Marbury v.

Madison

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From Wikipedia, the free encyclopedia

Marbury v. Madison

Supreme Court of the United States

Argued February 11, 1803
Decided February 24, 1803

Full case name William Marbury v. James Madison,

Secretary of State of the United States

Citations 5 U.S. 137 (more)

1 Cranch 137; 2 L. Ed. 60; 1803 U.S.

LEXIS 352

Prior history Original action filed in U.S. Supreme

Court; order to show cause why writ
of mandamus should not issue,
December 1801

Subsequent None
history

Holding

Section 13 of the Judiciary Act of 1789 is

unconstitutional to the extent it purports to enlarge the
original jurisdiction of the Supreme Court beyond that
permitted by the Constitution. Congress cannot pass
laws that are contrary to the Constitution, and it is the
role of the Judicial system to interpret what the
Constitution permits.

Court membership

Chief Justice
John Marshall

Associate Justices
William Cushing William Paterson
Samuel Chase Bushrod Washington
Alfred Moore

Case opinions
 Majority Marshall, joined by Paterson, Chase,
Washington

Cushing and Moore took no part in the consideration or

decision of the case.

Laws applied

U.S. Const. arts. I, III; Judiciary Act of 1789 13

Marbury v. Madison, 5 U.S. 137 (1803), was a landmark United States Supreme Court case in which the
Court formed the basis for the exercise of judicial review in the United States under Article III of
the Constitution. The landmark decision helped define the boundary between the constitutionally
separate executive and judicialbranches of the American form of government.

The case resulted from a petition to the Supreme Court by William Marbury, who had been
appointed Justice of the Peace in the District of Columbia by President John Adams but
whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force the
new Secretary of State, James Madison, to deliver the documents. The Court, with John Marshall as
Chief Justice, found firstly that Madison's refusal to deliver the commission was both illegal and
correctible. Nonetheless, the Court stopped short of ordering Madison (by writ ofmandamus) to hand
over Marbury's commission, instead holding that the provision of the Judiciary Act of 1789that enabled
Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend
the Court's original jurisdiction beyond that which Article III established. The petition was therefore
denied.

Contents

[hide]

1Background of the case

o 1.1Status of the judicial power before Marbury

2Relevant law

3Issue

4Decision

5Subsequent developments

o 5.1Criticism

6See also

7Notes and references

8Further reading
 9External links

Background of the case

William Marbury

In the presidential election of 1800, Democratic-Republican Thomas Jeffersondefeated Federalist John

Adams, becoming the third President of the United States. Although the election was decided on
February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, outgoing president
Adams and theFederalist-controlled 6th Congress were still in power. During this lame-ducksession,
Congress passed the Judiciary Act of 1801. This Act modified theJudiciary Act of 1789 in establishing ten
new district courts, expanding the number of circuit courts from three to six, and adding additional
judges to each circuit, giving the President the authority to appoint Federal judges and justices of the
peace. The act also reduced the number of Supreme Court justices from six to five, effective upon the
next vacancy in the Court.[1][2]

On March 3, just before his term was to end, Adams, in an attempt to stymie the incoming Democratic-
Republican Congress and administration, appointed 16 Federalist circuit judges and 42 Federalist
justices of the peace to offices created by the Judiciary Act of 1801. These appointees, the infamous
"Midnight Judges", included William Marbury, a prosperous financier in Maryland. An ardent Federalist,
Marbury was active in Maryland politics and a vigorous supporter of the Adams presidency.[3] He had
been appointed to the position of justice of the peace in the District of Columbia. The term for a justice
of the peace was five years, and they were "authorized to hold courts and cognizance of personal
demands of the value of 20 dollars."[4]

On the following day, the appointments were approved en masse by the Senate; however, to go into
effect, the commissions had to be delivered to those appointed. This task fell to John Marshall, who,
even though recently appointed Chief Justice of the United States, continued as the acting Secretary of
State at President Adams's personal request.[5]

