...where the Constitution meets cotton candy.
The Marbury-Go-Round

Welcome to the Marbury-go-Round...an audio-animatronic journey through the life of William Marbury.  Enter your "Carbury", a replica of the Supreme Court Bench circa 1804, and prepare yourself to journey back to 1800 and see the world through the eyes of William Marbury.  

First, you will find yourself witness to the last days of  John Adams's presidency.  President-elect Jefferson and the Democratic-Republicans have swept through the executive and legislative branches of government. However, let's not forget...there is a third branch of government.  The Judiciary Act of 1801 creates a slew of judicial positions to fill.  Don't fear for your future, Mr. Marbury...your connections with the Federalist Party secured you an appointment as a justice of the peace in the District of Columbia.  You are one of the famous "Midnight Judges" appointed by our audio-animatronic Adams in his last days as president.

Thrill in the wacky twists and turns the story takes when Mr. Madison, the incoming Secretary of State, cries to President Jefferson about the undelivered appointment for one William Marbury that he finds on his desk the first day in his new office.  Hold on to your tri-cornered hats as Marbury's odyssey which begins with an application for the most famous writ of mandamus in the history of the judiciary, ends with Marbury unemployed  and the birth of Judicial Review.

What magician made this all happen?  You are about to have your first encounter with Chief Justice John Marshall....the Babe Ruth of the Supreme Court. 

At the end of the ride is an interactive adventure where children of all ages play the roles of William Marbury, James Madison, John Adams, Thomas Jefferson and Chief Justice John Marshall.  See how subtle differences in behavior could have changed history.

The Marbury-go-Round is located at the end of Preamble Street.  It is housed in a 1/3rd scale model of the Old Royal Exchange Building in New York City...where the first U.S. Supreme Court met (pictured above).

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Marbury v. Madison In Depth


Citation
5 U.S. 137 (1803)

Facts
In 1801, having lost the recent Congressional and Presidential elections, the Federalists in Congress passed the Judiciary Act of 1801 which created a number of new federal judgships. Before leaving office President John Adams took the opportunity thus created to appoint a number of Federalists to these newly created positions. "It appears from the affidavits that, in compliance with this law, a commission for William Marbury as a justice of peace for the County of Washington was signed by John Adams, then President of the United States, after which the seal of the United States was affixed to it, but the commission has never reached the person for whom it was made out." When Jefferson arrived in the White House, disturbed by all the new Federalist judges recently appointed, he ordered his Secretary of State, James Madison, to withhold warrants not yet given. Under a clause of the Judiciary Act of 1789, ranting the U.S. Supreme Court original jurisdiction over issuing writs of mandamus (i.e. orders to government officials to act in their official capacity), Marbury sued for this warrant in the Supreme Court to order Madison to deliver his commission.

Was Marbury appointed to his office?
John Marshall begins his opinion looking at the process for the president to make a judicial appointment.  Under Article 2, the president has the power "to appoint...all other officers of the United States" and "He shall commission all the officers of the United States." Pursuant to an act of Congress, the Secretary of State keeps the seal of the United States and affixes the seal "to all civil commissions to officers of the United States."  The signature by the president on the commission is a warrant to the Secretary of State to affix the seal.  "The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it."  Thus, all of the Constitutional requirements for an appointment have been met:

"Mr. Marbury, then, 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."

Does Marbury have a remedy under law?
It is a well-established rule of law "the individual who considers himself injured has a right to resort to the laws of his country for a remedy" In a separation of powers discussion, Marshall reasons that the appointment is a political power, but the "question as to whether a right has vested" is to be determined by the "judicial authority."  Since Marbury was properly appointed, he must have a remedy under law, and the correct venue to issue that remedy is the judicial branch of the government.

Is the writ of mandamus the proper proceeding?
Mandamus is defined in the Commentaries of William Blackstone, the English legal scholar, as "a command issuing in the King's name from the Court of King's Bench, and directed to any person, corporation, or inferior court of judicature within the King's dominions requiring them to do some particular thing therein specified which appertains to their office and duty."  Provided the writ can be directed to this government officer and the person seeking the writ is "without any other specific and legal remedy" then it can be issued.  Since the Secretary of State is currently withholding the commission, and Marbury has no other remedy, mandamus is the proper action in this case.

