Nahmod Law

Teaching Marbury v. Madison

As those of us who teach constitutional law know very well, there are some conventional lessons to be learned from Marbury v. Madison, 5 U.S. 137 (1803). Among them are the following four.

First: the order in which Marshall analyzed the relevant issues so as to declare the Court’s power of judicial review against the President and Congress, while at the same time avoiding a clash with President Jefferson by ultimately holding that the Court did not have subject matter jurisdiction.

Second: the way in which Marshall could have avoided the power of judicial review issue altogether by holding that physical delivery of Marbury’s commission was required for the appointment to have any legal effect. He could have avoided the issue in another way: by plausibly interpreting the Judiciary Act of 1789 as conferring only appellate mandamus jurisdiction on the Supreme Court. He obviously did not want to do either. Read the rest of this entry »