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1.3: Marbury v. Madison

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    Marbury v. Madison 5

    U.S. 137 (1803)

    [Marbury was appointed a justice of the peace, a minor judicial officer, in the District of Columbia, by President Adams—a few days before President Jeffer- son took office after defeating Adams in the election of 1800. Marbury’s position was one of 42 positions created by the lame duck Congress (dominated by Adams’ Federalist party). Ironically, his appointment was signed by Adams’ Secretary of State, John Mar- shall, who also was appointed and sworn-in as the Chief Justice of the Supreme Court only days before Jefferson took office. Oddly, neither Adams nor Mar- shall delivered the commission to Marbury before they left office, creating the basic circumstances from which this dispute arose.]

    Marshall, Chief Justice.

    At the last term on the affidavits then read and

    filed with the clerk, a rule was granted in this case, re- quiring the secretary of state to show cause why a man- damus should not issue, directing him to deliver to William Marbury his own 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 mo- tion 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…

    In the order in which the court has viewed this subject, the following questions have been considered and decided.

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

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

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

    The first object of inquiry is . . . [h]as the applicant a right to the commission he demands?

    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 11th 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 as the president of the United States shall, from time to time, think expedient, to continue in office for five years.[”] It appears from the affidavits, that in compli- ance 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.

    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 ap- pointed, 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 2d section of the 2d article of the constitu- tion declares, that “the president shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and con- suls, and all other officers of the United States, whose appointments are not otherwise provided for.”

    The 3d 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. . . .

    [The Court then examined whether the technical requirements for appointment of Mr. Marbury had been completed in compliance with the requirements of the federal statute and the Constitution.]

    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 independ- ent of the executive, the appointment was not revoca- ble, 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 viola- tive of a vested legal right.

    This brings us to the second inquiry; which is . . . if he has a right, and that right has been violated, do the laws of his country afford him a remedy?

    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 protec- tion. 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. . . .

    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 appella- tion, if the laws furnish no remedy for the violation of a vested legal right.

    If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. It behooves us then to inquire whether there be in its composition any ingredient which shall exempt from legal investigation, or exclude the injured party from legal redress. In pursuing this inquiry the first question which presents itself is, whether this can be arranged with that class of cases which come under the description of damnum absque injuria; a loss without an injury.

    The description of cases never has been consid- ered, and it is believed never can be considered as comprehending offices of trust, of honour or of profit. The office of justice of peace in the District of Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has re- ceived that attention and guardianship. It has been created by special act of congress, and has been se- cured, so far as the laws can give security to the per- son appointed to fill it, for five years. It is not, then, on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy.

    Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be consid- ered as a mere political act belonging to the executive department alone, for the performance of which entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy.

    That there may be such cases is not to be ques- tioned; but that every act of duty, to be performed in any of the great departments of government, consti- tutes such a case, is not to be admitted.

    If some acts be examinable, and others not, there must be some rule of law to guide the court in the ex- ercise of its jurisdiction. In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule.

    By the constitution of the United States, the presi- dent is invested with certain important political powers, in the 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 ap- point 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 sub- jects are political. They respect the nation, not individ- ual rights, and being entrusted to the executive, the decision of the executive is conclusive. . . .

    [The Court then reasoned that once the appoint- ment was complete, the delivery of the appointment was not a political act.]

    But when the legislature proceeds to impose on that officer other duties; when he is directed peremp- torily to perform certain acts; when the rights of in- dividuals 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 po- litically examinable. But where a specific duty is assigned by law, and individual rights depend upon the perform- ance of that duty, it seems equally clear that the individ- ual 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.


    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 . . . [h]e is entitled to the remedy for which he applies. This depends on,

    1st. The nature of the writ applied for; and,

    2d. The power of this court.
    3d. The nature of the writ.


    [The Court then considered whether this was an appropriate case for a writ of mandamus.]

    This, then, is a plain case of a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired, [w]hether 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 pre- cisely 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 unconsti- tutional, and therefore absolutely incapable of confer- ring 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 infe- rior 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 appel- late 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 ju- risdiction to the Supreme Court, contains no negative or restrictive words; the power remains to the legisla- ture 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 discre- tion 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 de- fined 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 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 con- stitution is intended to be without effect; and, there- fore, such construction is inadmissible, 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 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 ex- ceptions as congress might make, is no restriction; unless the words be deemed exclusive of original juris- diction.

    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 construc- tion would render the clause inoperative, that is an

    additional reason for rejecting such other construc- tion, 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 jurisdic- tion, or to be necessary to enable them to exercise ap- pellate jurisdiction.

    It has been stated at the bar that the appellate ju- risdiction 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 appel- late, 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. Al- though, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the de- livery of a paper, and, therefore, seems not to belong to appellate, but to original 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 constitu- tion; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

    The question, whether an act, repugnant to the con- stitution, 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 re- peated. 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 gov- ernment, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those depart- ments.

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