Is the Supreme Court the proper forum in which to seek a writ of mandamus?
Article 3 of the U.S. Constitution identifies the Supreme Court original jurisdiction: "in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party."  The original jurisdiction to grant a writ of mandamus does not originate in the Article 3 powers but was granted to the Supreme Court in "the act to establish the judicial courts of the United States" which is a congressional law called the Judiciary Act of 1789.  Since there is no provision in the Constitution for adding to the Supreme Court's original jurisdiction (although there is such a provision to add to the Supreme Court's appellate jurisdiction) the Judiciary Act of 1789 conflicts with the U.S. Constitution.

May a congressional law grant the Supreme Court a power not granted in the Constitution?
To answer the question "whether an act repugnant to the Constitution can become the law of the land," Marshall identifies and explains the nature of a Constitution.  In creating a Constitution, the people exercise their "right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness."  Emanating from the people,  the "principles" of that Constitution are "fundamental,"  "supreme" and "designed to be permanent." With respect to the laws enacted by the legislature empowered by the Constitution, the rule is "too plain to be contested that the Constitution controls any legislative act repugnant to it."

Who decides whether a law is "repugnant" to the Constitution? Or, which branch of government determines whether laws are unconstitutional?
 
Chief Justice John Marshall takes the opportunity presented by the Marbury decision to bestow upon the U.S. Supreme Court the power of judicial review.  Towards that goal, he writes some of the most famous words in the history of the Supreme Court:

"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."

What becomes of a law contrary to the Constitution?
Marshall proceeds with the simple rule: "the Constitution is superior to any ordinary act of the Legislature."  In the event of a conflict, "the Constitution, and not such ordinary act, must govern the case to which they both apply."  Thus, the Constitution trumps any law that conflicts with it. The Judiciary Act of 1789, granting the Supreme Court with original jurisdiction to grant a writ of mandamus, conflicts with the Constitution and is deemed by Marshall as void.  Although Marbury has a right to his judgeship, by relying on the Judiciary Act to seek his writ in the Supreme Court, he sought his remedy in the wrong venue.

Final Thoughts on the Power of A Constitution
Marshall concludes his opinion with a summation on the omnipotence of a written constitution..."the greatest improvement on political institutions."  He uses the text of the Constitution itself, specifically the Supremacy Clause, to prove its power:

"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 v. Madison...Marshall's proclamation of the power of the Supreme Court, his love letter to the Constitution, his first and greatest decision.  As long as the U.S. Constitution is the Supreme Law of the Land, people will read and revere Marbury v. Madison.

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Marbury v. Madison...in 10 Easy Steps...
 
Step 1: President Adams and the Federalist Party are voted out of office (Election of 1800).

Step 2: A law (Judiciary Act of 1801) is passed creating a bunch of jobs (judgships).

Step 3: President Adams appoints a bunch of his guys (Federalists) to fill new jobs (judgships).

Step 4: Commissions (the paper appointments) are not delivered by President Adams.

Step 5: President Jefferson (new president) refuses to give the guys their jobs (deliver the commissions).

Step 6: One of the guys (Marbury) who was appointed but not given job sues in US Supreme Court for order (writ of mandamus)  to force Jefferson to give him his job (deliver commission).

Step 7: Chief Justice John Marshall says Marbury SHOULD have been given his job (judgeship).

Step 8: But Marshall says ONLY a law (the Judiciary Act of 1789) gave the Supreme Court the power to  give that order (the writ of mandamus).

Step 9: The Constitution did NOT give the Supreme Court the power to grant that order (writ of mandamus).

Step 10: So since the Constitution is stronger than a law Marshall refuses to grant the order and Marbury does not get the job.

IT'S THE OLDEST STORY IN THE WORLD...man gets commission for judgeship, commission doesn't get delivered, man loses judgeship, Chief Justice declares the Constitution supreme and the Supreme Court the final authority of what the Constitution means!



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For more on Marshall's judicial philosophy,
click on
The Jurisprudence of John Marshall (link to follow)
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ORIGINS OF JUDICIAL REVIEW


1. Dr. Bonham's Case
: (1610) This case from old English common law decided by the famous jurist Lord Coke involved a Doctor Bonham who was imprisoned for practicing medicine without a license.  The underlying law was held to be invalid by Lord Coke:

"[I]t appears in our books that in many cases the common law will control acts of parliament and sometimes adjudge them to be utterly void; for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act as void."

