Every basic government class teaches that our government is made up of three branches, and presents them as equals. But this was not always the case. Although the Constitution clearly lays out three branches and establishes a system of checks and balances to prevent one branch from dominating the others, the positions that make the ideas on paper into functioning government are always filled by people.

In the early years of our government, President Washington was especially careful to set an example for those who came after him about how a person should fulfill that position.

The same was not true for the first Chief Justices of the Supreme Court. John Jay, the first to hold the position was a dedicated Federalist and wise, but did not assert the Court’s power. It was not until John Marshall took the reins that the Supreme Court became a co-equal branch of the federal government.

How did this happen? And can a democracy function without a judiciary?


The Democratic-Republican victory in the 1800 election began a long run of Republican political success. In spite of Federalists’ departure from most elective offices, they remained a powerful force in American life especially through their leading position among federal judges. In the final months of Adams’ administration, he enlarged the federal judiciary and appointed many new judges.

In the view of Gouverneur Morris, a Federalist senator from New York, this created an independent judiciary necessary “to save the people from their most dangerous enemy, themselves.” At the head of the judiciary was Chief Justice John Marshall.


Marbury v. Madison
was a landmark Supreme Court decision in 1803 in which the Court established the basis for the exercise of judicial review in the United States under Article III of the Constitution. The decision helped define the power of the judiciary as a co-equal branch of the government, constitutionally separate from the executive and judicial branches.

The case derived from the fiercely contested presidential election of 1800. As the results of the election became clear in early 1801, Adams and the Federalists became determined to exercise their influence in the weeks remaining before Jefferson took office, and did all they could to fill federal offices with “anti-Jeffersonians” who were loyal to the Federalists. On March 2, 1801, just two days before his presidential term was to end, Adams nominated nearly 60 Federalist supporters to circuit judge and justice of the peace positions the Federalist-controlled Congress had newly created. These appointees, whom Jefferson’s supporters derisively referred to as “the Midnight Judges,” included William Marbury, a prosperous businessman from Maryland. An ardent Federalist, Marbury was active in Maryland politics and had been a vigorous supporter of the Adams presidency.

The following day, March 3, Adams’s nominations were approved by the Senate. The commissions were immediately signed by Adams and sealed by his Secretary of State, John Marshall, who had been named the new Chief Justice in January 1801 but continued also serving as Secretary of State until Jefferson took office. Marshall then dispatched his younger brother James Markham Marshall to deliver the commissions to the appointees. With only one day left before Jefferson’s inauguration, James Marshall was able to deliver most of the commissions, but a few, including Marbury’s, were not delivered.

On March 4, 1801, Thomas Jefferson was sworn in as president, and as soon as he was able, instructed his new Secretary of State, James Madison, to withhold the undelivered appointments. In Jefferson’s opinion, the commissions were void because they had not been delivered in time. Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. In December 1801, Marbury filed suit against Madison in the Supreme Court, asking the Court to issue a writ of mandamus forcing Madison to deliver Marbury’s commission. This lawsuit resulted in the case of Marbury v. Madison.

John Marshall, the new chief justice, faced a difficult challenge. He was a Federalist, had been Adams’ Secretary of State, and had been involved in the appointment of the “midnight judges.” If his Supreme Court ruled in favor of Marbury the Court would be accused of being a tool of the Federalists. If he ruled against Marbury, the Democratic-Republicans would view it as evidence that the president and congress were superior to the Court. Either way, Marshall and the Supreme Court relative to the two other branches were in a losing position.

Secondary Source: Engraving

Chief Justice John Marshall

Marshall’s solution was both ingenious and had a profound and lasting impact on American politics. He found that Marbury did have a right to his appointment, and that the Judiciary Act of 1789 provided him with a remedy known as a writ of mandamus. Nonetheless, the Court stopped short of compelling Madison to hand over Marbury’s appointment, instead holding that the provision of the Judiciary Act of 1789 that gave the Supreme Court original jurisdiction over Marbury’s claim was itself unconstitutional. The petition was therefore denied.

Most importantly, the precedent for the Court’s power of judicial review, which was not specifically enumerated in the Constitution, was established.

This was the only time the Marshall Court would strike down an act of Congress. However, that precedent was enough to establish the Court as a co-equal branch by branding it as the final interpreter of the Constitution. Since the Constitution is the most fundamental law of the country, any government action that the Supreme Court determines to be against the terms of the Constitution is void and nullified. Therefore, in its role as interpreter, the Supreme Court can overrule Congress, the president, state governments, and all lower courts.

Marbury v. Madison remains the single most important decision in American constitutional law.

Marshall did not invent judicial review. However, his opinion in Marbury was the first exercise of it by the Supreme Court. It made the practice more routine, rather than exceptional, and prepared the way for the Court’s opinion in the 1819 case McCulloch v. Maryland, in which Marshall implied that the Supreme Court was the supreme interpreter of the Constitution.


On April 10, 1816, the Congress of the United States passed “An Act to Incorporate the Subscribers to the Bank of the United States” to provide for the incorporation of the Second Bank of the United States. The Bank first went into full operation in Philadelphia, Pennsylvania. In 1817, the Bank opened a branch in Baltimore, Maryland, and transacted and carried on business as a branch of the Bank of the United States by issuing bank notes, and performing other operations usual and customary for banks. A year later the General Assembly of Maryland enacted a tax on all banks not charted by the state legislature.

The tax was clearly written to target the Second Bank of the United States, and no other banks in the state.

James William McCulloch, the head of the Baltimore Branch of the Second Bank of the United States, refused to pay the tax. The State of Maryland argued that “the Constitution is silent on the subject of banks.” It was Maryland’s contention that because the Constitution failed to state specifically that the federal government was authorized to charter a bank, that made Bank of the United States unconstitutional. The court upheld the state’s position and the bank appealed to the Supreme Court.

