Faith and legal systems

Marbury v. Madison
and the Establishment
of Judicial Autonomy1

WILLIAM E. NELSON

My topic is Marbury v. Madison,2 the 1803 Supreme Court case that we understand to be
the progenitor of judicial review—the doctrine allowing courts to hold acts of Congress uncon-
stitutional. My claim is that Marbury was actually about something larger. It was about main-
taining a balance between two concepts, democracy—the idea expressed by Lincoln in the Get-
tysburg Address of government of the people, by the people, and for the people;3 and the rule of
law—the idea expressed by John Adams in the Massachusetts Constitution of 1780 that ours is
a government of laws and not of men.4

Virtually all Americans believe in both
concepts—one, that the people make the law,
and two, that law somehow transcends mere
human will and incorporates ultimate princi-
ples of right. So defined, however, the two con-
cepts are potentially in tension with each other.
My claim this evening will be that for nearly
two centuries, Marbury v. Madison provided a
set of distinctions that enabled Americans to
keep both the concept of democracy and the
concept of the rule of law at the base of their
constitutional theory.

This claim, in turn, has three compo-
nents. First, we need to understand that John
Marshall, by deciding Marbury, did not direct
how we today should resolve the tensions we

face between democracy and the rule of law.
He couldn’t possibly have done that because
he, like us, could not predict what would hap-
pen two centuries in the future. All he could
know—all we can know—is what has hap-
pened in the past; all he could do—all we can
do—is use knowledge of the past to try to con-
trol events in the present. The future, for Mar-
shall like us, was beyond both knowledge and
control.

Thus, if we want to appreciate the insight
that Marshall’s opinion in Marbury v. Madi-
son can provide us, we need to proceed to the
second component of my claim—we need to
understand what Marbury meant to Marshall.
Only then can we turn to the third compo-

nent—understanding in broad outline how
change that has occurred since Marbury has
partially transformed its meaning, leaving it
both different and the same as the case de-
cided by John Marshall.

It is to the second component—what
Marbury meant in its time—that I now want to
turn. Understanding what Marshall decided in
Marbury requires, in turn, that we begin with
the government, law, and society of eigh-
teenth-century Virginia—where Marshall was
born and raised and from which he derived his
ideas and values. We need to appreciate that
eighteenth-century Virginia, unlike America
today, was not governed by a ubiquitous
bureaucracy with clear chains of command
reaching upward to central political authori-
ties. There were no police, state or local, no
department of motor vehicles, no highway
department, no state education bureaucracy.
There was no colonial equivalent, on any level
of government, of the Internal Revenue Ser-
vice or the Social Security Administration.5

Because there was no modern bureau-
cracy, the judiciary and the officials like sher-
iffs responsible to it were the primary link be-
tween a colony’s central government and its
outlying localities. The judiciary alone could
coerce individuals by punishing crimes and
imposing money judgments. Courts also ap-
portioned and collected taxes, supervised the
construction and maintenance of highways,
issued licenses, regulated licensees’ busi-
nesses, and administered the Poor .6 As
one member of Congress observed in an end-
of-the-century recapitulation, “[o]ther depart-
ments of the Government” may have been
“more splendid,” but only the “courts of jus-
tice [came] home to every man’s habitation.”7

But even though courts possessed vast
jurisdiction, no one believed that judges pos-
sessed policy-making prerogatives of the sort
that we assume Congress and the President
possess today. It was a commonplace, as
Josiah Quincy of Massachusetts argued in
1770, that courts merely dispensed justice ac-
cording to law, which was thought to be

“founded in principles, that are permanent,
uniform and universal.”8 John Adams simi-
larly believed that “every possible Case”
ought to be “settled in a Precedent leav[ing]
nothing, or but little to the arbitrary Will or
uninformed Reason of Prince or Judge.”9

