Marbury vs. Madison- 1803 - History

Marbury vs. Madison- 1803 - History


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MARSHALL, Chief Justice The first object of enquiry is, Has the applicant a right to the commission he demands?...

Mr. Marbury, . .. since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of his country.

To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.

2. This brings us to the second enquiry: which is, If he has a right, and that right has been violated, do the laws of his country afford him a remedy? . It is . the opinion of the Court,

1st. That by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years.

2ndly. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of his country afford him a remedy.

It remains to be enquired whether,

3rdly. He is entitled to the remedy for which he applies.

This depends on:

1st. The nature of the writ applied for, and

2ndly. The power of this court....

This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired,

Whether it can issue from this court.

The act to establish the judicial courts of the United States authorizes the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."

The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore, absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign.

The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.

In the distribution of this power, it is declared, that "the supreme court shall have original jurisdiction in an cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In an other cases, the supreme court shall have appellate jurisdiction."...

If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance.

It cannot be presumed, that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it....

The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

The question whether an act repugnant to the constitution can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles supposed to have been long and well established, to decide it.

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, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion, nor can it, nor ought it to be frequently repeated. The principles therefore so established are deemed fundamental. And as the authority from which they proceed is supreme and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited. and to what purpose is that limitation committed time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the Constitution is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an act of the legislature repugnant to the constitution is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.

In some cases, then, the constitution must be looked into by the judge. And if they can open it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the constitution which serve to illustrate this subject.

It is declared that "no tax or duty shall be laid on article exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it, ought judgment to be rendered in such a case? Ought the judges to close their eye on the constitution, and only see the law?

The constitution declares "that no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it, must the court condemn to death those victims whom the constitution endeavors to preserve?

"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these, and many other selections which might be made, it is apparent that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be wed as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as _____, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States." Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? — if it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.


Marbury vs. Madison- 1803 - History

Just as George Washington helped shape the actual form that the executive branch would take, so the third chief justice, John Marshall, shaped the role that the courts would play.

Under the administrations of Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the bench, and under the terms of the Constitution, they held office for life during "good behavior." Thus, when the opposing Republicans won the election of 1800, the Jeffersonians found that while they controlled the presidency and Congress, the Federalists still dominated the judiciary. One of the first acts of the new administration was to repeal the Judiciary Act of 1800, which had created a number of new judgeships. Although President Adams had attempted to fill the vacancies prior to the end of his term, a number of commissions had not been delivered, and one of the appointees, William Marbury, sued Secretary of State James Madison to force him to deliver his commission as a justice of the peace.

The new chief justice, John Marshall, understood that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law.

Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted.

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. But through its role as arbiter of the Constitution, it has, especially in the twentieth century, been the chief agency for the expansion of individual rights. (See Part V.)

For further reading: George L. Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-1815 (1981) Donald O. Dewey, Marshall v. Jefferson: The Political Background of Marbury v. Madison (1970).

Marbury v. Madison

Chief Justice Marshall delivered the opinion of the Court.

At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the Secretary of State to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the district of Columbia.

No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the opinion to be given by the court is founded. . . .

In the order in which the court has viewed this subject, the following questions have been considered and decided:

1st. Has the applicant a right to the commission he demands?

2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3d. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of inquiry is -- 1st. Has the applicant a right to the commission he demands? . . .

It [is] decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state. . . .

To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.

This brings us to the second inquiry which is 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. [The] government of the United States has been emphatically termed a government of laws, and 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. . . .

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. . . .

But when the legislature proceeds to impose on that officer other duties when he is directed peremptorily to perform certain acts when the rights of individuals are dependent on the performance of those acts he is so far the officer of the law is amenable to the laws for his conduct and cannot at his discretion sport away the vested rights of others.

The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear, that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy. . . .

It is, then, the opinion of the Court [that Marbury has a] right to the commission a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.

It remains to be enquired whether,

3dly. He is entitled to the remedy for which he applies. This depends on -- 1st. The nature of the writ applied for, and,

2dly. The power of this court.

1st. The nature of the writ. . . .

This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record and it only remains to be enquired,

Whether it can issue from this court.

The act to establish the judicial courts of the United States authorizes the Supreme Court "to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."

