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Marbury v.

Madison
5 U.S. 137 (1803)

[Marbury was appointed a justice of the peace, a In the order in which the court has viewed this
minor judicial officer, in the District of Columbia, by subject, the following questions have been considered
President Adamsa few days before President Jeffer- and decided.
son took office after defeating Adams in the election
1st. Has the applicant a right to the commission he
of 1800. Marburys position was one of 42 positions
demands?
created by the lame duck Congress (dominated by
2d. If he has a right, and that right has been violated,
Adams Federalist party). Ironically, his appointment
do the laws of his country afford him a remedy?
was signed by Adams Secretary of State, John Mar-
3d. If they do afford him a remedy, is it a mandamus
shall, who also was appointed and sworn-in as the
issuing from this court?
Chief Justice of the Supreme Court only days before
Jefferson took office. Oddly, neither Adams nor Mar- The first object of inquiry is . . . [h]as the applicant
shall delivered the commission to Marbury before a right to the commission he demands?
they left office, creating the basic circumstances from His right originates in an act of Congress passed in
which this dispute arose.] February 1801, concerning the District of Columbia.
After dividing the district into two counties, the 11th
Marshall, Chief Justice. section of this law enacts, that there shall be ap-
pointed in and for each of the said counties, such
* * * number of discreet persons to be justices of the peace
At the last term on the affidavits then read and as the president of the United States shall, from time to
filed with the clerk, a rule was granted in this case, re- time, think expedient, to continue in office for five
quiring the secretary of state to show cause why a man- years.[] It appears from the affidavits, that in compli-
damus should not issue, directing him to deliver to ance with this law, a commission for William Marbury
William Marbury his own commission as a justice of as a justice of peace for the county of Washington, was
the peace for the county of Washington, in the District signed by John Adams, then president of the United
of Columbia. States; after which the seal of the United States was
No cause has been shown, and the present mo- affixed to it; but the commission has never reached the
tion is for a mandamus. The peculiar delicacy of this person for whom it was made out.
case, the novelty of some of its circumstances, and the In order to determine whether he is entitled to this
real difficulty attending the points which occur in it, commission, it becomes necessary to inquire whether he
require a complete exposition of the principles on has been appointed to the office. For if he has been ap-
which the opinion to be given by the court is pointed, the law continues him in office for five years,
founded. and he is entitled to the possession of those evidences of
.... office, which, being completed, became his property.

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The 2d section of the 2d article of the constitu- The government of the United States has been
tion declares, that the president shall nominate, and, emphatically termed a government of laws, and not of
by and with the advice and consent of the senate, shall men. It will certainly cease to deserve this high appella-
appoint ambassadors, other public ministers and con- tion, if the laws furnish no remedy for the violation of a
suls, and all other officers of the United States, whose vested legal right.
appointments are not otherwise provided for. If this obloquy is to be cast on the jurisprudence
The 3d section declares, that he shall commission of our country, it must arise from the peculiar character
all the officers of the United States. of the case. It behooves us then to inquire whether
An act of congress directs the secretary of state to there be in its composition any ingredient which shall
keep the seal of the United States, to make out and exempt from legal investigation, or exclude the injured
record, and affix the said seal to all civil commissions party from legal redress. In pursuing this inquiry the
to officers of the United States to be appointed by the first question which presents itself is, whether this can
president, by and with the consent of the senate, or by be arranged with that class of cases which come under
the president alone; provided that the said seal shall not the description of damnum absque injuria; a loss without
be affixed to any commission before the same shall an injury.
have been signed by the president of the United The description of cases never has been consid-
States. ered, and it is believed never can be considered as
These are the clauses of the constitution and comprehending offices of trust, of honour or of
laws of the United States, which affect this part of profit. The office of justice of peace in the District of
the case. . . . Columbia is such an office; it is therefore worthy of
the attention and guardianship of the laws. It has re-
[The Court then examined whether the technical
ceived that attention and guardianship. It has been
requirements for appointment of Mr. Marbury had
created by special act of congress, and has been se-
been completed in compliance with the requirements
cured, so far as the laws can give security to the per-
of the federal statute and the Constitution.]
son appointed to fill it, for five years. It is not, then,
Mr. Marbury, then, since his commission was on account of the worthlessness of the thing pursued,
signed by the president and sealed by the secretary of that the injured party can be alleged to be without
state, was appointed; and as the law creating the office remedy.
gave the officer a right to hold for five years independ- Is it in the nature of the transaction? Is the act of
ent of the executive, the appointment was not revoca- delivering or withholding a commission to be consid-
ble, but vested in the officer legal rights which are ered as a mere political act belonging to the executive
protected by the laws of his country. department alone, for the performance of which entire
To withhold the commission, therefore, is an act confidence is placed by our constitution in the supreme
deemed by the court not warranted by law, but viola- executive; and for any misconduct respecting which,
tive of a vested legal right. the injured individual has no remedy.
This brings us to the second inquiry; which is . . . if That there may be such cases is not to be ques-
he has a right, and that right has been violated, do the tioned; but that every act of duty, to be performed in
laws of his country afford him a remedy? any of the great departments of government, consti-
The very essence of civil liberty certainly consists tutes such a case, is not to be admitted.
in the right of every individual to claim the protection ....
of the laws, whenever he receives an injury. One of If some acts be examinable, and others not, there
the first duties of government is to afford that protec- must be some rule of law to guide the court in the ex-
tion. In Great Britain the king himself is sued in the ercise of its jurisdiction. In some instances there may
respectful form of a petition, and he never fails to be difficulty in applying the rule to particular cases; but
comply with the judgment of his court. . . . there cannot, it is believed, be much difficulty in laying
.... down the rule.