James Otis, Jr., another Massachusetts revolu-
tionary, even argued during the 1760s that
legislation “contrary to eternal truth, equity,
and justice” would be void, since “the su-
preme power in a state . . . [was] jus dicere
only, . . . [while] jus dare, strictly speaking,
belong[ed] only to GOD.”10 Thus, even be-
fore the late eighteenth-century adoption of
written constitutions, arguments were being
made, in the words of a 1775 New York pam-
phlet, that “something must exist in a free
state, which no part of it can be authorised to
alter or destroy.”11

Prior to the American Revolution, few
colonials imagined that social change was
possible and nearly everyone assumed that
life would go on essentially as it had for de-
cades. Society was seen as a stable organism
that grew and maintained itself of its own ac-
cord. It followed from this view of society that
no one in government needed to make choices
about the direction that law, government, and
the society ought to take. Of course, bad peo-
ple might threaten the health and stability of
the organism: foreign monarchs often threat-
ened its destruction by war, and criminals and
other evil people posed menaces to its peace
and stability at home. The king had the duty to
make the decisions needed to protect the
realm from foreign threats, and his courts per-
formed the task of doing justice to malefactors
at home. But doing justice did not entail pol-
icy choice; it necessitated only the enforce-
ment of traditional, customary values, such as
property, stability, community, and morality,
which were embedded deeply within existing
common law.12

It is also essential to emphasize that in
doing justice, courts did not coerce the good
people of a community; on the contrary, they
worked harmoniously with those people to

THE ESTABLISHMENT OF JUDICIAL AUTONOMY 241

protect and defend the embedded values that
most people of the community took for
granted. The judges who directed county- and
colony-wide courts were prominent local and
colonial leaders, but they were leaders who
had power only to guide, not to command. For
juries rather than judges spoke the last word on
law enforcement in nearly all, if not all, of the
eighteenth-century American colonies. Colo-
nial judges could not enter a judgment or im-
pose any but the most trivial of penalties with-
out a jury verdict. And, in the cases in which
they sat, eighteenth-century American juries,
unlike juries today, usually possessed the
power to find both law and fact.13

In American courts of today, judges give
juries charges or instructions on the law, and if
a jury fails to follow its instructions, its verdict,
except for a verdict acquitting a defendant
charged with a crime, will be set aside. Eigh-
teenth-century American judges, in contrast,
often did not give clear instructions. yers
assumed, as did John Adams, that “[t]he gen-
eral Rules of and common Regulations of
Society, under which ordinary Transactions
arrange[d] themselves . . . [were] well enough
known to ordinary Jurors,”14 and thus juries
were directed that, as to many matters, they
“need[ed] no Explanation [since] your Good
Sence & understanding will Direct ye as to
them”15 and that they should “do justice be-
tween the parties not by any quirks of the law
. . . but by common sense as between man and
man.”16 In Virginia, in particular, one com-
mentator who reviewed eighteenth-century
practice observed that there were “numerous
cases” in which the jury “retired without a
word said by the court upon the subject” of the
case.17

Instructions were also ineffective be-
cause they were often contradictory. One po-
tential source of contradiction was counsel,
who on summation could argue the law as
well as the facts. Most confusing of all was
the court’s charge. Nearly every court in eigh-
teenth-century America sat with more than
one judge on the bench, and it appears to have

been the general rule for every judge who was
sitting to deliver a charge if he wished to do
so. Sometimes judges were not unanimous.18

Of course, whenever jurors received con-
flicting instructions, they were left with power
to determine which judge’s interpretation of
the law and the facts was correct. Even when
the court’s instructions were unanimous,
however, juries could not be compelled to ad-
here to them. Once jurors had received evi-
dence on several factual issues and on the par-
ties’ possibly conflicting interpretations of the
law, a court could compel them to decide in
accordance with its view of the case only by
setting aside any verdict contrary either to its
statement of the law or to the evidence. By the
1750s English courts, upon motion of the los-
ing party, would set aside such a verdict and
order a new trial, but eighteenth-century
American jurisdictions did not follow English
practice.19

