黑猫用尾巴来撒娇:Marbury v. Madison (1803)

Just as George Washington helped shape the actual form that the executivebranch would take, so the third chief justice, John Marshall, shaped therole that the courts would play.

Under the administrations of Washington and his successor, John Adams,only members of the ruling Federalist Party were appointed to the bench,and under the terms of the Constitution, they held office for life during"good behavior." Thus, when the opposing Republicans won theelection of 1800, the Jeffersonians found that while they controlled thepresidency and Congress, the Federalists still dominated the judiciary.One of the first acts of the new administration was to repeal the JudiciaryAct of 1800, which had created a number of new judgeships. Although PresidentAdams had attempted to fill the vacancies prior to the end of his term,a number of commissions had not been delivered, and one of the appointees,William Marbury, sued Secretary of State James Madison to force him todeliver his commission as a justice of the peace.

The new chief justice, John Marshall, understood that if the Court awardedMarbury a writ of mandamus (an order to force Madison to deliver the commission)the Jefferson administration would ignore it, and thus significantly weakenthe authority of the courts. On the other hand, if the Court denied thewrit, it might well appear that the justices had acted out of fear. Eithercase would be a denial of the basic principle of the supremacy of the law.

Marshall‘s decision in this case has been hailed as a judicial tourde force. In essence, he declared that Madison should have delivered thecommission to Marbury, but then held that the section of the JudiciaryAct of 1789 that gave the Supreme Court the power to issue writs of mandamusexceeded the authority allotted the Court under Article III of the Constitution,and was therefore null and void. Thus he was able to chastise the Jeffersoniansand yet not create a situation in which a court order would be flouted.

The critical importance of Marbury is the assumption of several powersby the Supreme Court. One was the authority to declare acts of Congress,and by implication acts of the president, unconstitutional if they exceededthe powers granted by the Constitution. But even more important, the Courtbecame the arbiter of the Constitution, the final authority on what thedocument meant. As such, the Supreme Court became in fact as well as intheory an equal partner in government, and it has played that role eversince.

The Court would not declare another act of Congress unconstitutionaluntil 1857, and it has used that power sparingly. But through its roleas arbiter of the Constitution, it has, especially in the twentieth century,been the chief agency for the expansion of individual rights. (See PartV.)

For further reading: George L. Haskins and Herbert A. Johnson, Foundationsof Power: John Marshall, 1801-1815 (1981); Donald O. Dewey, Marshall v.Jefferson: The Political Background of Marbury v. Madison (1970).

Marbury v. Madison

Chief Justice Marshall delivered the opinion of the 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 showcause why a mandamus should not issue, directing him to deliver to WilliamMarbury 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. Thepeculiar delicacy of this case, the novelty of some of its circumstances,and the real difficulty attending the points which occur in it, requirea complete exposition of the principles on which the opinion to be givenby the court is founded. . . .

In the order in which the court has viewed this subject, the followingquestions 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 lawsof his country afford him a remedy?

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

The first object of inquiry is -- 1st. Has the applicant a right tothe commission he demands? . . .

It [is] decidedly the opinion of the court, that when a commission hasbeen signed by the president, the appointment is made; and that the commissionis complete, when the seal of the United States has been affixed to itby the secretary of state. . . .

To withhold his commission, therefore, is an act deemed by the courtnot warranted by law, but violative of a vested legal right.

This brings us to the second inquiry; which is 2dly. If he has a right,and that right has been violated, do the laws of his country afford hima remedy?

The very essence of civil liberty certainly consists in the right ofevery individual to claim the protection of the laws, whenever he receivesan injury. One of the first duties of government is to afford that protection.[The] government of the United States has been emphatically termed a governmentof 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.. . .

By the constitution of the United States, the President is investedwith certain important political powers, in the exercise of which he isto use his own discretion, and is accountable only to his country in hispolitical character, and to his own conscience. To aid him in the performanceof these duties, he is authorized to appoint certain officers, who actby his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may beentertained of the manner in which executive discretion may be used, stillthere exists, and can exist, no power to control that discretion. The subjectsare political. They respect the nation, not individual rights, and beingentrusted to the executive, the decision of the executive is conclusive.. . .