The Secretary of State, being a person holding an office under the authority of the United States, is precisely within the letter of the description and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.

The constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States and, consequently, in some form, may be exercised over the present case because the right claimed is given by a law of the United States.

In the distribution of this power it is declared that "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction."

It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the Supreme Court, contains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited provided those cases belong to the judicial power of the United States.

If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original and original jurisdiction where the constitution has declared it shall be appellate the distribution of jurisdiction, made in the constitution, is form without substance.

Affirmative words are often, in their operation, negative of other objects than those affirmed and in this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the constitution is intended to be without effect and, therefore, such a construction is inadmissible, unless the words require it.

If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction unless the words be deemed exclusive of original jurisdiction.

When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.

To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original.

It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.

The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised.

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States but happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future govern-ment, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and is, conse-quently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution or conformably to the constitution, disregarding the law the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written constitution -- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to oey?

There are many other parts of the constitution which serve to illustrate this subject.

It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law?

The constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it must the court condemn to death those victims whom the constitution endeavors to preserve?

"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich and that I will faithfully and impartially discharge all the duties incumbent on me as _____, according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States." Why does a Judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void and that courts, as well as other departments, are bound by that instrument.

The rule must be discharged.

Source: 1 Cranch 137 (1803).

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Background

In the weeks before Thomas Jefferson’s inauguration as president in March 1801, the lame-duck Federalist Congress created 16 new circuit judgeships (in the Judiciary Act of 1801) and an unspecified number of new judgeships (in the Organic Act), which Adams proceeded to fill with Federalists in an effort to preserve his party’s control of the judiciary and to frustrate the legislative agenda of Jefferson and his Republican (Democratic-Republican) Party. Because he was among the last of those appointments (the so-called “midnight appointments”), William Marbury, a Federalist Party leader from Maryland, did not receive his commission before Jefferson became president. Once in office, Jefferson directed his secretary of state, James Madison, to withhold the commission, and Marbury petitioned the Supreme Court to issue a writ of mandamus to compel Madison to act.

Marbury and his lawyer, former attorney general Charles Lee, argued that signing and sealing the commission completed the transaction and that delivery, in any event, constituted a mere formality. But formality or not, without the actual piece of parchment, Marbury could not enter into the duties of office. Despite Jefferson’s hostility, the court agreed to hear the case, Marbury v. Madison, in its February 1803 term.

Some scholars have questioned whether Marshall should have removed himself from the case because of his prior service as Adams’s secretary of state (1800–01). Certainly, later judicial standards would have called for recusal, but at the time only financial connections to a case led judges to step aside, as Marshall did in suits regarding Virginia lands in which he had an interest. The Republicans, always quick to criticize Marshall, did not even raise the issue of the propriety of his sitting in the case.

The issue directly presented by Marbury v. Madison can only be described as minor. By the time the court heard the case, the wisdom of Jefferson’s desire to reduce the number of justices of the peace had been confirmed (and the Judiciary Act of 1801 had been repealed) Marbury’s original term was almost half over and most people, Federalists and Republicans alike, considered the case to be moot. But Marshall, despite the political difficulties involved, recognized that he had a perfect case with which to expound a basic principle, judicial review, which would secure the Supreme Court’s primary role in constitutional interpretation.


Procedural History:

December 21, 1801: Marbury files suit in the Supreme Court in seek for a writ of mandamus in order to demand his commission to be delivered after President Jefferson instructed Madison to withhold the commission’s.

The Court then discussed whether Marbury had a right to the commission he demands and whether the court itself had any authority to decide the issues pertaining to the case.

February 24, 1803: Chief John Marshall announced the decision to the Court.

As a result, the application for the writ was denied, leaving Marbury without his commission.


A system of distinct powers built into the Constitution to prevent an accumulation of power in one branch.

The presidential election of 1800 was bitter and divisive. Thomas Jefferson, a Republican, defeated incumbent John Adams, a Federalist. The Federalist-controlled Congress passed a law, just days before Jefferson was to take office, allowing outgoing President John Adams to appoint forty-two new justices of the peace. These new justices became known as “midnight judges” because of the last-minute nature of their appointments.