It accordingly seems safe to conclude that
juries normally had the power to determine
law as well as fact in both civil and criminal
cases. Statements by three of the most eminent
lawyers in late eighteenth-century America—
John Adams, Thomas Jefferson, and John
Jay—buttress this conclusion. In the early
1770s, Adams observed in his diary that it was
“not only . . . [every juror’s] right but his Duty
. . . to find the Verdict according to his own
best Understanding, Judgment and Con-
science, tho in Direct opposition to the Direc-
tion of the Court.”20 In 1781–1782, Thomas
Jefferson painted an equally broad picture of
the power of juries over the law in his Notes on
Virginia. “It is usual for the jurors to decide
the fact, and to refer the law arising on it to the
decision of the judges,” Jefferson wrote. “But
this division of the subject lies with their dis-
cretion only. And if the question relate to any
point of public liberty, or if it be one of those in
which the judges may be suspected of bias, the
jury undertake to decide both law and fact.”21

And, as late as 1793, John Jay, sitting as Chief
Justice of the United States, informed a civil
jury that it had “a right to take upon yourselves

242 JOURNAL OF SUPREME COURT HISTORY

to judge of both, and to determine the law as
well as the fact in controversy.” “[B]oth ob-
jects,” Jay concluded, “are lawfully, within
your power of decision.”22

The power of juries to determine law as
well as fact reveals a great deal about govern-
ment and society in eighteenth-century Amer-
ica. In particular, the power of juries reveals
that government officials simply lacked effec-
tive power to coerce people to obey the law. If
an official failed by himself to coerce a recal-
citrant person, he could not call for the aid of a
substantial body of force other than fellow
members of the community, organized as the
militia; if the militia was on the side of the re-
calcitrant person, it would not, of course, aid
the official. Thus, the only way for officials to
ensure enforcement of the law was to obtain
local community support for the law, and the
best way to obtain that support was to permit
local communities to determine the substance
of the law through legal institutions such as
the jury. In hindsight, this power of local com-
munities to determine the substance of the law
appears quite democratic.23

However, the second reality that the law-
making power of juries reveals is the fixed and
certain nature of the law. If law had been un-
certain and individual jurors had manifested
differing opinions about its substance, it
would have been impossible for jurors to have
decided cases after receiving rudimentary or
conflicting instructions, or even no instruc-
tions at all. The law-finding power of juries
suggests ineluctably that jurors came to court
with shared preconceptions about the sub-
stance of the law.24 This point was explicitly
made in the 1788 Connecticut case of Pettis v.
Warren.25 In a black slave’s suit for freedom,
one juror was challenged for having a pre-ex-
isting opinion “‘that no negro, by the laws of
this state, could be holden a slave.’” Affirming
the trial court’s overruling of the challenge,
the Connecticut supreme court held that “[a]n
opinion formed and declared upon a general
principle of law, does not disqualify a juror to
sit in a cause in which that principle applies.”

Indeed, the court observed that the jurors in
every case could “all be challenged on one
side or the other, if having an opinion of the
law in the case is ground of challenge.” Jurors,
the Connecticut court believed, were “sup-
posed to have opinions of what the law is,”
since they sat as “judges of law as well as
fact.”26

One might infer further that jurors came
to the court with similar preconceptions about
the law, at least as it applied to disputes that
frequently came before them. Indeed, one
cannot escape this inference without abandon-
ing all efforts to understand how eighteenth-
century government functioned. If jurors
came to court with different and possibly con-
flicting opinions about substantive law, one
would expect to find, first, that juries had dif-
ficulty reaching unanimous verdicts and that
mistrials due to hung juries were correspond-
ingly frequent, and second, that different ju-
ries at different times would reach different,
perhaps inconsistent verdicts, thereby making
the law so uncertain and unpredictable that
people could not plan their affairs.27

In fact, no such evidence exists. On the
contrary, the available evidence suggests that
juries had so little difficulty reaching verdicts
that they often heard and decided several cases
a day. No one in the mid-eighteenth century
complained about the inconsistency of jury
verdicts, and as soon as such complaints were
heard in the century’s last decade, the system
of jury law-finding began to disintegrate.28

