THE SUPREME COURT’S AUTHORITY

ii. At odds with Constitution: However, Marshall concluded, this grant of jurisdiction was in conflict with Article III, §2, of the Constitution, which grants the Supreme Court original jurisdiction only “[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” Since issuance of mandamus is not among the types of cases as to which original jurisdiction is conferred on the Supreme Court, Marshall held, the congressional statute was at odds with the Constitution.

d. Supremacy of Constitution: This brought Marshall to the holding for which Marbury v. Madison is principally known today. If the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it. Therefore, Marshall concluded, the requested writ of mandamus could not be issued. In reaching this conclusion, Marshall made two interlocking arguments:

i. Constitution is paramount: First, the very purpose of a written constitution is to establish a fundamental and paramount law. It follows from this that any act of the legislature repugnant to the Constitution must be void.

ii. Who interprets: Second, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” That is, it is the court, not the legislature, which must make the determination whether, in a particular case, an act of Congress is in conflict with the Constitution. To deny the permissibility of judicial review of the constitutionality of a congressional statute would be to say that the courts “must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions.”

4. Criticism of Marbury: Because of its key importance, Marbury v. Madison has been subject to a huge amount of analysis and criticism. Only one of these lines of criticism is of interest to us here.

a. Who determines constitutionality: Most critics are willing to concede Step One of the two arguments above, i.e., that the Constitution is superior to statutes and that where there is a conflict, the Constitution must be respected. But Step Two is what all the shouting is about: the critics argue that nowhere in the Constitution is it stated that the courts, not Congress, ought to decide whether a given statute does in fact conflict with the Constitution.

i. Congress could decide: Thus it is possible to imagine a system in which we would still have our written Constitution, acknowledged to be the supreme law of the land, but in which Congress (not the courts) would have the final say in interpreting that Constitution. See Tribe, p. 25.