Sara Raza is a final year law student at the Lahore University of Management Sciences (LUMS) and is currently serving as the Editor of the LUMS Law Journal (LLJ).

The two landmark judgments of Marbury v Madison[1] and McCulloch v Maryland[2] have set in stone principles, legal maxims, and rules that the United States Supreme Court introduced for the first time in its history. The interpretation of law under the umbrella of these two cases has been elaborated in the fervent opinion of Chief Justice John Marshall who perspicaciously encountered questions posed to the judiciary from 1801-1835. His reverence for the Constitution served as the determining factor of many legal rules that made part of his shrewd and prudent analysis and developed “lasting principles of constitutional adjudication”[3]. These constitutional cases decided in his time, then acted as a yardstick of pivotal scrutiny later on after his death. Even centuries later, Justice John Marshall is remembered because of the way he shaped the country in important and historic ways. His key decision that arrived at the concept of “judicial review” allows the nineteenth and twentieth century scholars to observe the far-reaching and momentous impact it had on the development of judicial power. While discussing the legacy of Justice Marshall, who, at times served as the medium of expressing unanimity on the United States Supreme Court bench, this case note will identify the important constitutional principles of universal application, and highlight phrases from the two cases, which have become maxims of law. Moreover, the latter part of the case note will include the analysis of Federalist No. 78 with regards to the principles and legal maxims mentioned in the former part, to observe how CJ Marshall had been influenced by the writing of Alexander Hamilton.   

There are many principles that hold significance in the two opinions of CJ Marshall but both must be discussed in a chronological order, keeping in view the historical prestige of each.

Marbury v Madison, the landmark Supreme Court judgment answers the three important questions that resulted in the rise of the most significant principles in US history: 1) Whether the applicant (Marbury) has a right to the commission that he demands? 2) If he does, and that right has been violated, do the laws of his country afford him a remedy? 3) If they do, is it a mandamus issuing from his court?[4] The Court in Marbury held that Section 13 of the Judiciary Act, 1789, was in contravention with Article III Section 2 of the US Constitution, making the act by the Congress unconstitutional, and hence able to be struck down by the judiciary. The Supreme Court held that Marbury had a right to be appointed as the justice of peace for the District of Columbia; however, the Supreme Court did not have the jurisdiction to issue writs of mandamus due to a conflict of Section 13 of the Act with the Constitution. This breakthrough decision espoused the unique doctrine of judicial review, where the Supreme Court recognized its power to strike down statutes that stood in violation of constitutional provisions or rights mentioned in the Constitution. The power of judicial review granted to the Courts was further divided into strong-form judicial review and weak-form judicial review (in cases where the Parliament is supreme). While the strong-form extended support to judicial activism or judicial restraint, it exists in the US as one of the most vital models, opposing the parliamentary supremacy of the Westminster model.[5]  

McCulloch v Maryland, another important case drafted by CJ Marshall highlights the balance of power between Congress and the State legislature, which ultimately portrays the importance the US Constitution holds between the two. The three significant questions considered by the Court were as follows: 1) Does Congress have a constitutional power to incorporate the bank of the United States? 2) If the Congress has this power, does the bank have an authority to establish its own branches in several States? 3) Can the bank, and its branches thus established, claim exemption from the ordinary and equal taxation of property, as assessed in the States in which they are placed?[6] As the second national bank of US was set up in the State of Maryland, the state imposed a huge tax on the bank in order to hinder its operations. When the cashier (James McCulloch) refused to pay the tax, the case went to the Court, where Maryland argued that federal government did not have an authority to establish a bank, since that power was not delegated to them in the Constitution. The Supreme Court reached a unanimous decision which upheld that Congress had the authority to establish a national bank under the “necessary and proper” clause of the Constitution, which allowed Congress to do that which is required to exercise its enumerated powers.