One final inference must be drawn. We
know that eighteenth-century juries mirrored
the white, male, landholding, and taxpaying
population. It follows that, if jurors shared
similar ideas about the substance of the law,
then a body of shared ideas about law must
have permeated a large segment of the popu-
lation of every territory over which a court
that sat with a jury had jurisdiction. Colonial
government may have been able to derive pol-
icies from and otherwise function on the basis
of those shared values.29

Colonial communities, in short, were si-

THE ESTABLISHMENT OF JUDICIAL AUTONOMY 243

multaneously democratic and governed by
fixed laws. A word must be said about how
such a system of governance was possible.
Those who have lived amidst the twentieth-
century cacophony of conflicting interests
may find it difficult to imagine how a govern-
ment could act only on the basis of shared val-
ues. The eighteenth-century Anglo-American
world, however, was sufficiently different
from our own so that government in that era
might have so functioned.

The key difference was that colonial poli-
tics existed within an established constitu-
tional structure that colonials could not con-
trol. Parliament, in which colonials had no
direct voice, alone possessed the power to de-
cide many fundamental social and economic
issues, and for the first sixty years of the eigh-
teenth century it was willing to abide by deci-
sions reached in the preceding century that
were often favorable to the colonies. Thus,
much of the grist for genuine political conflict
was removed from the realm of imperial poli-
tics; absent a radical restructuring of the
Anglo-American system, there was simply no
point in building a political organization
around the issue of whether, for example, An-
glicans would be tolerated in Massachusetts
or whether Americans would be free to trade
with French Canada without restriction.30

Provincial politics were not radically dif-
ferent. Colonial legislatures were under Amer-
ican control, but they could not effectively
enact legislation that significantly altered the
structure of colonial society, since such legis-
lation would almost always be vetoed by a
colonial governor or by London. As a result,
colonial legislation usually consisted of mere
administration: raising and appropriating
small amounts of tax money, distributing the
even smaller amounts of government largess,
and legislating as necessary to keep the few
governmental institutions functioning. Even
when provincial political conflict occurred, it
rarely involved important social issues.31

The coming of independence, however,
significantly reshaped American politics. In-

dependence introduced a new political style in
stark contrast to the mid-eighteenth-century
style of government by consensus. Over the
course of the next several years, the Continen-
tal Congress had to raise and support an army,
appoint commanding generals, negotiate with
foreign powers, and govern the vast territories
in the trans-Appalachian West that the United
States acquired from Great Britain in the 1783
peace treaty acknowledging American in-
dependence. In performing these tasks, Con-
gress and other national officials had to make
choices among possible policies that were in
conflict with each other—choices that favored
some American interests over others and thus
could not be made on the basis of principles or
values with which nearly everyone agreed.32

These national issues impacted local poli-
tics. Most significant of all were the divisions
in local communities resulting from the Revo-
lutionary struggle itself, as citizens who iden-
tified themselves as Patriots came into conflict
with Loyalists, those who remained commit-
ted to the cause of Parliament and the Crown.
These conflicts sundered communities and
often resulted in the exile of Loyalists and the
confiscation of their properties.33

Little changed with the coming of peace.
In order to obtain independence and secure
British evacuation of all outposts in the newly
recognized American territories, Congress
had agreed in the 1783 treaty that individual
British creditors would suffer no impediments
to the collection of debts owed to them by
Americans. But several states refused to honor
this provision in the treaty and placed various
impediments in the path of British creditors.
Prospective lenders in Great Britain, knowing
they would face future impediments as credi-
tors, responded by tightening credit, while the
British government reacted by refusing to
evacuate outposts in the western portions of
the new United States that the 1783 treaty had
obligated it to surrender. As a result, Ameri-
cans seeking to borrow money found it more
difficult and expensive to do so, and those
seeking to settle or otherwise exploit the West

244 JOURNAL OF SUPREME COURT HISTORY

found the British army and its Indian allies in
their path.34

These actions by several American states,
by British lenders, and by the British govern-
ment created political divisions in local Amer-
ican communities that would endure into the
early nineteenth century. On the one side were
debtors who did not want Congress to interfere
with state policies that made debt collection
more difficult. Pitted against them were pio-
neers who found the British blocking their
westward movement and business entrepre-
neurs seeking to borrow funds to expand their
operations; they wanted a stronger national
Congress that could compel the states to obey
the peace treaty.35

