John Marshall,Marbury v. Madison,and the Construction of Constitutional Legitimacy

I. Marbury v. Madison Reconsidered

The facts of the case date back to the final days of the administration of President John Adams in March 1801. Worried that the incoming Jefferson administration and new Democratic-Republican Congress would fill the federal judiciary with party loyalists, Adams nominated a slate of fifty-two candidates to fill various federal judicial offices only days before leaving office. ²⁰ Although the nominees were confirmed by the Senate and their written commissions signed by Adams, several commissions belonging to these “midnight judges” remained undelivered (ironically by then-Secretary of State John Marshall) when Thomas Jefferson was inaugurated as the nation’s third President. Upon learning of the failed deliveries, Jefferson ordered his Attorney General, Levi Lincoln, to disregard Adams’s appointments, basing his decision on the belief that non-lifetime appointments were revocable. After Jefferson sent his own candidates to the Senate for confirmation, a number of the previous appointees, including one William Marbury, petitioned the Supreme Court for a writ of mandamus enjoining the new Secretary of State James Madison to recognize their commissions, along with those of the other Adams appointees. ²¹ Opening arguments in Marbury v. Madison began on February 10, 1803, with Attorney General Lincoln representing the government and former Attorney General Charles Lee representing Marbury.

Notwithstanding able arguments presented by both attorneys, the verdict was unanimous. On February 24, Marshall delivered the Court’s opinion, which was structured as a series of answers to three questions. First, did Marbury possess a title to his commission? Second, was the administration obliged to recognize his appointment? And finally, did the Supreme Court have the power to issue a writ of mandamus compelling the Secretary of State to accept the commissions? Marshall concurred with the plaintiff’s argument that Marbury did possess a proprietary right to his appointment, and furthermore that the laws of the nation afforded him a legal remedy for the deprivation of his right. But in a surprising twist, the Chief Justice denied that the Supreme Court was the proper body for issuing the writ of mandamus, holding that section 13 of the Judiciary Act of 1789, which in broadening the Supreme Court’s jurisdictional authority had permitted the Court to hear Marbury, violated the constitutional provisions governing the Court’s original jurisdiction set forth in Article VI of the Constitution. Thus the Court asserted the superiority of constitutional over ordinary law, striking down as invalid section 13, and with it, the legal standing of Marbury and the rest of Adams’s appointees.

Marshall did not reserve his discussion of the Constitution to the rousing conclusion of Marbury. On the contrary, the Constitution is referenced eloquently and often provocatively throughout his opinion, and its authority is justified from multiple vantage points. Obviously, differences exist between Marshall’s understanding of the Constitution’s role and contemporary ones. But in allowing him to put forth his distinctive understanding of the Constitution’s authority, Marbury provided Marshall with the opportunity to apply what have become some of our most important theories of constitutional legitimacy. He began with a discussion of rights.

II. Marbury and the Protection of Rights

Among constitutional theorists, many argue that a written constitution’s principal purpose is to protect citizens’ rights. ²² For these thinkers, popular majorities, and particularly their elected representatives, will override individual liberties if not legally restrained from doing so. Ronald Dworkin has made this case well over the course of several decades. “The constitutional theory on which our government rests is not a simple majoritarian theory,” Dworkin writes. “The Constitution, and particularly the Bill of Rights, is designed to protect individual citizens and groups against certain decisions that a majority of citizens might want to make, even when that majority acts in what it takes to be the general or common interest.” ²³ Working from these assumptions, Dworkin has argued that a legitimate constitution must contain provisions that “disable” majority rule by codifying political and individual liberties alongside provisions that “enable” collective political decisions. ²⁴ He goes on to assert that such a theory provides a constitutional conception of democracy that is based on the principle of equality rather than on its traditional association with majority rule. Accordingly, each member of the community is treated “with equal concern and respect,” and “citizens’ most basic freedoms” are protected from infringement by the democratic process. ²⁵ The argument is by no means a recent one: the purpose of the Constitution as a bridle upon the dangers of popular rule was a prominent opinion voiced by political leaders throughout the Founding era. One need only turn to the warnings of James Madison himself in his famous Federalist #10 for evidence of this widespread concern with securing the “public good and private rights” from the special “danger” posed by majority faction. ²⁶