For Chief Justice Marshall and the Supreme Court, the McCulloch v. Maryland case was important because it got to the heart of what it meant to read the Constitution. That is, did the government have the power to do things that were not specifically listed? The Court, under Chief Justice Marshall ruled that Congress did had the power to create the Bank.

Firstly, he argued that historical practice established Congress’s power to create the bank. During Washington’s term as president, Congress had created the First Bank of the United States with Hamilton and Washington’s blessing.

Secondly, the State of Maryland had contended that because they ratified the Constitution, the states had final authority over any matters that happened within the states. This would mean that states could ignore federal laws. Marshall refuted that argument, contending that it was the people who ratified the Constitution and thus the people, not the states, who are sovereign.

Thirdly, Marshall addressed the scope of congressional powers under Article I. Marshall admitted that the Constitution does not enumerate a power to create a central bank but said that is also does not specifically say that Congress does not have the power to establish such an institution. In other words, Congress has implied powers, which must be related to the text of the Constitution but do not need to be enumerated within the text.

Chief Marshall also determined that Maryland could not tax the bank without violating the constitution since, as Marshall commented, “the power to tax involves the power to destroy.” The Court thus struck down the tax as an unconstitutional attempt by a state to interfere with a federal institutions, thus reasserting federal supremacy, the power of the federal government over the states.


In 1808, the Legislature of the State of New York granted to Robert R. Livingston and Robert Fulton exclusive navigation privileges of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of thirty years. Livingston and Fulton subsequently also petitioned other states and territorial legislatures for similar monopolies, hoping to develop a national network of steamboat lines.

Former New Jersey Governor Aaron Ogden, after working with Livingston and Fulton, eventually took them to court. The case, Gibbons v. Ogden ended with another seminal decision by the Marshall Court.

Gibbons argued that Article I, Section 8, Clause 3 of the Constitution specifically grants Congress the power to regulate interstate commerce. Thus, he argued, the monopoly created by New York conflicted with federal law. After several delays, the court began discussing the meaning of the commerce clause in 1824. By that time had become an issue of wider interest. Congress was debating a bill to provide a federal survey of roads and canals. Southerners, in particular, were growing more sensitive to what the resolution of these issues would mean to them as sectional disputes, especially over slavery, were increasing.

The Supreme Court ruled in favor of Gibbons, affirming that Congress has the right to regulate interstate commerce. This ruling has since been used many times by Congress to affect change in the states. For example, Congress was able to force southern states to desegregate busses that carried passengers across state lines, such as the Freedom Riders. Congress also used the Gibbons ruling to regulate child labor.


The United States Supreme Court under Chief Justice John Marshall played a central role in defining the power of the federal and state governments during the early nineteenth century. The three chief justices prior to Marshall had had little influence on the office or the Supreme Court itself. During his 34-year tenure, however, Marshall gave it the energy and weight of the third, co-equal branch of government. Marshall’s Court shaped the new nation with its interpretation of the Constitution and the establishing of a number of early legal precedents that helped to better define the role and function of the federal government.

Marshall promoted Federalism and the ideas of the Federalist Party and the idea of a strong central government over the opposition of the Jeffersonian Republicans, who wanted increased state sovereignty. His influential rulings shaped American government, making the Supreme Court the final arbiter of Constitutional interpretation.


The cases the Supreme Court heard in the first decades under the Constitution and John Marshall’s decisions are celebrated as wise and we can clearly see his genius at seizing opportunities to leave a lasting legacy on Constitutional law.

But was this really necessary? Could Congress have simply clarified things by passing laws? Certainly, they could have amended the Judicial Act and decided if Marbury should take up his position as a judge. They could have settled the question of the Bank by law. And, even in the Gibbons case, Congress could have passed laws to establish their superiority.

Then again, what if the states had ignored Congress? Of course, Marshall and the Supreme Court under his leadership made things simpler, but is a judiciary essential for democracy to function?



BIG IDEA: Because of the work of Chief Justice John Marshall, the Supreme Court emerged as a co-equal branch of government. Marshall also helped define the relationship between the federal government and the states.

The early Supreme Court was not considered an equal branch of government. This changed because of the work of Chief Justice John Marshall. The Marshall Court established three important precedents that have affected America’s government in the centuries that followed.

The Marbury v. Madison case established the Court as a coequal branch of government and the idea that the Court can overturn acts of Congress and the President as unconstitutional.

The McCulloch v. Maryland case confirmed the authority of the federal government over states.

The Gibbons v. Ogden case clarified Congress’s power to regulate business between states.



John Marshall: Third Chief Justice of the Supreme Court. He was critical in the establishment of the court as a co-equal branch of government. He wrote the Marbury v. Madison opinion.

Midnight Judges:
A group of Federalist judges appointed by President John Adams just before the inauguration of Thomas Jefferson. Marbury was one and his appointment resulted in the Marbury v. Madison Supreme Court decision that established judicial review.


Judicial Review: The principle that the Supreme Court can rule acts of congress or presidential decision in violation of the Constitution.

Federal Supremacy: The principle that the federal government has power over the states. States cannot ignore or overturn federal law.


Marbury v. Madison: 1801 Supreme Court case that resulted from the appointment of the Midnight Justices. The resulting decision by Chief Justice John Marshall established the principle of judicial review.

McCulloch v. Maryland:
1819 Supreme Court cased decided by the Marshall Court that established the authority of the federal government over the states.

Gibbons v. Ogden:
Supreme Court case in 1824 that established Congress’s power to regulate interstate business.


Commerce Clause: Line from the Constitution that gives Congress the power to regulate business between states. It was the subject of the Gibbons v. Ogden Supreme Court case.

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