Above all, independence destroyed the
constitutional order that had existed for a cen-
tury in the British North American world. No
longer were fundamental questions such as
the distribution of power among various lev-
els of government, the continuance of re-
ligious establishments, and the freedom of
American merchants to trade abroad resolved
by an imperial law that the colonies had little
direct power to control. Independence com-
pelled Americans to resolve such questions
anew, often on a national rather than a local
basis. Independence meant that newly inde-
pendent Americans, unlike their colonial an-
cestors, would routinely need to make choices
among competing policies and, as a result of
those choices, structure the world in which
they wanted to live. The post-Revolutionary
generation’s grapplings with these questions
portended social discord in both state and na-
tional politics and, during the last two decades
of the eighteenth century, provoked some of
the most vituperative conflict that has ever oc-
curred in American political history.36

The revolutionary struggle and the attain-
ment of independence also transformed Amer-
ican society and politics ideologically. In dis-
carding British rule and reconstituting their
governments, Americans proclaimed that all
law springs from popular will as codified in
legislation. If the people could remake their

government, it followed, the Maryland Jour-
nal declared in 1787, that the law-making
power of the people must be “original, inher-
ent, and unlimited by human authority,”37

while the Connecticut Courant wrote that there
was “an original, underived and incommunica-
ble authority and supremacy in the collective
body of the people to whom all delegated
power must submit and from whom there is no
appeal.”38

This concept of legislation as the creation
of new law by the people or their representa-
tives proved practically significant after inde-
pendence because groups such as religious
dissenters and westward expansionists used it
to promote their interests. Before the Revolu-
tion, policies imposed by London had tended
to restrict westward expansion and to require
that dissenters support established churches.
Once independent Americans could formulate
their own policies, however, both religious
dissenters and westward expansionists cam-
paigned to revise established policies. Legis-
latures frequently responded by changing in-
herited rules and practices, and in the process
changed themselves as well. By enacting new
law, legislatures reinforced the ideology of
popular lawmaking power and forged an ac-
tive, creative legislative process in lieu of one
that had depended on the derivation of rules
from preexisting shared principles.39

This transformation occurred, however, in
a society unprepared to abandon blithely the
pre-Revolutionary ideal that human law must
conform to fundamental principles of divine or
natural law. The older ideal persisted through-
out the late 1770s and the 1780s. Post-Revolu-
tionary Americans continued, in the words of
Alexander Hamilton, to believe in “eternal
principles of social justice”40 and to object to
legislation “founded not upon the principles of
Justice, but upon the Right of the Sword” and
for which “no other Reason [could] be given
. . . than because the Legislature had the Power
and Will to enact such a .”41 Thinkers like
James Madison, arguing at the time of the Con-
stitutional Convention for a congressional

THE ESTABLISHMENT OF JUDICIAL AUTONOMY 245

power to negate state legislation, noted in a let-
ter to George Washington that America needed
“some disinterested & dispassionate umpire”
to control “disputes between different passions
& interests in the State[s].”42

The conflict between advocates of the
people’s transcendent power to make law and
adherents of older notions of the inherent
rightness and immutability of law emerged
with sharp clarity in a series of state-court
cases during the 1780s and 1790s establishing
the doctrine of judicial review. In a New York
case, Rutgers v. Waddington,43 for example,
the “supremacy of the Legislature . . . posi-
tively to enact a law” was pitted against “the
rights of human nature” and the “law of na-
ture.”44 Similarly, in Trevett v. Weeden,45 a
Rhode Island act that penalized without jury
trial anyone who refused to accept the state’s
paper currency was challenged as “contrary to
the laws of nature” and violative of the “fun-
damental right” of “trial by jury.”46