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By the constitution of the United States, the presi- 1st. The nature of the writ applied for; and,
dent is invested with certain important political powers, 2d. The power of this court.
in the exercise of which he is to use his own discretion, 3d. The nature of the writ.
and is accountable only to his country in his political ....
character and to his own conscience. To aid him in the
[The Court then considered whether this was an
performance of these duties, he is authorized to ap-
appropriate case for a writ of mandamus.]
point certain officers, who act by his authority, and in
conformity with his orders. This, then, is a plain case of a mandamus, either to
In such cases, their acts are his acts; and whatever deliver the commission, or a copy of it from the record;
opinion may be entertained of the manner in which and it only remains to be inquired, [w]hether it can
executive discretion may be used, still there exists, and issue from this court.
can exist, no power to control that discretion. The sub- The act to establish the judicial courts of the
jects are political. They respect the nation, not individ- United States authorizes the supreme court to issue
ual rights, and being entrusted to the executive, the writs of mandamus in cases warranted by the principles
decision of the executive is conclusive. . . . and usages of law, to any courts appointed, or persons
holding office, under the authority of the United
[The Court then reasoned that once the appoint-
States.
ment was complete, the delivery of the appointment
The secretary of state, being a person holding an
was not a political act.]
office under the authority of the United States, is pre-
But when the legislature proceeds to impose on cisely within the letter of the description, and if this
that officer other duties; when he is directed peremp- court is not authorized to issue a writ of mandamus to
torily to perform certain acts; when the rights of in- such an officer, it must be because the law is unconsti-
dividuals are dependent on the performance of those tutional, and therefore absolutely incapable of confer-
acts; he is so far the officer of the law; is amenable to ring the authority, and assigning the duties which its
the laws for his conduct; and cannot at his discretion words purport to confer and assign.
sport away the vested rights of others. The constitution vests the whole judicial power of
The conclusion from this reasoning is, that where the United States in one supreme court, and such infe-
the heads of departments are the political or confidential rior courts as congress shall, from time to time, ordain
agents of the executive, merely to execute the will of the and establish. This power is expressly extended to all
President, or rather to act in cases in which the executive cases arising under the laws of the United States; and
possesses a constitutional or legal discretion, nothing can consequently, in some form, may be exercised over the
be more perfectly clear than that their acts are only po- present case; because the right claimed is given by a law
litically examinable. But where a specific duty is assigned of the United States.
by law, and individual rights depend upon the perform- In the distribution of this power, it is declared that
ance of that duty, it seems equally clear that the individ- the Supreme Court shall have original jurisdiction in
ual who considers himself injured, has a right to resort to all cases affecting ambassadors, other public ministers
the laws of his country for a remedy. and consuls, and those in which a state shall be a party.
If this be the rule, let us inquire how it applies to In all other cases, the Supreme Court shall have appel-
the case under the consideration of the court. late jurisdiction.
.... It has been insisted at the bar, that as the original
That, having this legal title to the office, he has a grant of jurisdiction, to the Supreme and inferior
consequent right to the commission; a refusal to deliver courts, is general, and the clause, assigning original ju-
which is a plain violation of that right, for which the risdiction to the Supreme Court, contains no negative
laws of his country afford him a remedy. or restrictive words; the power remains to the legisla-
It remains to be inquired whether . . . [h]e is entitled ture to assign original jurisdiction to that court in other
to the remedy for which he applies. This depends on, cases than those specified in the article which has been