By the time Jefferson took office, not all of the commissions formalizing the appointments had been delivered. President Jefferson ordered his Secretary of State, James Madison, not to deliver the commissions to Adams’s appointees. One of those commissions not delivered was for William Marbury. Marbury asked the Supreme Court to issue a “writ of mandamus” – a court order forcing Jefferson and Madison to deliver the commissions. The Judiciary Act, passed by Congress in 1789, had given the Supreme Court the power to issue these writs.

Sitting as Supreme Court Chief Justice was John Marshall, a Federalist, and the cousin of Thomas Jefferson. In his landmark opinion, Marshall asserted that Marbury had a right to his commission, but that the Supreme Court lacked the power under Article III of the Constitution to force the President to deliver it. In so ruling, the Supreme Court overturned the portion of the 1789 Judiciary Act granting the Supreme Court the power to issue writs of mandamus. The Supreme Court had found an act of Congress unconstitutional, and judicial review was first exercised.

This Homework Help video explores the first landmark Supreme Court cases and asks students to assess its impact on U.S. history.


A Skillfully Written Opinion

Chief Justice Marshall wrote the opinion for a unanimous Court. Marshall, who history remembers as the greatest chief justice to serve, managed to craft a skillful opinion amid a highly charged political atmosphere. Marshall hoped to avoid a direct conflict with Jefferson, Madison, and the anti-Federalist whom he feared would simply say no if he ordered them to deliver the commissions. At the time, the Supreme Court had little recognized power to actually force other branches of the government to comply with its decisions. In an attempt to aid the growth of the young governmental system by deciding who would be the ultimate interpreter of the Constitution, Marshall established the principle of judicial review. The new principle allowed the Supreme Court to have final word on the meaning and application of the Constitution.

Marshall's historic opinion was divided into five parts. The first three parts were simple. First, Marbury had a legal right to be a justice of the peace. Second, Secretary of State Madison violated this right by withholding the commission. Third, the writ of mandamus was a proper way to direct a government official to carry out his duty. But, the question of who could issue the writ led to the fourth part of the ruling.


Lasting Impact

Despite its newly declared power, the Supreme Court under John Marshall never again declared an act of Congress unconstitutional. Only in 1895 – nearly a century later – was it used as precedent for judicial review. At the time Marbury was decided, it was not necessarily seen as a momentous case. It steadily gained in importance, however, and is now seen by many as the case that established the judiciary as a co-equal branch of the U.S. Government.

Marbury provides precedent for judicial review dating to the founding fathers, and the model that Marshall set for an active and powerful judicial branch has helped to shape constitutions throughout the world.

Marbury v. Madison has some critics to this day. Most, however, take judicial review as a foundational aspect of the separation of powers. Regardless of personal beliefs, its age and role as a cornerstone of judicial power means that Marbury v. Madison holds an almost unrivaled place of importance in American judicial history.


Marbury vs. Madison- 1803 - History

Marbury v. Madison, 5 U.S. 137 (1803)

The dictum in this case has been the subject of a great deal of commentary, but before going on to adding some more, something should be said about the actual holding and decree, which are wrong. Marbury was claiming a property right in a commission as Justice of the Peace granted to him by the outgoing President John Adams as one of his final acts, against a refusal to accept delivery of the commission by Madison, as a cabinet official under President Jefferson, the successor to Adams. Chief Justice Marshall ruled that Marbury had such a property right, but that the Supreme Court lacked the constitutional authority to issue a writ of mandamus to Madison, and the Judiciary Act of 1789 was unconstitutional in assigning it original jurisdiction for such a writ of mandamus.

This decision must be regarded as political. Marshall was afraid of being impeached and removed from the Court if he ruled in favor of Marbury. Pressure was strong to do that for Justice Samuel Chase, who would be tried in the Senate two years later for his part in the Alien and Sedition Acts trials. So Marshall temporized in this case, but in so doing also delivered one of the more important dicta that would guide further jurisprudence ever since.

Did Marbury have a property interest in his commission? No, he did not. He would have had under the British monarchical constitution, but under the Constitution for the United States, there can be no property right in an appointment to a public office. Even if there were, the procedure established of granting a commission that did not become effective until delivered and accepted made the grant incomplete without the acceptance, just as a grant deed of real property is not complete until delivered and accepted by the grantee. Madison had the authority to refuse to accept delivery, and when he did, any rights Marbury might have had terminated. The right had not vested.