The first decisive principle enunciated in Marbury, manifests the principle of constitutional supremacy. The Constitution stands above all law, and is known as the highest law of the land, as mentioned in the judgment: it is a “superior, paramount law, unchangeable by ordinary means”.[7] Justice Marshall’s opinion has held high the principle in cases where there is a conflict of an ordinary law with that of a constitutional provision, and if both stand in opposition, then it is best to apply the constitution rather than the ordinary act of the legislature. For the purposes of respecting the supreme law, and not subverting the very foundation of all written constitutions, it is noteworthy that the opinion upholds the limits prescribed in situations where powers have been restricted by the Constitution itself. Marbury observes “the Constitution of the United States establishes certain limits not to be transcended by the different departments of the government. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written”. The true symphony in this principle is heard when the esteemed position of a written constitution is realized, remarkably labeling it as the fundamental and paramount law of the nation, and regarding an act of the legislature repugnant to the Constitution, as void.

The McCulloch case stresses the differences in the “nature,”[8] “character…and properties”[9] of the law that governs government from those of ordinary law.[10] The constitution of the United States with regards to the supremacy clause is adamant to show that the government, though limited in its powers, is supreme within its sphere of action; and its laws, when made in pursuance of the constitution, form the supreme law of the land.[11] Article I Section 8 of the US Constitution provides that Congress has the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof”.[12] This manifests the surpassing law of the United States which inundates the notion that Congress may vest power in the government to establish a bank as it deems necessary and fit. If the Congress passes a law which has been drawn from a constitutional principle or provision, it must be respected as a crucial law, even if the Constitution does not expressly or explicitly mention it in the text. “In England, the enforcement or preservation of limited government was left in legislative hands under the practice of legislative omnipotence”[13], and the idea of judiciary recognizing limits and enforcing them was straight out rejected by William Blackstone. However, in American constitutionalism, the juxtaposition between limited government and legislative omnipotence is clashing. According to Blackstone, to allow the judicial power, as a sovereign authority, to have a check on the ultimate power of the Parliament, may promote anarchy and set judiciary above the legislature, “which would be subversive of all government”.[14] The emphasis laid down by CJ Marshall was essentially to adapt the law within the scope of the Constitution, so that all the bodies performing high duties let their conduct exist in the letter and spirit of the Constitution, and hence as legitimate. However, in cases where the Constitution is not being regarded as the supreme law of the land, the judiciary will have a say in rectifying that error.

The second and utmost important principle highlighted from the two cases is that of the separation of powers. Marbury effectively distinguishes between the role of the executive, judiciary, and the legislature. While the President has been given the authority to nominate and appoint ambassadors, and other officers of the United States, the act of the Congress directs the secretary of the state to keep the seal on the commissions. The officers which are to be appointed by the President must be confirmed, by and with the consent of the Senate. Moreover, Article II, Section 2 of the Constitution further authorizes Congress to vest, by law, the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of the departments.[15] Therefore, for Marbury, the essence of the trichotomy of powers is once again enumerated in the Constitution, which establishes certain political powers of the President and draws the line between the authority vested in the executive with regards to the discretion the President exercises, and the rights of the individual political subjects. The judiciary, which exists as one of the three influential branches of the government, according to John Marshall, then allows the applicant a right to resort to the laws of his country for a remedy, if he feels injured, like Marbury did.

For McCulloch, the separation of powers is explicitly mentioned in the words of CJ John Marshall, “A government is created by the people, having legislative, executive, and judicial powers,”[16] and the legislative powers vested in the Congress shall help make the law, but must be assented to by the approval of the President. If for the purposes of promoting and developing the economy, Congress deemed it “suitable and fitted” to establish a bank to assist the operations of the government, it is only seen to be exercising the power granted to it under the Constitution. The Court in such an instance, is not in the position to decide whether a bank, or such a bank as this, be the best possible means to aid the purposes of the government.