While a majority of the commissions were delivered, it proved impossible for all of them to be delivered
before Adams's term as president expired. As these appointments were routine in nature, Marshall
assumed the new Secretary of State James Madison would see they were delivered, since "they had
been properly submitted and approved, and were, therefore, legally valid appointments."[6] On March 4,
1801, Thomas Jefferson was sworn in as President. As soon as he was able, President Jefferson
ordered Levi Lincoln, who was the new administration's Attorney General and acting Secretary of State
until the arrival ofJames Madison, not to deliver the remaining appointments. Without the commissions,
the appointees were unable to assume the offices and duties to which they had been appointed. In
Jefferson's opinion, the undelivered commissions, not having been delivered on time, were void.[7]

The newly sworn-in Democratic-Republican 7th Congress immediately set about voiding the Judiciary
Act of 1801 with their own Judiciary Act of 1802 which reversed the act of 1801 so that the Judicial
branch once again operated under the dictates of the original Judiciary Act of 1789. In addition, it
replaced the Court's two annual sessions with one session to begin on the first Monday in February, and
"canceled the Supreme Court term scheduled for June of that year [1802] ... seeking to delay a ruling on
the constitutionality of the repeal act until months after the new judicial system was in operation."[8][9]

Status of the judicial power before Marbury

Secretary of State Madison was ordered by President Jefferson to withhold the commissions made at
the last minute by outgoing President Adams.

Sir Edward Coke

Main article: Judicial review in the United States

Although the power of judicial review is sometimes said to have originated with Marbury, the concept of
judicial review has older roots in the United States, and possibly in England as well. The idea is often
attributed to the English jurist Edward Coke and his opinion in Dr. Bonhams Case, 8 Co. Rep. 107a
(1610), although this attribution has been called "one of the most enduring myths of American
constitutional law and theory, to say nothing of history".[10] Bonham's Case was not mentioned
in Marbury v. Madison, and the Court later stated that Bonham's Case did not make common law
supreme over statutory law:

[N]otwithstanding what was attributed to Lord COKE in Bonham's Case, 8 Reporter, 115, 118a, the
omnipotence of parliament over the common law was absolute, even against common right and reason.
The actual and practical security for English liberty against legislative tyranny was the power of a free
public opinion represented by the commons.[11]

Coke's meaning has been disputed over the years, for example by scholars who contend that Coke only
meant to construe a statute without challenging Parliamentary sovereignty.[12] His remarks that seem
suggestive of judicial review are sometimes considered obiter dicta, rather than part of the rationale of
the case.[13]

Any notion that courts could declare statutes void was defeated in England with the Glorious Revolution
of 1688, when King James II was removed and the elected Parliament declared itself supreme. However,
it continued to be known in the American colonies and at the bars of young states, where Coke's books
were very influential. The doctrine was specifically enshrined in some state constitutions, and by 1803 it
had been employed in both State and Federal courts in actions dealing with state statutes, but only
insofar as the statutes conflicted with the language of state constitutions.[14][15]

A number of legal scholars argue that the power of judicial review in the United States
predated Marbury, and that Marbury was merely the first Supreme Court case to exercise a power that
already existed and was acknowledged. These scholars point to statements about judicial review made
in the Constitutional Convention and the state ratifying conventions, statements about judicial review in
publications debating ratification, and court cases before Marbury that involved judicial review.[16]

At the Constitutional Convention in 1787, there were a number of references to judicial review. Fifteen
delegates made statements about the power of the federal courts to review the constitutionality of
laws, with all but two of them supporting the idea.[17]

Likewise, at the state ratifying conventions, over two dozen delegates in at least seven states indicated
that under the Constitution, the federal courts would have the power to declare statutes
unconstitutional.[18] Professors Saikrishna Prakash and John Yoo point out, with respect to the
ratification of the Constitution, that "no scholar to date has identified even one participant in the
ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes.
This silence in the face of the numerous comments on the other side is revealing."[19]

The concept of judicial review was discussed in The Federalist Papers. Alexander Hamilton asserted
in Federalist No. 78 that under the Constitution, the federal courts would have not just the power, but
the duty, to examine the constitutionality of statutes:

[T]he courts were designed to be an intermediate body between the people and the legislature, in
order, among other things, to keep the latter within the limits assigned to their authority. The
interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and
must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its
meaning, as well as the meaning of any particular act proceeding from the legislative body. If there
should happen to be an irreconcilable variance between the two, that which has the superior obligation
and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred
to the statute, the intention of the people to the intention of their agents.[20]