3
recited; provided those cases belong to the judicial additional reason for rejecting such other construc-
power of the United States. tion, and for adhering to the obvious meaning.
If it had been intended to leave it in the discre- To enable this court then to issue a mandamus, it
tion of the legislature to apportion the judicial power must be shown to be an exercise of appellate jurisdic-
between the supreme and inferior courts according to tion, or to be necessary to enable them to exercise ap-
the will of that body, it would certainly have been pellate jurisdiction.
useless to have proceeded further than to have de- It has been stated at the bar that the appellate ju-
fined the judicial power, and the tribunals in which it risdiction may be exercised in a variety of forms, and
should be vested. The subsequent part of the section that if it be the will of the legislature that a mandamus
is mere surplusage, is entirely without meaning, if should be used for that purpose, that will must be
such is to be the construction. If congress remains at obeyed. This is true, yet the jurisdiction must be appel-
liberty to give this court appellate jurisdiction where late, not original.
the constitution has declared it shall be appellate; the It is the essential criterion of appellate jurisdiction,
distribution of jurisdiction, made in the constitution, that it revises and corrects the proceedings in a cause
is form without substance. already instituted, and does not create that cause. Al-
Affirmative words are often, in their operation, though, therefore, a mandamus may be directed to
negative of other objects than those affirmed; and in courts, yet to issue such a writ to an officer for the de-
this case, a negative or exclusive sense must be given to livery of a paper, and, therefore, seems not to belong to
them, or they have no operation at all. appellate, but to original jurisdiction. . . .
It cannot be presumed that any clause in the con- The authority, therefore, given to the Supreme
stitution is intended to be without effect; and, there- Court, by the act establishing the judicial courts of the
fore, such construction is inadmissible, unless the United States, to issue writs of mandamus to public
words require it. officers, appears not to be warranted by the constitu-
If the solicitude of the convention, respecting our tion; and it becomes necessary to inquire whether a
peace with foreign powers, induced a provision that the jurisdiction so conferred can be exercised.
Supreme Court should take original jurisdiction in cases The question, whether an act, repugnant to the con-
which might be supposed to affect them; yet the clause stitution, can become the law of the land, is a question
would have proceeded no further than to provide for deeply interesting to the United States; but, happily, not
such cases, if no further restriction on the powers of of an intricacy proportioned to its interest. It seems only
congress had been intended. That they should have necessary to recognize certain principles, supposed to
appellate jurisdiction in all other cases, with such ex- have been long and well established, to decide it.
ceptions as congress might make, is no restriction; That the people have an original right to establish,
unless the words be deemed exclusive of original juris- for their future government, such principles as, in their
diction. opinion, shall most conduce to their own happiness is
When an instrument organizing fundamentally a the basis on which the whole American fabric has been
judicial system, divides it into one supreme, and so erected. The exercise of this original right is a very great
many inferior courts as the legislature may ordain and exertion; nor can it nor ought it to be frequently re-
establish; then enumerates its powers, and proceeds peated. The principles, therefore, so established, are
so far to distribute them, as to define the jurisdiction; deemed fundamental. And as the authority from which
of the Supreme Court by declaring the cases in which they proceed is supreme, and can seldom act, they are
it shall take original jurisdiction, and that in others it designed to be permanent.
shall take appellate jurisdiction, the plain import of This original and supreme will organizes the gov-
the words seems to be, that in one class of cases its ernment, and assigns to different departments their
jurisdiction is original, and not appellate; in the other respective powers. It may either stop here, or establish
it is appellate, and not original. If any other construc- certain limits not to be transcended by those depart-
tion would render the clause inoperative, that is an ments.

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The government of the United States is of the lat- court as one of the fundamental principles of our soci-
ter description. The powers of the legislature are de- ety. It is not therefore to be lost sight of in the further
fined and limited; and that those limits may not be consideration of this subject.
mistaken or forgotten, the constitution is written. To ....
what purpose are powers limited, and to what purpose It is emphatically the province and duty of the judi-
is that limitation committed to writing, if these limits cial department to say what the law is. Those who apply
may, at any time, be passed by those intended to be the rule to particular cases, must of necessity expound
restrained? . . . and interpret that rule. If two laws conflict with each
Between these alternatives there is no middle other, the courts must decide on the operation of each.
ground. The constitution is either a superior paramount So if a law be in opposition to the constitution; if
law, unchangeable by ordinary means, or it is on a level both the law and the constitution apply to a particular
with ordinary legislative acts, and like other acts, is al- case, so that the court must either decide that case con-
terable when the legislature shall please to alter it. formably to the law, disregarding the constitution; or
.... conformably to the constitution, disregarding the law;
Certainly all those who have framed written con- the court must determine which of these conflicting
stitutions contemplate them as forming the funda- rules governs the case. This is of the very essence of
mental and paramount law of the nation, and judicial duty.
consequently the theory of every such government If, then, the courts are to regard the constitution,
must be, that an act of the legislature repugnant to the and the constitution is superior to any ordinary act of the
constitution, is void. legislature, the constitution, and not such ordinary act,
This theory is essentially attached to a written con- must govern the case to which they may both apply.
stitution, and is consequently to be considered by this * * *