From J. H. Baker, An Introduction to English Legal History, 3rd ed. (1990)


2. The Federalist (also called The Federalist Papers) is a series of 85 essays written in 1788 and 1789 by James Madison, Alexander Hamilton and John Jay as a sort of explanation on how the nation would be governed under the new Constitution.  Additionally, the essays were crafted as persuasive arguments expressing the flaws of the old system and in favor of ratification of the Constitution.  Today, they are considered classics of political sentences.



                                                          The Federalist No. 78
                                                       "The Judiciary Department"
                                                            Alexander Hamilton

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."

From the Avalone Project: http://avalon.law.yale.edu/18th_century/fed78.asp.
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 MARBURY FUN FACTS


William Marbury


1. Who was William Marbury?
The son and grandson of tobacco farmers and plantation owner from Maryland, by the time Marbury reached adulthood, inheritance to older relatives, the revolution, the collapse of the tobacco market and exhaustion of the fields from the tobacco crops depleted the families entire fortune and landholdings.  William Marbury had to make his fortune on his own...and he did through politic connections and finance. 

In the 1780s he was a deputy tax collector in and around Annapolis.  He also attended the Maryland ratifying convention which ratified the US Constitution.  In the 1790s Marbury became the State Agent of Maryland, an unelected official who acted as a financier organizing the economy and finances of the state of Maryland.  He also developed a number of very powerful friends in the new government, mostly contacts within the Adams wing of the Federalist party. 

In the late 1790s, Marbury moved with his family to Georgetown and became a part of the social elite.  He was considered a nationally renowned expert on finance and became a board of director f the Bank of Columbia.  His support of Adams in the election of 1800, along with other political connections, got his name included with the 23 other individuals for a position as a justice of the peace in Washington County...at the age of 38, he was about to enter constitutional immortality.

(The above information is just a summary of a thorough article. David F. Forte, Marbury's Travail: Federalist Politics and William Marbury's Appointment as Justice of the Peace, 45 Catholic University Law Review 349 (1996).  Excellent reading for legal history fans...the authors research of primary sources is impressive.)


2. Who forgot to deliver Marbury's appointment?
You are not going to believe it!  President John Adams'  Secretary of State was responsible for preparing and delivering official presidential commissions.  In the last two months of President Adams's term, that Secretary of State, who was also the Chief Justice of the United States, was JOHN MARSHALL.  Marshall had asked his brother James Marshall to deliver the appointments, physically.  Some of these commissions, including Mr. Marbury's, were never delivered.  The commissions were sitting on the desk of the new Secretary of State, James Madison.  Marbury's commission was signed by John Marshall personally.

From Robert J. Reinstein, Marbury's Myths: John Marshall, Judicial Review and the Rule of Law, (2004)


3. Did Secretary of State John Marshall drop the ball?
John Marshall believed the delivery of the commissions was a mere administrative formality that would be carried out by the incoming administration in the ordinary course of business...in Marshall's opinion, the new administration had a legal duty to deliver the signed and sealed commissions. So, although his brother did not deliver the commissions, since they were signed and sealed, the appointment was complete in all but the physical sense.

From Charles H. Hobson, Symposium: Marbury v. Madison and the Revolution of 1800: John Marshall, the Mandamus Case, and the Judiciary Crisis, 1801-1803, 72 George Washington Law Review 289 (2003)


4. Who refused to deliver Marbury's commission?
Although the defendant in the case is James Madison, he did not arrive in Washington until May, 1801.  Jefferson took full responsibility for withholding the commissions: "I found them on the table of the department of State on my entrance into office, and I forbade their delivery. [T]here was as yet no Secretary of State."  Jefferson saw the appointment of the "midnight judges" as a Federalist power grab for control of the least democratic branch of government.  In his mind, it was an illegitimate act which allowed him to act as he saw fit.

From Charles H. Hobson, Symposium: Marbury v. Madison and the Revolution of 1800: John Marshall, the Mandamus Case, and the Judiciary Crisis, 1801-1803, 72 George Washington Law Review 289 (2003) citing Letters from Thomas Jefferson to William Johnson (June 12, 1823), in Memoir, Correspondence, and Miscellanies, from the Papers Thomas Jefferson 373 (Thomas Jefferson Randolph ed. , 1829).



