Marbury v. Madison (1803)


     After the national election of 1800, in which the Federalists lost the presidency and both houses of Congress to the Jeffersonian Republicans, the Federalists sought to preserve their influence within the national government by enlarging their control over the federal courts. The “lame duck” Congress, in which the Federalists held a majority, quickly passed the Judiciary Act of 1801, which was signed into law by the lame duck president, John Adams. The Judiciary Act created a number of additional federal judgeships, which under the Constitution President Adams would be able to fill with good Federalists, of course. Congress also adopted legislation creating a number of minor judgeships for the newly established District of Columbia. Here again, the power to fill these posts lay primarily with the president.

     William Marbury was one of the many Federalist politicians appointed to judicial office in the waning days of the Adams administration. Marbury’s commission as justice of the peace for the District of Columbia had been signed by the president following Senate confirmation on March 3, 1801, President Adams’ last day in office. Everything was in order, and after Secretary of State John Marshall placed the seal of the United States on the letter of commission, it was ready to be delivered to Mr. Marbury. But for some reason, yet to be fully explained, the delivery, which was entrusted to John Marshall’s brother James, never took place. Marbury’s commission was returned to John Marshall’s office on the evening of March 3rd or the morning of March 4th, along with several other justice of the peace commissions that James Marshall also failed to deliver. These commissions simply disappeared in the last-minute confusion of moving records and other papers from the office of the outgoing secretary of state, who was moving from the cabinet to his new post—chief justice of the United States.

     Thomas Jefferson was sworn in as the nation’s third president on March 4, 1801. The new secretary of state, James Madison, fully supported by the president, declined to deliver copies of the commissions to Marbury and the other Federalists who failed to get their judgeships. After Marbury and others began to press the issue, Jefferson mounted an effort to repeal the Judiciary Act of 1801. A willing Congress, now dominated by Republicans, was happy to oblige. Not only did Congress repeal the Judiciary Act, but it abolished the Supreme Court term of 1802!

     Although having to wait until 1803 for a decision, Marbury and three other frustrated appointees filed suit against James Madison in the Supreme Court, invoking the Court’s original jurisdiction. Marbury asked the Court to issue a writ of mandamus, an order directing Madison to deliver the disputed judicial commission to him. The stage was now set for a head-on collision between the Court, staffed entirely by Federalists, and the Jefferson administration.

Chief Justice John Marshall








Chief Justice John Marshall

Mr. Chief Justice Marshall delivered the opinion of the Court.

     ...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.

     ...Having this legal title to the office, [Marbury] has a consequent right to the commission; a refusal to deliver which is a plain violation of the right, for which the laws of his country afford him a remedy.

     ... It remains to be inquired whether, [Marbury] is entitled to the remedy for which he applies. This depends on 1st. The nature of the writ applied for; and, 2d. The power of this court.

    [After a lengthy discussion of the nature of the writ of mandamus and its historical basis, Marshall continues:]

      ... The act [the Judiciary Act of 1789] 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” [Section 13].

     The Secretary of State, being a person holding an office under the authority of the United States, is precisely within the letter of this 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 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.” ...

     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 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 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, 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, conformable to the law, disregarding the Constitution; or conformable 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 given 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... .

     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 obey? ...

     ... It is apparent, that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as 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!

     ...Why does a judge swear to discharge his duties agreeable 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.

Justice Cushing and Justice Moore did not participate in this decision.