Does the Court have the authority to issue a writ of mandamus to an executive branch official? Of course it does. Any order of any court is an order to an executive branch official. It might be directed primarily at a civilian, but implicit is the authority to an official to enforce it if the subject of the order fails to comply.

On the other hand, Marshall is correct on one point. If the official refused to obey the order there is not much the court can do about it. At that point the only remaining remedy is removal from office, and perhaps prosecution after removal.

So, the Judiciary Act of 1789 was not unconstitutional on this point. However, the dictum explaining the duty of the court to rule a statute unconstitutional if it was in conflict with the constitution was sound, as far as it went. The problem was that it left the impression that this was the exercise of a power of the court that only the court had. The misleading statement was, "It is emphatically the province and duty of the judicial department to say what the law is." It is misleading because it connotes that as the "province" is is exclusive of the other departments. The logic of constitutional republican government is that everyone, not just the courts, and not just public officials, has the duty to enforce the law, and, where conflicts in the law arise, resolve those conflicts and apply the correct law. When one of the laws in conflict is the constitution, then the duty is of constitutional review, which is only judicial review when it is judges that happen to do it. It is not an exclusive power of the courts. It is a duty of everyone subject to the Constitution.

So what happens if the Supreme Court rules in a case that a statute is unconstitutional, but the Congress or the President disagrees with them? They are bound to respect the decision in that case, unless they have strong enough conviction of the wrongness of the decision to refuse to abide by it, but the ruling does not remove the statute from the books. It could still be enforced by the Executive in other cases. But the Court is indicating by its decision that it will not enforce the statute in other cases, and that any attempt to do so by the other branches will not be productive. Confronted with that refusal by the Judiciary to enforce, it is to be expected that the Executive will stop trying to enforce it, and the Congress will stop trying to fund it. It takes all three branches to cooperate in establishing and enforcing a law, and the refusal of any one of them defeats the effort.

The same principle extends to civilians. If jurors refuse to convict under a criminal statute that at least one of them considers to be unconstitutional, then the enforcement of the act fails, and it becomes a dead letter. If the required majority of the jury in a civil case fail to support the plaintiff in an action authorized by law, then that law becomes moot.

This also points to the conclusion that under a constitutional requirement for unanimous verdicts of twelve jurors in criminal trials, if the objective is to have a 50 percent chance of a prosecution succeeding in obtaining a guilty verdict, and the jury is selected at random from the population, then there needs to be at least 94 percent support for the criminal statute in the community. If there is not, then mathematically there is a better than 50 percent chance that in a random jury of twelve at least one of them will disagree with the law enough to refuse to convict someone of violating it. The choice of a jury size of twelve is not an accident of history. As it happens, human societies have historically had an average of about six percent of their populations who were disposed to delinquency if not disciplined by the other 94 percent, who tend by nature to not engage in delinquent behavior even without the sanction of law. However, whenever a majority of less than 94 percent has attempted to impose its morality on the remainder by criminal laws, the result has, in general, been counterproductive and even destructive of social cohesion and respect for law and lawmaking. This indicates that a constitution should require that any criminal laws be passed by a legislative majority of at least 94 percent.


Marbury v. Madison

Marbury v. Madison (1803) was an important legal case in United States history. It was the first time the Supreme Court declared that an act of Congress was unconstitutional, or against the country’s set of rules. Marbury v. Madison established the idea of judicial review—the power of the Supreme Court to decide whether laws agree with the Constitution.

Background

In the 1800 presidential election, John Adams lost to Thomas Jefferson. Before he left office, Adams created a number of new positions and filled them with members of his political party. William Marbury was appointed as one of the new judges, but he did not receive his order before Jefferson became president. Marbury could not take office without the official order. Jefferson told his secretary of state James Madison to not deliver it to Marbury. Marbury then asked the Supreme Court to force Madison to deliver the order.

Decision

Chief Justice John Marshall wrote the decision in Marbury v. Madison. The court found in favor of Madison on February 24, 1803. The decision said the law that gave the court the power to force Madison to deliver Marbury’s order was unconstitutional. This decision established the Supreme Court as the ultimate interpreter of the United States Constitution.


Watch the video: Marbury v. Madison Case Brief Summary. Law Case Explained