                                        
                                                                       Chief Justice John Marshall

5. Who was John Marshall?
Born on September 24, 1755, on the Virginia frontier to Thomas Marshall and Mary Randolph Keith, Marshall was a veteran of the Continental Army, and a friend of George Washington.  After the war, he read law with George Whythe at the College of William and Mary.  John Marshall served in the Virginia House of Delegates, General Assembly and as a delegate to the Virginia Convention to ratify the US Constitution.  A Federalist who supported the Constitution and a strong central government, he was elected to the US House of Representatives in 1799.  That same year he was appointed as John Adams's Secretary of State in 1800.  After John Jay turned down an appointment to a second term as Chief Justice, Marshall became the next choice.

From http://oyez.org/justices/john_marshall and  http://www.lva.virginia.gov/exhibits/marshall

Because President Adams' administration was coming to an end quickly, Adams could not use the mail of 1801 to offer the job of chief justice.  What if the applicant said no and Adams term had already ended?  Jefferson, the incoming president, would then choose the next chief justice.  So, Marshall, being a moderate federalist, loyal to Adams and most importantly, nearby, was the obvious choice.

From William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review, (2000)


6. What happened to William Marbury?
Marbury continued to work in finance and founded two banks, Bank of the Potomac and Farmers' and Mechanic Bank.  He died in 1835, the same year as John Marshall. 

(Need footnote.)


7. What did Thomas Jefferson think about the decision in Marbury v. Madison?
President Jefferson , in a letter to Abigail Adams after the decision was handed down, articulated his vision of who has the power to interpret the Constitution:

"The Constitution...meant that its coordinate branches should be checks on each other.  But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

From Thomas Jefferson to Abigail Adams, 1804 (Cited in http://www.landmarkcases.org/marbury/jefferson.html)
                         
                HELP!!!! I DON'T UNDERSTAND MARBURY v. MADISON...
                                       Let's Read It Together


                                                                           

                                                             MARBURY v. MADISON                                
                                                       (5 US 137)

                                                                                                                              

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

[Procedural History...how did this case get to the Supreme 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 [p154-this is the page in Volume 5 of the US Reporter] 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.

These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the Court, there will be some departure in form, though not in substance, from the points stated in that argument.

[Questions Presented...what are the issues to be analyzed and answered]
In the order in which the Court has viewed this subject, the following questions have been considered and decided.

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

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

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

The first object of inquiry is:

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

[Facts]
His right originates in an act of Congress passed in February, 1801, concerning the District of Columbia.

After dividing the district into two counties, the eleventh section of this law enacts,that there shall be appointed in and for each of the said counties such number of discreet persons to be justices of the peace as the President of the United States shall, from time to time, think expedient, to continue in office for five years. [p155]

It appears from the affidavits that, in compliance with this law, a commission for William Marbury as a justice of peace for the County of Washington was signed by John Adams, then President of the United States, after which the seal of the United States was affixed to it, but the commission has never reached the person for whom it was made out.

[Analysis #1- Issue: Was Marbury appointed to the office?  Note Marshall identifies and cites the controlling laws.  First, the Constitution and second an act of Congress]

In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.

The second section of the second article of the Constitution declares,

"The President shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for."

The third section declares, that "He shall commission all the officers of the United States."

An act of Congress directs the Secretary of State to keep the seal of the United States, to make out and record, and affix the said seal to all civil commissions to officers of the United States to be appointed by the President, by and with the consent of the Senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States.

These are the clauses of the Constitution and laws of the United States which affect this part of the case. They seem to contemplate three distinct operations:

1. The nomination. This is the sole act of the President, and is completely voluntary.

2. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate. [p156]

3. The commission. To grant a commission to a person appointed might perhaps be deemed a duty enjoined by the Constitution. "He shall," says that instrument, "commission all the officers of the United States."

The acts of appointing to office and commissioning the person appointed can scarcely be considered as one and the same, since the power to perform them is given in two separate and distinct sections of the Constitution. The distinction between the appointment and the commission will be rendered more apparent by adverting to that provision in the second section of the second article of the Constitution which authorises Congress to vest by law the appointment of such inferior officers as they think proper in the President alone, in the Courts of law, or in the heads of departments; thus contemplating cases where the law may direct the President to commission an officer appointed by the Courts or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which perhaps could not legally be refused.

