#5—MARBURY v. MADISON, 5 U.S. 137 (1803)
FACTS: On February 27, 1801, less than a week before John Adams was succeeded
by Thomas Jefferson as President, the lame-duck Federalist Congress passed a bill
authorizing the President to appoint justices of the peace in the District of Columbia.
On March 2, two days before his term expired, Adams made 42 appointments to that
office, and the appointments were confirmed by the Senate the following day.
Adams immediately signed the commissions formalizing the appointments. John
Marshall, who was then still serving as Adams’ Secretary of State (just prior to his
taking office as Chief Justice of the Supreme Court), affixed the Great Seal of the
United States and directed his brother Thomas Marshall to deliver the commissions.
However, in the last-minute rush of the transition, the commissions signed by
Adams were not delivered.
When Jefferson assumed office, he found the commissions lying on a table in
the State Department and directed that they not be delivered. Instead, Jefferson
decided to reduce the number of justices of peace from 42 to 30 and gave recess
appointments to thirty persons, including 25 of those named by Adams, plus five of
his own choosing. One of those appointed by Adams but not given a Jefferson
appointment was William Marbury, a prominent Federalist businessman.
In response Marbury filed an action in the Supreme Court to request the Court
to issue an order (called a “writ of mandamus”) requiring James Madison,
Jefferson's Secretary of State, to deliver the Marbury commission signed by
Adams. Marbury relied on a provision of an Act of Congress authorizing the
Supreme Court to issue writs of mandamus to “persons holding office, under the
authority of the United States.”
ISSUES: (1) Does Marbury have a right to the commission? (2) If so, and if that
right has been violated, is the Secretary of State subject to a court order to deliver
the commission? (3) If so, does the Supreme Court have the power under Article
III of the Constitution to grant such an order in a case invoking its original
jurisdiction?
DECISION (unanimous opinion by Chief Justice John Marshall): (1) Yes; (2) Yes;
(3) No. Therefore Marbury’s petition should be dismissed.
The Court (in a very questionable interpretation of the Act of Congress relied
upon by Marbury) agreed with Marbury that the Act authorized the Supreme Court
to grant such a writ of mandamus in the exercise of its original jurisdiction. But the
Court then concluded that the statutory provision exceeded Congress’ powers under
Article III of the Constitution; and that therefore the Court could not constitutionally
grant the writ requested by Marbury.
The result was the first opinion of the Supreme Court asserting the Court’s
power to hold an Act of Congress unconstitutional—the doctrine of judicial review.
In his opinion, Marshall stated (in part):
“It therefore becomes necessary to inquire whether a jurisdiction so
conferred can be constitutionally exercised.
“The Constitution is either (1) a superior, paramount law, unchangeable
by ordinary means, or it is (2) on a level with ordinary legislative acts and is
alterable whenever Congress shall please to alter it. If the first alternative is
correct, then a legislative act contrary to the Constitution is not law; if the
second alternative is correct, 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, if it is 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 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 is inconsistent with the Constitution—if both the law and
the Constitution apply to a particular case, so that the case must be decided
conformably to the law, disregarding the Constitution; or conformably to the
Constitution, disregarding the law—a court must determine which of these
conflicting rules governs the case. This is the very essence of judicial duty.
“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 is prescribing limits, and at the same time 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.”