. Lasting Impact of Marbury vs. Madison (1803)
This is the first time the Supreme Court overturns an act of Congress.
Checks & balances in action!
Judicial Review is established - Supreme Court’s ability to declare a law or act unconstitutional

14. Judicial Review is one of the informal ways the Constitution can be changed
Judicial Review does not amend the Constitution, but it does change the way it is interpreted.

15. Another way the Constitution can be informally amended:
The elastic clause aka “Necessary and proper”
Says that Congress can do anything necessary and proper to carry out the expressed powers
Example: Used in expanding the role of Congress in interstate commerce. Due to the elastic clause, Congress could regular anything that crosses state borders