Although that clause of the Constitution which requires the President to commission all the officers of the United States may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed remains the same as if in practice the President had commissioned officers appointed by an authority other than his own.

It follows too from the existence of this distinction that, if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer, and if he was not removable at the will of the President, would either give him a right to his commission or enable him to perform the duties without it.

These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. [p157]

This is an appointment made by the President, by and with the advice and consent of the Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable, it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still, the commission is not necessarily the appointment; though conclusive evidence of it.

But at what stage does it amount to this conclusive evidence?

The answer to this question seems an obvious one. The appointment, being the sole act of the President, must be completely evidenced when it is shown that he has done everything to be performed by him.

Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself, still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete.

The last act to be done by the President is the signature of the commission. He has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the Senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act, and, being the last act required from the person making it, necessarily excludes the idea of its being, so far as it respects the appointment, an inchoate and incomplete transaction.

Some point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the Legislature when the act passed converting the Department [p158] of Foreign Affairs into the Department of State. By that act, it is enacted that the Secretary of State shall keep the seal of the United States, and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the President: . . . provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States, nor to any other instrument or act without the special warrant of the President therefor.

The signature is a warrant for affixing the great seal to the commission, and the great seal is only to be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the Presidential signature.

It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made.

The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it.

This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.

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The discretion of the Executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.

Mr. Marbury, then, 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 the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right.

[Analysis #1- Conclusion: All of the requirements of a proper appointment are met.  Once appointment is made, Executive's power over the office ends and the appointee has an "absolute" right to the office]

This brings us to the second inquiry, which is:

[Analysis #2- Issue: Does Marbury have a remedy under law?]

2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? [p163]

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. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law.

"In all other cases," he says,

it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.

And afterwards, page 109 of the same volume, he says,

I am next to consider such injuries as are cognizable by the Courts of common law. And herein I shall for the present only remark that all possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals are, for that very reason, within the cognizance of the common law courts of justice, for it is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every injury its proper redress.

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.

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By the Constitution of the United States, the President is invested with certain important political powers, in the [p166] 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. The application of this remark will be perceived by adverting to the act of Congress for establishing the Department of Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the Courts.

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.

If this be the rule, let us inquire how it applies to the case under the consideration of the Court. [p167]

The power of nominating to the Senate, and the power of appointing the person nominated, are political powers, to be exercised by the President according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated, and consequently, if the officer is by law not removable at the will of the President, the rights he has acquired are protected by the law, and are not resumable by the President. They cannot be extinguished by Executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source.

The question whether a right has vested or not is, in its nature, judicial, and must be tried by the judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate and proceeded to act as one, in consequence of which a suit had been instituted against him in which his defence had depended on his being a magistrate; the validity of his appointment must have been determined by judicial authority.

So, if he conceives that, by virtue of his appointment, he has a legal right either to the commission which has been made out for him or to a copy of that commission, it is equally a question examinable in a court, and the decision of the Court upon it must depend on the opinion entertained of his appointment.

That question has been discussed, and the opinion is that the latest point of time which can be taken as that at which the appointment was complete and evidenced was when, after the signature of the President, the seal of the United States was affixed to the commission.

[Analysis #2- Conclusion: Marbury MUST have a remedy for the sake of justice and the proper branch to determine  that remedy is the judiciary.]

It is then the opinion of the Court:

1. That, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice [p168] 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.

2. 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 inquired whether,

3. He is entitled to the remedy for which he applies. This depends on:

1. The nature of the writ applied for, and

2. The power of this court.

[Analysis #3-Is the writ of mandamus the correct proceeding?]

1. The nature of the writ.

Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be

a command issuing in the King's name from the Court of King's Bench, and directed to any person, corporation, or inferior court of judicature within the King's dominions requiring them to do some particular thing therein specified which appertains to their office and duty, and which the Court of King's Bench has previously determined, or at least supposes, to be consonant to right and justice.

Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al., states with much precision and explicitness the cases in which this writ may be used.

"Whenever," says that very able judge,

there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit), and a person is kept out of possession, or dispossessed of such right, and [p169] has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government.

In the same case, he says,

this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.