For the purposes of understanding the third principle, brilliantly enunciated in McCulloch, the focus will be placed on the supremacy clause, that federal law trumps state law (federal supremacy). “The constitution, therefore, declares, that the constitution itself, and the laws passed in pursuance of its provisions, shall be the supreme law of the land, and shall control all State legislation and State constitutions, which may be incompatible therewith; and it confides to this Court the ultimate power of deciding all questions arising under the constitution and laws of the United States”.[17] CJ John Marshall has explicitly stated that Congress may be allowed to exercise its constitutional powers, at its own discretion, without being subject to the control of State legislation. This further highlights that if the State of Maryland has passed a new law of taxing the out-of-state banks, merely for the purposes of forcing to close down the bank – since only one national bank existed – the efforts of State legislation should not interfere with the decision of the government, nor should it defeat or impede the operations of a bank established as a constitutional act. The Court also relied on the necessity and justification principle as laid down in Sturges v Crowninshield[18], which laid down the fair and liberal test that stated the three advantages and uses which are required for there to exist a necessity for a bank of the United States, when no simple public bank could allow for these operations.

The fourth and fifth principles go hand in hand with regards to Marbury, which discusses the role of the judiciary as well as the ultra vires concept of jurisdiction. “It is emphatically the province and duty of the judicial department to say what the law is.”[19] “A judge has no political power, as the “province of the court is, solely, to decide on the rights of individuals […]”.”[20] Ideas such as these are quoted even out of context to promote judicial supremacy. Judicial power is something limited to particular cases, and must not be employed to make law. According to CJ Marshall, only necessity must entail the judiciary to expound and interpret the rule. In 1935 Franklin Delano Roosevelt advised a member of Congress to “leave to the courts in an orderly fashion, the ultimate question of constitutionality”.[21] The Supreme Court landmark case, Cooper v Aaron[22] also established the role of the judiciary confining to strong-form judicial review, asserting that the Court’s interpretations bind all political actors. Moreover, as explained in Marbury, the Court had original jurisdiction under the constitution to appoint ambassadors, consuls, and public ministers and cases in which the State is a party. However, since the Judiciary Act gave the Supreme Court too much power, which was above and beyond the mandate provided to it under Article III, the Court could not have issued a mandamus to make Marbury a justice of the peace, because such an act would be without jurisdiction, i.e. outside the scope of the Court, and ultra vires, hence unconstitutional.

Certain constitutional facets and aspects can be observed in the opinions penned down by CJ John Marshall with regards to the influential writing portrayed by Hamilton in Federalist No. 78[23]. “Joseph Story, writing in 1833, identified the Federalist No. 78 as the best statement of judicial authority to refuse to enforce an unconstitutional act, and looted it in the “general theory of a limited constitution”[24].”[25] Hamilton states, “By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority…..limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” As observed in Marbury, where the Supreme Court held the provision of the Judiciary Act unconstitutional, and in McCulloch, where the legislation of the State of Maryland was in conflict with the constitution, a limited constitution purported the complete independence of the courts of justice. “No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do no authorize, but what they forbid.”[26] CJ John Marshall was influenced by the words of Hamilton, when he described Marbury with respect to the Court’s jurisdiction. “The Constitution has vested the whole judicial power of the United Sates in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish.” If the judges had made Marbury a justice of the peace as a remedy to his commission not being delivered and his right being infringed, it would have meant that judges acting by virtue of their powers have in fact, done what their powers do not authorize. 

However, with regards to the constitution being the preferred statute, as highlighted in both McCulloch and Marbury, it must be regarded by the judges as a fundamental law, according to Federalist No. 78. “It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”[27] Coinciding judicial review with Federalist No. 78, Marshall’s words primarily aimed at state legislatures and at judicial decisions upholding state legislation. Time and again issues relating to state and congressional powers arose and the constitutional docket was dominated with important substantive questions.[28] This concentration was most prominent in the long series of contract clause decisions such as the famous Fletcher v Peck[29] and Dartmouth College v Woodward[30], in which Marshall set forth the controlling doctrine. However, even the most nationalistic opinions written by Marshall were aimed mainly at curtailing the evils of state legislation[31], further giving rise to the principle of federal supremacy. The proof of this lies in the way both Marbury and McCulloch held the constitution as the highest law of the land, and did not let any other primary or secondary legislation stand in contravention to the provisions of the constitution. The constitutional supremacy as mentioned in Federalist No. 78 was also in line with constitutional nationalism: McCulloch, which announced the doctrine of implied powers (powers that were derived and implied from the text of the constitution, even if they were not “expressly” mentioned), and Gibbons v Odgen[32], which provided an open-ended definition of federal commerce power.