But when the legislature proceeds to impose on that officer other duties;when he is directed peremptorily to perform certain acts; when the rightsof individuals are dependent on the performance of those acts; he is sofar the officer of the law; is amenable to the laws for his conduct; andcannot at his discretion sport away the vested rights of others.

The conclusion from this reasoning is, that where the heads of departmentsare the political or confidential agents of the executive, merely to executethe will of the President, or rather to act in cases in which the executivepossesses a constitutional or legal discretion, nothing can be more perfectlyclear than that their acts are only politically examinable. But where aspecific duty is assigned by law, and individual rights depend upon theperformance of that duty, it seems equally clear, that the individual whoconsiders himself injured, has a right to resort to the laws of his countryfor a remedy. . . .

It is, then, the opinion of the Court [that Marbury has a] right tothe commission; a refusal to deliver which is a plain violation of thatright, for which the laws of his country afford him a remedy.

It remains to be enquired whether,

3dly. He is entitled to the remedy for which he applies. This dependson -- 1st. The nature of the writ applied for, and,

2dly. The power of this court.

1st. The nature of the writ. . . .

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 enquired,

Whether it can issue from this court.

The act to establish the judicial courts of the United States authorizesthe Supreme Court "to issue writs of mandamus in cases warranted bythe principles and usages of law, to any courts appointed, or persons holdingoffice, under the authority of the United States."

The Secretary of State, being a person holding an office under the authorityof 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 suchan officer, it must be because the law is unconstitutional, and thereforeincapable of conferring the authority, and assigning the duties which itswords purport to confer and assign.

The constitution vests the whole judicial power of the United Statesin one Supreme Court, and such inferior courts as congress shall, fromtime to time, ordain and establish. This power is expressly extended toall cases arising under the laws of the United States; and, consequently,in some form, may be exercised over the present case; because the rightclaimed is given by a law of the United States.

In the distribution of this power it is declared that "the SupremeCourt shall have original jurisdiction in all cases affecting ambassadors,other public ministers and consuls, and those in which a state shall bea 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, assigningoriginal jurisdiction to the Supreme Court, contains no negative or restrictivewords, the power remains to the legislature, to assign original jurisdictionto that court in other cases than those specified in the article whichhas been recited; provided those cases belong to the judicial power ofthe United States.

If it had been intended to leave it in the discretion of the legislatureto apportion the judicial power between the supreme and inferior courtsaccording to the will of that body, it would certainly have been uselessto have proceeded further than to have defined the judicial power, andthe tribunals in which it should be vested. The subsequent part of thesection is mere surplusage, is entirely without meaning, if such is tobe the construction. If congress remains at liberty to give this courtappellate jurisdiction, where the constitution has declared their jurisdictionshall be original; and original jurisdiction where the constitution hasdeclared it shall be appellate; the distribution of jurisdiction, madein the constitution, is form without substance.

Affirmative words are often, in their operation, negative of other objectsthan those affirmed; and in this case, a negative or exclusive sense mustbe given to them or they have no operation at all.

It cannot be presumed that any clause in the constitution is intendedto be without effect; and, therefore, such a construction is inadmissible,unless the words require it.

If the solicitude of the convention, respecting our peace with foreignpowers, induced a provision that the supreme court should take originaljurisdiction in cases which might be supposed to affect them; yet the clausewould have proceeded no further than to provide for such cases, if no furtherrestriction on the powers of congress had been intended. That they shouldhave appellate jurisdiction in all other cases, with such exceptions ascongress might make, is no restriction; unless the words be deemed exclusiveof original jurisdiction.

When an instrument organizing fundamentally a judicial system, dividesit into one supreme, and so many inferior courts as the legislature mayordain and establish; then enumerates its powers, and proceeds so far todistribute them, as to define the jurisdiction of the supreme court bydeclaring the cases in which it shall take original jurisdiction, and thatin others it shall take appellate jurisdiction; the plain import of thewords 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 anyother construction would render the clause inoperative, that is an additionalreason for rejecting such other construction, and for adhering to theirobvious meaning.

To enable this court, then, to issue a mandamus, it must be shown tobe an exercise of appellate jurisdiction, or to be necessary to enablethem to exercise appellate jurisdiction.

It has been stated at the bar that the appellate jurisdiction may beexercised in a variety of forms, and that if it be the will of the legislaturethat 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 revisesand corrects the proceedings in a cause already instituted, and does notcreate 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, isin 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 toexercise its appellate jurisdiction.