But, as late as the early 1790s, the line be-
tween believers in popular sovereignty and
believers in supreme fixed principles was
rarely so plainly drawn. One could still be-
lieve simultaneously in the people’s power to
make law and in the immutability of the prin-
ciples underlying law. Although it appre-
ciated and accepted popular lawmaking, the
Revolutionary generation did not abandon
older notions that law made by the people
must not violate rights that Americans had
proclaimed immutably theirs in the struggle
with England. New and old ideas coexisted as
the Revolutionary generation, believing in the
people’s inherent goodness, simply assumed
that all laws made by the people would be
consistent with fundamental rights.47

As the 1790s progressed, however, this
ambivalent legal ideology proved merely tran-
sitory and diverged into two clearer, more co-
herent points of view. One sought to resolve
all issues according to the will of the people,
while the other sought to resolve them accord-
ing to fixed principles of law. The appearance
of these competing ideologies was closely re-

lated to the division in American politics in the
1790s between the Federalists, who generally
viewed law as a reflection of fixed and tran-
scendent principles, and the Republicans, who
considered it the embodiment of popular
will.48

Historians generally agree that the first
truly national political organizations arose in
the mid-1790s in response to the French Rev-
olution and the signing of Jay’s Treaty with
Great Britain. These two events forced Amer-
icans to choose sides in the worldwide strug-
gle between Britain and France that began in
1793, and for many the choice posed difficult
ideological issues. Some Americans found
themselves horrified by the excesses of the
French Revolution during the early 1790s and
by its culmination in the politically driven ex-
ecutions of the Reign of Terror; others, while
not approving of the death and violence, re-
mained convinced that the French republican
movement would ultimately warrant Ameri-
can sympathy. Similarly, some thought that
John Jay paid too high a price for British with-
drawal from the Northwest Territory when he
agreed in his treaty to have the federal govern-
ment, in return, pay Revolutionary-era debts
still owed to British creditors.49

The political divisions of the mid-1790s
reflected ideological concerns as well. For ex-
ample, the Federalists saw in Jefferson and the
Republicans many of the threats to religion, to
life, and to property that they found so horrify-
ing in French revolutionaries. The election of
1800, according to one Federalist campaign
tract, would require voters to select either
“GOD—AND A RELIGIOUS PRESIDENT;
or impiously declare for JEFFERSON—AND
NO GOD!!!”50

This widespread Federalist concern over
Jefferson’s lack of traditional religious belief
gained credence from the efforts of prominent
elements in the Jeffersonian coalition in states
such as Massachusetts and Virginia to pull
down the state-supported churches that those
colonies had erected at the time of their earli-
est settlements.51 For people who lived in an

246 JOURNAL OF SUPREME COURT HISTORY

age that had had little experience with societ-
ies that had maintained their stability without
the assistance of such established churches, it
was plausible to fear, as did a Federalist
preacher in one 1800 election sermon, that if
“the restraints of religion [were] once broken
down, as they infallibly would be, by leaving
the subject of public worship to the humors of
the multitude, . . . we might well defy all
human wisdom and power to support and pre-
serve order and government in the State[s].”52

If the Federalists were convinced that
conferral of power upon Republicans would
subvert morality and lead to violence and an-
archy, the Republicans were equally con-
vinced that, if allowed to retain power, the
Federalists would subvert republican liberties
and rule autocratically. These fears of a Fed-
eralist conspiracy to pervert American liber-
ties came to a climax during the administra-
tion of President John Adams, who held office
from 1797 to 1801. It was during his term that
Congress for the first time in American his-
tory imposed a direct tax, voted to establish a
standing army and navy, and adopted the
Alien and Sedition acts, pursuant to which
Jeffersonian editors were sent to jail for criti-
cizing government policies.53

In short, clear-cut party divisions had
emerged by the second half of the 1790s. On
one side stood the Republicans, avowing, in
the words of James Madison, “the doctrine
that mankind are capable of governing them-
selves”54 and accused by their opponents of
scheming “to introduce a new order of things
as it respects morals and politics, social and
civil duties.”55 Opposite them stood the Fed-
eralists, claiming, in the words of the New
England Palladium, to preserve “that virtue
[which] is the only permanent basis …