Much of the first half of Marshall’s opinion is centered on rights, and specifically on Marbury’s right to assert legal title to his appointment as Justice of the Peace of the District of Columbia. Here it is important to note that it is unclear whether this matter needed to be addressed at all by the Court, let alone as its starting point. Indeed, Marshall’s decision to pursue this question has often cast suspicion on his motives in the case. ²⁷ As John Brigham’s discussion of Marbury points out, “It seems obvious now that this talk of rights is an appropriate form of inquiry, but 200 years ago the legal foundations of the national Union were anything but certain.” ²⁸ Perhaps it was partly out of concern for crafting such foundations that Marshall agreed with the prosecution’s claim that Marbury did hold a title to his commission. As he put it, the determinative moment that guaranteed Marbury’s title was not the formal delivery of the sealed commission or any other “solemnities” involved in the confirmation process, as the attorneys for the Jefferson administration had argued. Ceremonies of delivery were “directed by convenience, not by law.” The key turning point was the President’s signature, for once affixed, deliberation had ceased, a decision had been rendered, and Adams’s signature had given immediate “force and effect to the commission.” Thus inscribed, Adams’s constitutional power of appointment was discharged completely: “his judgment” had been made, and “the right of the office” was conveyed in whole from the President to his appointee. “The right to the office is then in the person appointed,” concluded Marshall, “and he was the absolute, unconditional, power of accepting or rejecting it.” ²⁹

Marshall drew on the familiar language of investiture to describe this transference. According to this doctrine, which had its origins in natural law philosophy, an individual was endowed with certain basic rights that were not subject to government control, including the possession and acquisition of private property. ³⁰ On Marshall’s understanding, Marbury was “invested” with a title to his office no different in its legal validity than “a patent for land.” As was the case with any legal right, Marbury’s was “protected by the laws of his country.” ³¹ Marshall made the point in some of his most forceful and enduring language from the bench:

The government of the United States has been emphatically termed a government of laws, & not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. ³²

Admittedly, Marbury’s was a statutory, not a constitutional right. But for Marshall, Marbury’s vested right was part of a bigger picture. Here he used the particular case of Marbury’s commission to make the broader point that the protection of rights was a fundamental purpose of any government. Marbury’s right to his office “was not revocable,” he averred, and was secured “by the laws of his country.” Indeed, he declared, “[t]he very essence of civil liberty” consisted of a citizen’s legal protection from injury, and one of government’s “first duties” was to afford such protection. ³³ In making this argument, Marshall moved seamlessly from discussing the Constitution’s protection of vested statutory rights to an amplification of the document’s defense of the “absolute rights of individuals.” ³⁴ The tensions existing between these categories mattered less to him than the fact that both forms of rights were secured by the rule of law.

Having established Marbury’s title to the commission, Marshall next turned to the question of whether the protection of this right was superseded by Jefferson’s constitutional powers as Chief Executive. By taking up the topic, the Chief Justice implicitly repudiated the administration’s position that the appointment process, along with executive branch decisions generally, was free from inspection by the judiciary. But he did not go so far as to claim that every decision made by the President and his officers was subject to review by the nation’s courts, acknowledging a realm of discretion within which the President exercised independent authority (“accountable only to his country in his political character, and to his own conscience”). The exercise of these legitimate powers affected “the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive.” These distinctly “political powers” adhering to the office of the Presidency entailed some measure of independent authority and freedom, including the latitude to “appoint certain officers, who act by his authority and in conformity with his orders.” The recent establishment by Congress of the Department of Foreign Affairs was an example ready at hand for Marshall. The officers of that department, Marshall explained, were “to conform precisely to the will of the President. He is the mere organ by whom that will is communicated.” Indeed, as Marshall concluded with a tone of finality, “the acts of such an officer, as an officer, can never be examinable by the Courts.” ³⁵

Up until this point in the opinion, the Jefferson administration appeared to be in the clear. Yet the Chief Justice next argued that the administration did not possess the authority to annul Adams’s appointments. Although the President and his cabinet possessed considerable authority for exercising their own discretion with respect to the affairs of the nation, this realm of discretion did not extend to the liberties of citizens. On occasions “where a specific duty is assigned by law, and individual rights depend on the performance of that duty,” members of the executive branch complied with the Constitution rather than exercised their own discretion. ³⁶ In his capacity as a public minister of the law, Secretary of State Madison did not have the authority to refuse Adams’s appointees and sport away vested rights – a minor distinction in the opinion that would prove to have far-reaching consequences for legal limitations on presidential power in landmark cases such as United States v. Aaron Burr (1807) and United States v. Nixon (1974). ³⁷

Recognizing Marbury’s commission thus signaled a larger acknowledgment that the government of the United States rested its authority on its ability to safeguard rights from political interference, which in Marbury included the right of citizens to seek and obtain legal redress when those rights were violated. Accordingly, Marshall defended the constraining force of the rule of law against decisions of political leaders that conflicted with constitutional protections, even when leaders such as Jefferson drew support from popular majorities. But what authority codified the protection of these rights in the form of a constitution? Having established Marbury’s legal rights, Marshall turns to the important role of the American people in the creation of the Constitution. His retelling of their performance of this task indicates how popular sovereignty complements traditional approaches to rights-based constitutionalism.