Despite the judiciary being claimed the least dangerous – to the political rights of the Constitution – of all the three branches of the government, the Federalist No. 78 has heavily relied on the principle of separation of powers. Hamilton draws the distinction between the sword (executive) and the purse (legislature) and how the judiciary has no influence on either of them, and is “beyond comparison the weakest of the three departments of power”[33]. This was quite obvious in Marbury where the judiciary opined that it is the province of the court, solely, to decide on the rights of individuals, and not to inquire how the executive, or executive officers, perform duties in which they have discretion. A reference is also made by Hamilton to the celebrated Montesquieu and how the judiciary is regarded next to nothing in comparison with the other branches of the government.

It is also in Marbury where Marshall has allowed the reader to understand that the “government of the United States has been emphatically termed a government of laws, not of men”.[34] However, this is aligned with the conception of the terms “We the People” used in the constitution. Hamilton states, “power of the people is superior to both (judiciary as well as the legislature), and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former”.[35] The people are given importance in terms of their will, however, that does not entail that they will be governed by the tyranny of the majority, and not by laws. It simply pertains to the structuring and functioning of the laws, i.e. in a manner that the will of the people (their rights) is not compromised at the hands of a primary or secondary legislation.

The concept of the rule of law as stated in Marbury and implicitly expressed in McCulloch has shown that for every judiciary that exists, the acts, conducts, and circumstances of the case matter a great deal. “If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction.”[36] While this may be John Marshall’s way to expounding the law, and answering the question regarding the legality of an act, it is inevitably observed that even in the 1800s, Justices of the Supreme Court held the rule of law in the highest position, with utmost respect, relying on it when there is much difficulty as to how a particular case will be decided.

While Marbury has established the doctrine of judicial review, undoubtedly the biggest contribution to American constitutionalism, according to Chief Justice Warren is it also seen as the “original contribution to the science of law”.[37] The impact of Marbury is not restricted to America alone, but in fact, extends to many other jurisdictions such as Pakistan.

Marbury was relied upon in the landmark judgment of the Federal Court of Pakistan, in Molvi Tameez-ud-Din Khan case,[38] which raised vociferous constitutional debate of separation of powers between three branches of government, i.e., executive, legislature, and judiciary. It raised an important question as to whether true adherence to the separation of powers doctrine helps to protect democracy including fundamental rights.

Some commentators have argued that courts can promote constitutionalism, democracy and ensure protection of fundamental rights through a robust implementation of the separation of powers doctrine through judicial review. However, others have maintained that courts, while conducting their review, often assume a policy-making role causing an imbalance of powers between State institutions, which impedes action by the other two government institutions and hampers democracy and adequate protection of fundamental rights. The proponents of the latter view particularly refer to the tenures of two ex-Chief Justices Iftikhar Muhammad Chaudhary and Mian Saqib Nisar.

It may be argued that true adherence to the doctrine of separation of powers in fact promotes democracy and protects fundamental rights whereas non-adherence to the separation of powers impedes the protection of these rights. This argument may be constructed on the constitutional relationship between the doctrine of separation of powers and the protection of fundamental rights; however, in the context of Pakistan, this relationship needs to be thoroughly analysed on the basis of case law and academic literature. 

While interpreting fundamental rights provisions of the constitution, our courts need to appreciate the constitutional limitations allowing the realisation of fundamental rights through a political process. The judicial review power may be exercised in a balanced manner for strengthening democracy and the protection of fundamental rights. In other words, it may be proposed that, while exercising their powers to review the acts of executive and legislature, courts may seek jurisprudential guidance from other jurisdictions such as Marbury and McCulloch cases and should avoid unnecessary interference in the policymaking domain of the government.