The opponents to ratification, known as Anti-federalists, agreed that the federal courts would have the
power to declare statutes unconstitutional, but were concerned that this would give the federal courts
too much power. Robert Yates argued: "The supreme court then have a right, independent of the
legislature, to give a construction to the constitution and every part of it, and there is no power
provided in this system to correct their construction or do it away. If, therefore, the legislature pass any
laws, inconsistent with the sense the judges put upon the constitution, they will declare it void."[21]

A number of courts engaged in judicial review before Marbury was decided. At the time of
the Constitutional Convention, there had been cases in the state courts of at least seven states involving
judicial review of state statutes.[22] Between the ratification of the Constitution in 1788 and the Supreme
Court's decision in Marbury in 1803, judicial review was used a number of times in both state and
federal courts. One scholar counted thirty-one cases during this period in which courts found statutes
unconstitutional, concluding: "The sheer number of these decisions not only belies the notion that the
institution of judicial review was created by Chief Justice Marshall in Marbury, it also reflects widespread
acceptance and application of the doctrine."[23]

Scholars have pointed out the Supreme Court itself already had engaged in judicial review
before Marbury, although it had not struck down the statute in question because it concluded that the
statute was constitutional. In Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), the Court upheld a
federal tax on carriages against a claim that the tax violated the "direct tax" provision of the
Constitution.[24] Therefore, the concept of judicial review was familiar beforeMarbury.

However, it is important to note that nothing in the text of the Constitution explicitly authorized the
power of judicial review, despite persistent fears voiced by Anti-federalists over the power of the new
Federal court system:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws
of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases
affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime
Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two
or more States; between a State and Citizens of another State, between Citizens of different States,
between Citizens of the same State claiming Lands under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens or Subjects.

U.S. Constitution, Article III, Section 2, Clause 1

Relevant law

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall
be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned
[within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction,
both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

U.S. Constitution, Article III, Section 2, Clause 2

The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several
states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the
district courts [...] and writs of mandamus [...] to any courts appointed, or persons holding office, under
the authority of the United States.

Judiciary Act of 1789, 13

Issue

Inscription on the wall of the Supreme Court Buildingfrom Marbury v. Madison, in which Chief Justice
John Marshall outlined the concept of judicial review.

There are three ways a case can be heard in the Supreme Court: (1) filing directly in the Supreme Court;
(2) filing in a lower federal court, such as a district court, and appealing all the way up to the Supreme
Court; (3) filing in a state court, appealing all the way up through the state's highest courts, and then
appealing to the Supreme Court on an issue of federal law. The first is an exercise of the Court's original
jurisdiction; the second and third are exercises of the Supreme Court'sappellate jurisdiction.

Because Marbury filed his petition for the writ of mandamus directly in the Supreme Court, the Court
needed to be able to exercise original jurisdiction over the case in order to have the power to hear it.

Marbury's argument is that in the Judiciary Act of 1789, Congress granted the Supreme Court original
jurisdiction over petitions for writs of mandamus. This raises several issues that the Supreme Court had
to address:

Does Article III of the Constitution create a floor for original jurisdiction, which Congress can add
to, or does it create an exhaustive list that Congress can't modify at all?

If Article III's original jurisdiction is an exhaustive list, but Congress tries to modify it anyway,
who wins that conflict, Congress or the Constitution?

And, more importantly, who is supposed to decide who wins?

In its answer to this last question, the Supreme Court formalizes the notion of judicial review. In short,
the constitutional issue on which Marbury v. Madison was decided was whether Congress could expand
the original jurisdiction of the Supreme Court.[25]
Decision

An engraving of Justice Marshall made by Charles-Balthazar-Julien Fevret de Saint-Mmin in 1808.

Draft of Motion Rule for Marbury v. Madison

Draft of Motion Rule for Marbury v. Madison, Page 2

On February 24, 1803, the Court rendered a unanimous (40) decision,[26] that Marbury had the right to
his commission but the court did not have the power to force Madison to deliver the commission. Chief
Justice Marshall wrote the opinion of the court. Marshall presented the case as raising three distinct
questions:

Did Marbury have a right to the commission?