III. Marbury and the Role of Popular Sovereignty

A number of constitutional theorists look less to rights and more to the American people in locating legitimacy. The standard Lockean authorization of political consent – that is, as an express act of agreement to political authority by the governed – was one of the most familiar definitions of the concept in Marshall’s time, and the significance of “majoritarian and populist mechanisms” as the keystone of the Constitution’s legitimacy has continued to the present day. ³⁸ Bruce Ackerman, for instance, describes the Founding as a moment of revolutionary politics that entailed the development of “a distinctive form of constitutional practice” that “established paradigms for legitimate practices of higher lawmaking that subsequent generations have developed further.” ³⁹ Such moments of “higher lawmaking” by the American people are rare, and they are distinguished by certain conditions: they must attract public attention to a greater extent than the ordinary, everyday political process; they involve the voice of a mobilized opposition; and they entail a majority of the population’s support for legal initiatives based on their merits. ⁴⁰ Ackerman argues that these self-conscious exercises of popular sovereignty – specifically, at the time of the Founding, Reconstruction, the New Deal, and the Civil Rights movements of the 1950s and 1960s – differentiate representative democracy from constitutive moments representing the “considered judgments made by the People.” ⁴¹ Like Dworkin, Ackerman celebrates the abstract principles found in the Constitution. Unlike Dworkin, however, he views these principles as levers for collective political action rather than justifications for an expansive conception of rights. As he put it in a recent summary of his position, “the Constitution’s authority is generated by the mobilized and self-conscious commitments of We the People.” ⁴²

Once he had established the Constitution’s protection of rights, Marshall next turned to this issue of popular consent. The context of the discussion was whether the Supreme Court could exercise the discretion conferred upon it by section 13 of the Judiciary Act of 1789, a provision that expanded the original jurisdiction of the Court partly in an effort to relieve the case burden on state courts. ⁴³ For Marshall, the question of whether the Court could issue a writ of mandamus to Secretary Madison as permitted by Congress meant addressing the issue of “whether an act repugnant to the Constitution can become the law of the land,” an issue he saw as “deeply interesting to the United States.” ⁴⁴ To answer this question, Marshall without reservation invoked the will of the people and its authority in striking down section 13. As he saw it, the American people were the sole authority behind constitutional government, and their power narrowed the scope of future legislation. Here, as in his defense of Marbury’s commission, Marshall stood on noncontroversial ground, the will of the people being one of many popular justifications of constitutional authority. ⁴⁵

The reason why the Constitution was supreme to ordinary law, according to Marshall, was straightforward: the document’s ultimate authority stemmed from the American people, who had both established and consented to its legal authority. Although Marshall does mention the intentions of the framers in Marbury, he emphasizes to a greater degree the role of the people as authors of the Constitution. Indeed, turning his opinion into what R. Kent Newmyer has called “a lesson in republican civics,” he proceeded to claim that “the whole American fabric” was based upon the principle that “the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness.” ⁴⁶ The exercise of this right was an unusual exertion of the will of the people, one that could not and should not be repeated often. As he put it, the “original and supreme will” of the people had organized the government, allocating political powers among “different departments.” In addition, the people did not grant authority to the three branches of government indiscriminately but had resolved to impose “limits not to be transcended by those departments.” These limits apply especially to Congress: “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Both of these decisions – to form a national government and to set limits on its legislative authority – were based not on impulse but on the people’s “contemplation” and decision to create a “fundamental and paramount law of the nation.” ⁴⁷ Only by understanding these popular origins of the Constitution could the reason for the binding character of its provisions be fully understood.