In addition to the authorities now particularly cited, many others were relied on at the bar which show how far the practice has conformed to the general doctrines that have been just quoted.

This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone,

to do a particular thing therein specified, which appertains to his office and duty and which the Court has previously determined or at least supposes to be consonant to right and justice.

Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right.

These circumstances certainly concur in this case.

Still, to render the mandamus a proper remedy, the officer to whom it is to be directed must be one to whom, on legal principles, such writ may be directed, and the person applying for it must be without any other specific and legal remedy.

1. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the President of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate, and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that, in such a case as this, the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should, at first view, be considered [p170] by some as an attempt to intrude into the cabinet and to intermeddle with the prerogatives of the Executive.

It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.

But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents; if it be no intermeddling with a subject over which the Executive can be considered as having exercised any control; what is there in the exalted station of the officer which shall bar a citizen from asserting in a court of justice his legal rights, or shall forbid a court to listen to the claim or to issue a mandamus directing the performance of a duty not depending on Executive discretion, but on particular acts of Congress and the general principles of law?

If one of the heads of departments commits any illegal act under colour of his office by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of deciding on the legality of his conduct if the case be such a case as would, were any other individual the party complained of, authorize the process?

It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case in which Executive discretion is to be exercised, in which he is the mere organ of Executive will, it is [p171] again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation.

But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden -- as for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record -- in such cases, it is not perceived on what ground the Courts of the country are further excused from the duty of giving judgment that right to be done to an injured individual than if the same services were to be performed by a person not the head of a department.

This opinion seems not now for the first time to be taken up in this country.

It must be well recollected that, in 1792, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the Circuit Courts, which act, so far as the duty was imposed on the Courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character.

This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but the question whether those persons who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list was a legal question, properly determinable in the Courts, although the act of placing such persons on the list was to be performed by the head of a department.

That this question might be properly settled, Congress passed an act in February, 1793, making it the duty of the Secretary of War, in conjunction with the Attorney General, to take such measures as might be necessary to obtain an adjudication of the Supreme Court of the United [p172] States on the validity of any such rights, claimed under the act aforesaid.

After the passage of this act, a mandamus was moved for, to be directed to the Secretary of War, commanding him to place on the pension list a person stating himself to be on the report of the judges.

There is, therefore, much reason to believe that this mode of trying the legal right of the complainant was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose.

When the subject was brought before the Court, the decision was not that a mandamus would not lie to the head of a department directing him to perform an act enjoined by law, in the performance of which an individual had a vested interest, but that a mandamus ought not to issue in that case -- the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right.

The judgment in that case is understood to have decided the merits of all claims of that description, and the persons, on the report of the commissioners, found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional in order to place themselves on the pension list.

The doctrine, therefore, now advanced is by no means a novel one.

It is true that the mandamus now moved for is not for the performance of an act expressly enjoined by statute.

It is to deliver a commission, on which subjects the acts of Congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right of which the Executive cannot deprive him. He has been appointed to an office from which he is not removable at the will of the Executive, and, being so [p173] appointed, he has a right to the commission which the Secretary has received from the President for his use. The act of Congress does not, indeed, order the Secretary of State to send it to him, but it is placed in his hands for the person entitled to it, and cannot be more lawfully withheld by him than by another person.

It was at first doubted whether the action of detinue was not a specific legal remedy for the commission which has been withheld from Mr. Marbury, in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold is incapable of being ascertained, and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission or a copy of it from the record.

This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record,

[Analysis #3- Conclusion: Seeking a writ of mandamus is the proper action]

and it only remains to be inquired:

[Analysis #4- Issue: Is the Supreme Court the proper forum in which to seek a writ of mandamus?]

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 [p174] 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 construction is inadmissible unless the words require it. [p175]

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 the 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 case. 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 [p176] appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable the Court to exercise its appellate jurisdiction.

[Analysis #4- Conclusion: The Constitution does NOT give the Supreme Court is not given the power to issue a writ of mandamus]

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.

[Analysis #5- Issue: Is it proper for a LAW to give the Supreme Court a power that is not given to it by the Constitution?]

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 recognise 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 [p177] 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.

[The power of Judicial Review is proclaimed by Marshall]

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. [p178]

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 favour of its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution. [p179]

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?

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 endeavours 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 [p180] 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.


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