Sample BriefMarbury v. Madison, 5 U.S.

137, 1 Cranch 137 (1803)

FACTS: William Marbury was one of President Adams midnight appointments. All of the necessary
paperwork and procedures were completed to secure his appointment as a justice of the peace for
Washington, D.C., but Secretary of State John Marshall himself a midnight appointee to a somewhat
more exhalted judicial position failed to deliver his commission. Upon assuming the presidency,
Jefferson ordered his Secretary of State James Madison not to deliver the commission. Under
authority of the Judiciary Act of 1789, Marbury sued to ask the Supreme Court to issue a writ of
mandamus to force Madison to deliver the commission.
ISSUES: 1) Does Marbury have a right to this commission? 2) If he has a right, is there a remedy at law to
realize it? 3) If there is a remedy, is it one that can issue from the Supreme Court?
HELD: 1) Yes. 2) Yes. 3) No.
REASONING (Marshall for a 6-0 Court):
To 1. Because Marburys commission was signed by the President and sealed by the Secretary of
State, he has a legal right to the commission.
To 2. Because the signing and sealing completed the appointment process, denial of the commission
is a violation of the law. In a government of laws, a violation of the law creates a governmental
responsibility to remedy the violation. A writ of mandamus is such a remedy.
To 3. The Constitution is the supreme law of the land (Art. VI). As such, it is superior and
fundamental and paramount. It establishes certain limits on the power of the government it
creates. This includes the Congress. Without such limits, it would be giving to the legislature a
practical and real omnipotence. Thus, a legislative act contrary to the Constitution is not law.
It is emphatically the province and duty of the judicial department to say what the law is.
When a case comes to the Supreme Court, the Court must decide that case according to the law. If
ordinary (statutory) legislation conflicts with the limits imposed on government by the
Constitution, the fundamental law must govern the ordinary. If the legislature passed an act that the
Constitution forbids like a tax on interstate sales, an ex post facto law, or a treason conviction based
on something other than two witnesses or a confession in court the courts would have to strike it
down. Otherwise, the Constitution would not limit government. Courts have this power because they
decide cases under law; judges take an oath to uphold the Constitution, and this is part of that
function.
Following these principles, Marbury cannot receive a mandamus from the Court. The
Constitution creates two categories of jurisdiction for the Supreme Court original and appellate.
Congress, under Article III, has the power to regulate appellate jurisdiction; no such power, however,
is given for the regulation of original jurisdiction. The latter is completely and exclusively defined by
Article III it cannot be added to or taken away from. The provision of the Judiciary Act of 1789
which added matters of mandamus to the original jurisdiction of the Court, therefore, is beyond the
power given to Congress by the people in the Constitution. Having no legitimate jurisdiction over
this matter, the Court cannot provide Marbury with the remedy he seeks.
DECISION: Dismiss for want of jurisdiction.
DISSENTS: None
SIGNIFICANCE: Marshall, relying heavily on logical reasoning and little constitutional text, read the
power of judicial review over acts of the national government into American constitutional law. This
power was extended over the actions of state governments in Martin v. Hunters Lessee (1816) and state

courts in Cohens v. Virginia (1819), and is 1) the source of most of the authority the Court has come to
know, and 2) the focal point of the ultimate debate about the Courts proper constitutional role: should it
exercise this power frequently (activism) or sparingly (restraints).

Summary of Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803).

Facts
On his last day in office, President John Adams named forty-two justices of the peace and sixteen new
circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an attempt
by the Federalists to take control of the federal judiciary before Thomas Jefferson took office.
The commissions were signed by President Adams and sealed by acting Secretary of State John Marshall
(who later became Chief Justice of the Supreme Court and author of this opinion), but they were not
delivered before the expiration of Adamss term as president. Thomas Jefferson refused to honor the
commissions, claiming that they were invalid because they had not been delivered by the end of Adamss
term.
William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury
applied directly to the Supreme Court of the United States for a writ of mandamus to compel Jeffersons
Secretary of State, James Madison (D), to deliver the commissions. The Judiciary Act of 1789 had
granted the Supreme Court original jurisdiction to issue writs of mandamus to any courts appointed,
or persons holding office, under the authority of the United States.
Issues
1. Does Marbury have a right to the commission?
2. Does the law grant Marbury a remedy?
3. Does the Supreme Court have the authority to review acts of Congress and determine whether
they are unconstitutional and therefore void?
4. Can Congress expand the scope of the Supreme Courts original jurisdiction beyond what is
specified in Article III of the Constitution?
5. Does the Supreme Court have original jurisdiction to issue writs of mandamus?
Holding and Rule (Marshall)
1. Yes.

Marbury

has

right

to

the

commission.

The order granting the commission takes effect when the Executives constitutional power of
appointment has been exercised, and the power has been exercised when the last act required
from the person possessing the power has been performed. The grant of the commission to
Marbury became effective when signed by President Adams.
2. Yes. The law grants Marbury 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
protection.
Where a specific duty is assigned by law, and individual rights depend upon the performance of

that duty, the individual who considers himself injured has a right to resort to the law for a
remedy. The President, by signing the commission, appointed Marbury a justice of the peace in
the District of Columbia. 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.
Having this legal right 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 the country afford him a
remedy.
3. Yes. The Supreme Court has the authority to review acts of Congress and determine whether they
are
unconstitutional
and
therefore
void.
It is emphatically the 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 the rule. If two laws conflict
with each other, the Court must decide on the operation of each. If 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.
4. No. Congress cannot expand the scope of the Supreme Courts original jurisdiction beyond what
is
specified
in
Article
III
of
the
Constitution.
The Constitution states 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. 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, this section is mere surplusage
and is entirely without meaning. 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.
5. No. The Supreme Court does not have original jurisdiction to issue writs of mandamus.
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 is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a
cause already instituted, and does not create that case. 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 is therefore a matter of original
jurisdiction.
Disposition
Application for writ of mandamus denied. Marbury doesnt get the commission.