This interpretation of the Constitution’s origins raised alarms among the opinion’s Democratic-Republican readers, who had long feared that the Preamble’s claim to speak on behalf of “We the People” aimed to collapse the thirteen state governments into a single, corporate nation. ⁴⁸ Marshall’s portrayal of the Constitution as a product of collective deliberation and determination rendered by all Americans – on the basis of “reflection and choice,” as Alexander Hamilton described in Federalist #1 – stood in contrast to Anti-Federalist and Jeffersonian interpretations of the document as nothing more than a mere alliance among the sovereign states. But Marshall was hardly advocating mass democracy. While it was the people alone who were ultimately responsible for the momentous decision to create a Constitution, Marshall was careful not to exaggerate their future importance. Although the Constitution’s supremacy was based on the principle of popular sovereignty, he cautioned that the collective exercise of this authority was reserved for exceptional occasions. Going forward, the American people would hold the narrower responsibility of holding elected officials accountable for their political decisions at the ballot box.

Marshall’s constitutionalism emphasizes the importance of popular sovereignty, agreeing with Ackerman on both the singularity of its exercise as well as the deliberation such movements require in order to confer legitimacy. ⁴⁹ Moreover, as Marshall saw it popular sovereignty was the ultimate source of the rights protections found in the Constitution. The authority of the people was “supreme,” he declared in no uncertain terms, and the principles they established were “designed to be permanent.” ⁵⁰ Rights and consent were therefore two complementary pillars upon which the Constitution’s legitimacy stood. But do these two objects exhaust the justifications for constitutional obedience? What immediate, day-to-day guidance might the Constitution provide for national politics? While Marshall emphasized the Constitution’s protection for rights and its basis in consent, he also located the source of the document’s legitimacy in more practical terms. This understanding proved especially important in lending force to the closing argument of the Court’s opinion.

IV. Marbury and the Constitution as “Focal Point”

A third way that some constitutional theorists locate legitimacy is to portray the Constitution in more instrumental terms, by basing the text’s binding authority on its ability to organize, settle, and otherwise provide safe direction to the political affairs of a nation. Beyond the document’s status as a guardian of rights and object of consent, these thinkers rest its legitimacy on its ability to institute and maintain stability amid political disagreement. ⁵¹ Put simply, as the nation’s supreme law, the Constitution furnishes “focal points” that act as a roadmap for the political system and legislative agenda. This function has been described best by legal theorist David Strauss, who works from the premise that individuals in any social setting inevitably “disagree about various questions, large and small, related to how the government should be organized and operated.” ⁵² Political rules that may seem straightforward and innocuous to many Americans, such as the appropriate duration of the President’s term of office or whether Congress should have one or two chambers, might otherwise hamstring the political process and even lead to “disastrous” consequences for the stability of the state were they left open-ended. The Constitution prevents this scenario insofar as its textual provisions provide a means to “settle” weighty political concerns. While the text may not offer an ideal solution to these fundamental political dilemmas, it does render a satisfactory one that people can live with. Hence, says Strauss, obedience to the Constitution as supreme law is grounded in “the practical judgment that following this text, despite its shortcomings, is on balance a good thing to do because it resolves issues that have to be resolved one way or the other.” ⁵³ This approach shows that the Constitution is valuable not because it pretends to embody either rights or the will of the people, but because it solves political disputes that would otherwise create serious social divisions through interminable litigation, frustrating the more immediately pressing policy needs of the nation. Put simply, constitutions are binding due to their practicality. Moreover, as Strauss argues, conceiving of the Constitution in this functional manner offers a clear and uncomplicated explanation for its status as supreme law, one that makes sense even to those with little attachment to the United States or even to the rule of law. ⁵⁴

Although the Constitution certainly settled a host of interstate difficulties attending the Articles of Confederation, this purpose had not achieved the same prominence as either rights or consent as an explanation for its authority at the time of Marbury. Indeed, as John Phillip Reid has pointed out, the great influence of the social contract tradition with its vocabulary of rights and consent often rendered alternative viewpoints of constitutional authority to a peripheral status. ⁵⁵ Marshall’s discussion of the provisions of the Constitution that gave order, rules, and direction to the nation’s politics made clearer than ever before this instrumental function of the Constitution. Each part of the Constitution was intended to have a regulative effect on national politics, lest any of its clauses should be rendered as “mere surplusage” and “form without substance.” ⁵⁶ In arguing these points, Marshall moved beyond the familiar terms of the debate involving rights and consent, and drew attention to the organizational role the Constitution would play in American politics.