The authority, therefore, given to the Supreme Court, by the act establishingthe judicial courts of the United States, to issue writs of mandamus topublic officers, appears not to be warranted by the constitution; and itbecomes necessary to enquire whether a jurisdiction, so conferred, canbe exercised.

The question, whether an act, repugnant to the constitution, can becomethe law of the land, is a question deeply interesting to the United States;but happily, not of an intricacy proportioned to its interest. It seemsonly necessary to recognize certain principles, supposed to have been longand well established, to decide it.

That the people have an original right to establish, for their futuregovern-ment, such principles as, in their opinion, shall most conduce totheir own happiness, is the basis on which the whole American fabric hasbeen 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 whichthey proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assignsto 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. Thepowers of the legislature are defined and limited; and that those limitsmay not be mistaken, or forgotten, the constitution is written. To whatpurpose are powers limited, and to what purpose is that limitation committedto writing, if these limits may, at any time, be passed by those intendedto be restrained? The distinction between a government with limited andunlimited powers is abolished, if those limits do not confine the personson whom they are imposed, and if acts prohibited and acts allowed, areof equal obligation. It is a proposition too plain to be contested, thatthe constitution controls any legislative act repugnant to it; or, thatthe legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitutionis either a superior, paramount law, unchangeable by ordinary means, orit 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 actcontrary to the constitution is not law: if the latter part be true, thenwritten constitutions are absurd attempts, on the part of the people, tolimit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplatethem 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,conse-quently, to be considered, by this court, as one of the fundamentalprinciples of our society. It is not therefore to be lost sight of in thefurther 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 themto give it effect? Or, in other words, though it be not law, does it constitutea rule as operative as if it was a law? This would be to overthrow in factwhat was established in theory; and would seem, at first view, an absurditytoo gross to be insisted on. It shall, however, receive a more attentiveconsideration.

It is emphatically the province and duty of the judicial departmentto say what the law is. Those who apply the rule to particular cases, mustof necessity expound and interpret that rule. If two laws conflict witheach other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law andthe constitution apply to a particular case, so that the court must eitherdecide that case conformably to the law, disregarding the constitution;or conformably to the constitution, disregarding the law; the court mustdetermine which of these conflicting rules governs the case. This is ofthe very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitutionis superior to any ordinary act of the legislature, the constitution, andnot such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is tobe considered, in court, as a paramount law, are reduced to the necessityof maintaining that the 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 theoryof 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 narrowlimits. It is prescribing limits, and declaring that those limits may bepassed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvementon political institutions -- a written constitution -- would of itselfbe sufficient, in America, where written constitutions have been viewedwith so much reverence, for rejecting the construction. But the peculiarexpressions of the constitution of the United States furnish additionalarguments in favour of its rejection.

The judicial power of the United States is extended to all cases arisingunder the constitution.

Could it be the intention of those who gave this power, to say thatin using it the constitution should not be looked into? That a case arisingunder the constitution should be decided without examining the instrumentunder 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 reador to oey?

There are many other parts of the constitution which serve to illustratethis subject.

It is declared that "no tax or duty shall be laid on articles exportedfrom 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 berendered 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 postfacto 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 deaththose victims whom the constitution endeavors to preserve?

"No person," says the constitution, "shall be convictedof 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 thecourts. It prescribes, directly for them, a rule of evidence not to bedeparted from. If the legislature should change that rule, and declareone witness, or a confession out of court, sufficient for conviction, mustthe 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 arule for the government of courts, as well as of the legislature. Why otherwisedoes it direct the judges to take an oath to support it? This oath certainlyapplies, 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 demonstrativeof the legislative opinion on this subject. It is in these words: "Ido 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 faithfullyand impartially discharge all the duties incumbent on me as _____, accordingto the best of my abilities and understanding, agreeably to the constitution,and laws of the United States." Why does a Judge swear to dischargehis duties agreeably the constitution of the United States, if that constitutionforms no rule for his government? If it is closed upon him, and cannotbe 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 whatshall be the supreme law of the land, the constitution itself is firstmentioned; and not the laws of the United States generally, but those onlywhich shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United Statesconfirms and strengthens the principle, supposed to be essential to allwritten 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.

Source: 1 Cranch 137 (1803).