JOHN MARSHALL: Marbury v. Madison
In Marbury v. Madison, Marshall declares for the first time that the Supreme Court will be the arbiter of the constitutionality of congressional legislation.
In 1801, having lost the recent Congressional and Presidential elections, the Federalists in Congress passed a judiciary act which created a number of new federal judgeships. Before leaving office President John Adams took the opportunity thus created to appoint a number of Federalists to these newly created positions. At the same time he appointed Secretary of State John Marshall as Chief Justice of the United States. One of Marshall's last tasks as Secretary was to deliver a warrant to one William Marbury who had been appointed as a judge in the District of Columbia, which through oversight he failed to do. When Jefferson arrived in the White House, being skeptical of the power of judges to begin with and disturbed by all the new Federalist judges just appointed ordered his Secretary of State, James Madison, to withhold warrants not yet given. Under a clause of the Judiciary Act of 1789, Marbury sued for his warrant in the Supreme Court. Thus Marshall was faced with a difficult decision-if he ordered the warrant delivered, and Jefferson (through Madison) refused, there was little the Court could do. Its power would be thus weakened, which would have pleased Jefferson. Instead, Marshall found that portion of the Judiciary Act under which Marbury was acting to be unconstitutional, thus claiming for the court the right of "judicial review,"-the power of the court to rule laws passed by Congress unconstitutional, when they arrived in the Court as the result of a suit. The first of Marshall's great decisions-which has not gone unchallenged-is one of those that made him ":the man who made the Court Supreme"-in the words of one of his biographers. Marshall served until his death in 1835, making him one of the most influential men in shaping the course of the new nation under the Constitution.
Excerpts as published in The Annals of America, Encyclopedia Britannica, Inc., Volume 4, 1968, pp. 165-170.
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.
Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable; and the commission may be arrested if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable and cannot be annulled. It has conferred legal rights which cannot be resumed.
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 his commission, therefore, is an act deemed by the Court not warranted by law but violative of a vested legal right. . . .
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. . . .
It is, then, the opinion of the Court:
First, 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.
Second, 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. . . .
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 inquired 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 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 inadmissable, 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 cause 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 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 organize, 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 of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgot. ten, 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 ,lot, 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 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 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 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 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.