One national focal point that figures heavily in Marbury is the Supreme Court itself. At the time of Marbury, the Constitution lacked an authoritative and final expositor, and it was by no means clear that the Court could pass judgment upon the constitutionality of the actions of the political branches. ⁵⁷ Yet Marshall is emphatic that the safest way to organize judgments of constitutionality is to confine such determinations to the Supreme Court. Marshall expressed no doubts here. Turning to the language of Article Three, he notes that the Constitution “vests the whole judicial power of the United States” in a single Supreme Court and “such inferior courts” established from time to time by Congress. ⁵⁸ Its words, he wrote, “expressly extended” this power “to all cases arising under the laws of the United States.” It was thus the Supreme Court’s “province and duty … to say what the law is” when a law conflicted with the Constitution. ⁵⁹ It was up to the Court, in other words, to evaluate legislation, and even its own conduct, against the standards set by that document. Moreover, he continued, the Court did not reach its decisions on the basis of extraneous legal traditions or particular ideologies. Instead, the object that governed judges’ conduct in their official character was the constitutional text itself, given that the framers had “contemplated that instrument as a rule for the government of courts, as well as the legislature.” ⁶⁰ Thus the only location for authoritative judgments of constitutionality in the case of justiciable controversy was the Supreme Court, and the Court’s decisions on constitutional questions were determined solely by the Constitution. The Constitution was a guide for the nation and the nation’s courts, a document that must be opened, read, “looked into,” and “inspected.” ⁶¹

In addition to providing guidance for its interpretation, the Constitution provided specific signposts to define and limit congressional power. For example, Article One prohibited state-issued taxes and duties. It also expressly forbade ex post facto laws and bills of attainder. Article Three provided clear rules of evidence to the judiciary regarding treason convictions. Quoting this clause in full, Marshall noted that “no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Emphasizing that “many other selections” might be mentioned, he went on to affirm that such provisions illustrated that the Constitution was a guiding “rule” for both legislation and judicial decisions, and that such “constitutional principles” must never yield to an act of Congress. Reducing the Constitution to a status equal to that of “an ordinary act of the legislature,” he warned, would give “to the legislature a practical and real omnipotence” in the nation’s political affairs. ⁶²

Finally, Marshall draws attention to the oath of office as a constitutional focal point common to all branches of government insofar as it puts all members of the government under the obligation to support and defend the Constitution. Approaching the close of his decision, he portrays this oath not as an empty ceremony, but as a solemn vow to subordinate all decisions and “conduct in their official character” to the strictures of constitutional law. Why else, he asks, must a judge take this oath “to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government?” ⁶³ If the oath did not carry with it the duty to regard the Constitution as such a rule, then both prescribing and taking the oath would be “equally a crime.” Although the oaths taken by Presidents, justices, and members of Congress upon assuming office were different in length and content, in Marshall’s eyes they were uniform insofar as they obligated all to uphold the Constitution. Thus, as he puts it in the dramatic conclusion to Marbury, the “particular phraseology of the Constitution of the United States” confirms the document’s superiority to legislative law, and thus that “courts, as well as other departments, are bound by that instrument.” ⁶⁴

In the short term, the Court’s decision in Marbury proved uncontroversial, as the opinion met with little public outcry. ⁶⁵ Whether this subdued response signaled tacit approval or stunned outrage, it proved temporary. The Jeffersonians soon drew battle lines against the Marshall Court, perceiving it as the last Federalist stronghold in the national government. In 1804, a warning shot was fired in the Chief Justice’s direction when Jefferson’s followers in the House of Representatives impeached Justice Samuel Chase. Though Chase escaped conviction, Thomas Jefferson’s personal animus toward the Court in general and Marshall in particular never ebbed, even after his Presidency ended. Writing in 1819 to Judge Spencer Roane of the Virginia Court of Appeals, the former President would repudiate the notion that an unelected Supreme Court possessed “the right to prescribe rules” governing Congress and the President. Giving the judiciary such absolute authority over the Constitution’s interpretation would reduce the document to “a mere thing of wax,” he wrote, which justices “may twist and shape into any form they please.” ⁶⁶ In hindsight, Marbury represented the first episode in a long and often acrimonious clash between the Court and its Jeffersonian critics.

Yet Marbury’s failure to quell partisan rancor should not diminish Marshall’s attempts at conciliation. As Gordon Wood points out, Marbury was the only occasion during Marshall’s long tenure as Chief Justice that the Court declared an act of Congress unconstitutional, and Marshall’s statement of the Court’s role in the American constitutional system attempted to strike a note of restraint. ⁶⁷ In justifying the binding authority the Constitution exercised on citizens, Marshall drew on familiar themes, not innovative ones. The Constitution protected the rights of citizens. It was authorized if not written by the original and supreme will of the people. While securing rights and embodying consent, it also served as a practical rulebook, identifying the Supreme Court as the site of constitutional interpretation while instituting boundaries on the reach of the national government. Among other matters, these boundaries included the limitations the Constitution placed upon the political powers of the President and the ability of Congress to extend the Supreme Court’s jurisdiction beyond constitutional limits. In Marbury, each of the dominant explanations for the Constitution’s legitimacy – rights, consent, and focal points – are components of a broader and more unified narrative of its authoritative role in the United States.

But if each of these approaches to legitimacy furnishes only a partial understanding of the Constitution’s role in the United States, does merely lumping them together create a greater attachment to that document? Does creating such a partnership of principles add to or strengthen the Constitution’s legitimacy, or does it merely reinforce existing reasons for obedience? In response to these questions, it is worth paying attention to still other ways in which Marshall describes the Constitution in Marbury, and how in doing so he points to a theory of the Constitution’s moral legitimacy that refers to but also transcends the facets of his constitutionalism that have been examined so far.

V. Marshall’s Theory of Constitutional Legitimacy

For many contemporary political and legal theorists, constitutions derive their legitimacy from more than their protection of liberties, their representation of consent, or their instrumental role in providing institutional and legal focal points for settling conflicts. These theories require more, linking a constitution’s legitimacy to its ability to provide a just legal regime based on its moral justifiability or its worthiness of respect. In the words of Habermas, “legitimacy means that there are good arguments for a political order’s claim to be recognized as right and just.” ⁶⁸ Disagreement abounds, however, concerning what threshold regimes must meet in order to be considered morally legitimate. Ideal theories of moral legitimacy stipulate that no constitution is absolutely legitimate, yet one can nonetheless be binding to the extent that it approximates an ideal moral standard such as justice or equality. ⁶⁹ For instance, Sotirios Barber and James Fleming have defended a moral or “philosophic” approach to constitutional interpretation, emphasizing the “abstract moral and political principles” embodied in the Constitution that demand from justices “normative judgments about how [such principles] are best understood, not merely historical research to discover relatively specific original meanings.” ⁷⁰ Such arguments see legitimacy in aspirational terms only, insofar as they furnish a conceptual standard that all existing constitutional regimes never quite meet. ⁷¹ Alternatively, minimal theories of moral legitimacy insist that it is not necessary for a constitution to be morally legitimate in absolute terms in order to bind citizens to its rule, especially if a better, alternative constitution cannot be realized swiftly and peacefully. ⁷² Indeed, as Richard Fallon claims, a “sufficiently just” constitution is better than no constitution, and so a constitution’s fundamental legitimacy may arise simply “from the facts that it exists, that it is accepted as law, that it is reasonably (rather than completely) just, and that agreement to a better constitution would be difficult if not impossible to achieve.” ⁷³ Joseph Raz takes the argument a step further, reasoning that “as long as they remain within the boundaries set by moral principles, constitutions are self-validating in that their validity derives from nothing more than the fact that they are there.” ⁷⁴ But whether these approaches emphasize an ideal or minimal moral legitimacy, on this much they agree: a constitution derives its legitimacy not only from rights, consent, or its settling function alone, but from its ability to situate these principles within the parameters of its moral justifiability.

In Marbury, Marshall resists making a stark choice between ideal and minimalist theories. On the contrary, he draws on both to advance a concept of moral legitimacy that challenges and reaches beyond the conceptual divide that separates them. On the one hand, his rhetoric in referring to constitutional principles is far too muscular for the comparatively uninspiring minimalist theories. On the other hand, he never describes the Constitution as ideal, nor did he hesitate to point out that constitutional government is better than no government at all. ⁷⁵ Marshall’s moral legitimacy falls below standards that could never be realistically met but above those that any legal regime might possess. Thus in contrast to approaches that set the bar of moral legitimacy either too high or too low, Marbury stakes out a middle ground.

Even if the Constitution was not perfect, however, it was nonetheless worthy of reverence and veneration. Indeed, for Marshall, the Constitution demanded a form of devotion that verged on the reverential. As Chief Justice, he often spoke of the document in religious terms, invoking it as the nation’s “sacred” law. ⁷⁶ Nor did he shy away from using such language in Marbury. He minced no words when declaring that the oath taken by political officers to support the Constitution is an ethical as well as a legal bond: “How immoral,” he exclaims, “to impose [an oath] on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!” ⁷⁷ Elsewhere in the opinion he again applies similar rhetoric when contending that the Constitution is worthy of the same veneration Americans attached to their state constitutions, which had long “been viewed with so much reverence.” ⁷⁸ Marshall was ever mindful of this moral dimension of the rule of law, one that could not be adequately captured in legal terms alone.

Yet such rhetoric, no matter how moving, has its limits. After all, calling for reverence cannot by itself establish that the Constitution promotes a just legal order. But Marshall’s theory of constitutional legitimacy is more than a stock of literary flourishes. Similar to ideal theories of moral legitimacy that emphasize principles such as justice, consent, and equality, Marshall’s rhetoric is anchored to the Constitution’s embodiment of fundamental principles that distinguished it from other legal documents. Referring to the constitutive power of the people, Marshall describes their accomplishment not only as an act of the people’s consent, but also as the pronouncement of “such principles as, in their opinion, shall most conduce to their own happiness.” ⁷⁹ Having been declared, these principles are “deemed fundamental” and become “permanent,” due in large part to the time and effort involved in their pronouncement. ⁸⁰ Inscribed in the Constitution, they are “the basis on which the whole American fabric has been erected.” Although Marshall does not specify these principles in detail, they can be easily inferred from his opinion: the formation of a national government, the defined and limited powers of the legislative branch, the Constitution’s protection of civil liberties, and its supremacy to legislative acts, as well as specific, legal directives based on common law and earlier legal traditions. ⁸¹ Together, these “essential” principles and rules supply the foundation for the rule of law, while also entailing a duty on the part of political officials to follow them. ⁸² Hence it was “necessity” and “the essence of judicial duty,” Marshall wrote, that obligated the Court to render a determination of legality when ordinary legislation conflicted with the constitutional text. ⁸³ While consent did play a legitimizing force for Marshall, it was the institution of those principles conducive to good government and the people’s happiness that helped make written constitutions “the greatest improvement on political institutions.” ⁸⁴ In short, it was not the act of consent alone that was important for the Constitution’s legitimacy, but the principles and objects that the people consented to and helped create.

Admittedly, Marshall also engaged minimalist understandings of moral legitimacy in arguing that the nation did not have a ready legal alternative to the Constitution. Here he provides a hint of what might follow from rejecting its legitimacy, producing for his readers a pair of stark political alternatives from which they must choose. ⁸⁵ The options typically appear overdrawn, perhaps intentionally, and they are posed to a variety of people, including judges, legislators, and the general public. Judges are obliged to follow and defend the Constitution as “paramount law,” or they are “reduced to the necessity of” ignoring its words entirely, so that they “close their eyes on the Constitution, and see only the law.” ⁸⁶ When political officers swear to uphold and defend the Constitution, the oath of office either forms “a rule for the government of courts, as well as of the Legislatures,” or else its administration is a crime “worse than solemn mockery.” ⁸⁷ Either an act of Congress contrary to the Constitution must be struck down, or the “legislature may alter the Constitution by an ordinary act,” making written constitutions “absurd attempts on the part of the people to limit a power in its own nature illimitable.” Finally, Marbury declares in bold and sweeping terms that there is “no middle ground” on the question of whether the Constitution is “a superior, paramount law, unchangeable by ordinary means,” or “on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please.” ⁸⁸ For Marshall, one either accepts the Constitution as providing an effective legal order for holding the nation together, or one is confronted with an unlimited and potentially tyrannical legislature.

Yet presenting the Constitution’s moral legitimacy as a weave of principles and pragmatism was not enough for Marshall. Throughout the course of Marbury, he endeavors to amplify the Constitution’s legitimacy by emphasizing its essential and foundational character. Repeatedly he depicts the Constitution as exercising its own power, enjoining the performance of actions and duties on the part of political officials, investing power in the judiciary, and prescribing rules governing admissible evidence. ⁸⁹ At times he stands aside, allowing the Constitution to speak for itself, as when he carefully notes that it is the Constitution and not the Supreme Court that “has declared” where “their jurisdiction shall be original” and “where it shall be appellate.” Every word of the document is binding, Marshall stresses, for “it cannot be presumed that any clause in the Constitution is intended to be without effect.” The Constitution thus exerted a forcefulness that set it apart from the Articles of Confederation. Moreover, he makes it clear that denying its legitimacy would lead to more than legal confusion or policy gridlock. Of worse consequence, it would render the basis of the Constitution “entirely void,” “subvert the very foundation of all written constitutions,” and undermine all the “principles and theory of our government.” ⁹⁰ Marshall’s theory of the Constitution’s moral legitimacy is one with teeth: in Marbury, the American Constitution – the entire American Constitution – is given its own voice as the nation’s supreme law.

Marbury v. Madison, like most of Marshall’s Supreme Court opinions, is a portrait of concise and methodical writing. It therefore appears odd, in light of his characteristic economy of words, that the language he uses to describe the Constitution requires more elaboration than he provides. How may we finally characterize Marshall’s theory of constitutional legitimacy? Marbury indicates that the Constitution encompassed more than a bundle of notions about rights, consent, and settlement functions. Constitutional loyalty ran deeper than that for Marshall. He viewed the document as legitimate because as the nation’s supreme law it embodied principles citizens might not simply defer to but also revere as just foundations for good and stable government. Moreover, the federal Constitution was the only one the nation had. In the absence of realistically attainable alternatives, its importance for supplying a coherent system of law applicable to all citizens should not be taken lightly, particularly given the myriad deficiencies attending the Articles of Confederation. Hence the Constitution deserved the veneration of all citizens as good law, but for those who were not persuaded by its merits, its moral legitimacy also stemmed from the fact that the nation could simply not do without one.

VI. Conclusions

Marbury stands as both an invitation and a provocation to contemporary debates concerning constitutional legitimacy. Marshall’s constitutionalism runs counter to approaches such as those of Dworkin, Ackerman, and Strauss, which tend to concentrate on distinctive purposes or functions as conferring legitimacy. Among these purposes are its protection of individual liberties, enshrinement of popular consent, and establishment of a blueprint for organizing politics. Since Marshall does not base his theory of legitimacy on any single justification, his opinion fosters a common ground for contemporary conversation concerning the basis of constitutional legitimacy. Yet however crucial these functions of the Constitution are to its legitimacy, they do not fully capture Marshall’s comprehensive understanding of its authority. Marshall envelops these attributes in his constitutionalism, but also invites a distinct appreciation of the Constitution as embodying a fundamental moral legitimacy that elevates the standing of the document in the hearts and minds of citizens. Neither utopian dreamer nor hardboiled minimalist, he conceived of the Constitution as simultaneously principled and practical, embracing both the philosophical ends and the practical means required to establish a just and workable regime. Thus Marbury offers a concept of constitutional legitimacy that subsumes but reaches beyond contemporary conceptualizations, insisting that readers question the sufficiency of explanations that fail to capture the complex character of the rule of law.

In setting forth Marshall’s theory of constitutional legitimacy, Marbury also illustrates how constitutional loyalty is not simply a given, but must be constructed. While it is true that the Constitution was regarded as national law at the time the case was decided, viewpoints differed considerably regarding the particular element that granted the document its legitimacy. The opinion in Marbury is an example of how the Constitution’s legitimacy was and indeed remains a constructed conviction rather than an automatic one, the achievement of political craftsmanship as much as a product of the power of its words alone. Nor was Marshall unaware of the importance of his words within the larger political context of his time. As Christopher Eisgruber has argued, in light of the general public’s largely ambiguous attitude toward the national government during his tenure, the Chief Justice’s rhetoric was directed toward convincing Americans “that national institutions, including the federal judiciary, would govern well.” ⁹¹ Given the role that his statesmanship and persuasion played in instilling in citizens a belief in the Constitution’s moral legitimacy, we might rethink the explanatory power of interpretations of Marshall that cast him as either a zealous defender of Federalist policies or a figure who endeavored to transcend political matters entirely. Marshall was a considerably more complex political thinker than these cramped interpretations suggest.

Revisiting Marbury requires readers to reconsider the opinion, challenging the conventional wisdom that it is primarily concerned with judicial review. It also requires us to reconsider the conventional wisdom on John Marshall, who deserves to be seen as a formidable political thinker concerned with the concept of constitutional legitimacy. That said, Marbury and Marshall do not provide the final word on the topic. It is abundantly clear that Americans will continue to define and debate their constitutional fidelity according to many different standards. For Marshall, the tensions between these understandings should not necessarily be a source of worry. Rather, his arguments in Marbury show that the justifications we give for the Constitution’s legitimacy cannot neglect the general acknowledgment that it is supreme law – a requirement that applies to Presidents, legislators, judges, and ordinary citizens alike. Though often overlooked, this acknowledgment of the moral legitimacy of the Constitution, so artfully articulated by Marshall in Marbury, can be considered the indispensable bond that ties all Americans to its authority, in his time and our own.