Do the laws of the country give Marbury a legal remedy?

Is asking the Supreme Court for a writ of mandamus the correct legal remedy?[27]

Marshall quickly answered the first two questions affirmatively. He found that the failure to deliver the
commission was "violative of a vested legal right."

In deciding whether Marbury had a remedy, Marshall stated: "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 appellation if the laws furnish no remedy for the violation of a vested legal right." One of the key
legal principles on which Marbury relies is the notion that for every violation of a vested legal right,
there must be a legal remedy. Marshall next described two distinct types of Executive actions: political
actions, where the official can exercise discretion, and purely ministerial functions, where the official is
legally required to do something. Marshall found that delivering the appointment to Marbury was a
purely ministerial function required by law, and therefore the law provided him a remedy.

A federal court has a "special obligation to 'satisfy itself not only of its own jurisdiction, but also that of
the lower courts in a cause under review.'"[28] If a court does not have the power to hear a case, it will
not issue dicta. Consequently, with exceptions not applicable here, a federal court must decide whether
it has jurisdiction before discussing the merits of the case.[29] Chief Justice Marshall, however, did not
address jurisdictional issues until addressing the first two questions presented above. Because of the
canon of constitutional avoidance (i.e., where a statute can fairly be interpreted so as to avoid a
constitutional issue, it should be so interpreted), courts generally deal with the constitutional issues only
if necessary. In this case, the jurisdictional issue was a constitutional one.[30]

In analyzing the third question, Marshall divided the question further, asking if a writ of mandamus was
the correct means by which to restore Marbury to his right, and if so, whether the writ Marbury sought
could issue from the Supreme Court. Concluding quickly that since a writ of mandamus, by definition,
was the correct judicial means to order an official of the United States (in this case, the Secretary of
State) to do something required of him (in this case, deliver a commission), Marshall devotes the
remainder of his inquiry at the second part of the question: "Whether it [the writ] can issue from this
court."

Marshall first examined the Judiciary Act of 1789 and determined that the Act purported to give the
Supreme Court original jurisdiction over writs of mandamus. Marshall then looked to Article III of the
Constitution, which defines the Supreme Court's original and appellate jurisdictions (see Relevant
Law above). Marbury had argued that the Constitution was only intended to set a floor for original
jurisdiction that Congress could add to. Marshall disagreed and held that Congress does not have the
power to modify the Supreme Court's original jurisdiction. Consequently, Marshall found that the
Constitution and the Judiciary Act conflict.

This conflict raised the important question of what happens when an Act of Congress conflicts with the
Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law
and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In
support of this position Marshall looked to the nature of the written Constitutionthere would be no
point of having a written Constitution if the courts could just ignore it. "To what purpose are powers
limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be
passed by those intended to be restrained?"[31] Marshall also argued that the very nature of the judicial
function requires courts to make this determination. Since it is a court's duty to decide cases, courts
have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other,
a court must decide which law applies.[32] Finally, Marshall pointed to the judge's oath requiring them to
uphold the Constitution, and to theSupremacy Clause of the Constitution, which lists the "Constitution"
before the "laws of the United States." Part of the core of this reasoning is found in the following
statements from the decision:

It is emphatically the province and duty of the Judicial Department [the judicial branch] 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 [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the
Constitution apply to a particular case, so that the Court must either decide that case conformably to
the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the
Court must determine which of these conflicting rules governs the case. This is of the very essence of
judicial duty. If, then, the 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.

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 [e.g., the statute or treaty].

This doctrine would subvert the very foundation of all written constitutions.[33]

"In denying his request, the Court held that it lacked jurisdiction because Section 13 of the Judiciary Act
passed by Congress in 1789, which authorized the Court to issue such a writ, was unconstitutional and
thus invalid."[34]

Subsequent developments

Marbury never became a Justice of the Peace in the District of Columbia.[35] His case marked the point at
which the Supreme Court adopted a monitoring role over government actions.[36]

Criticism

Jefferson disagreed with Marshall's reasoning in this case:

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very
dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our
judges are as honest as other men, and not more so. They have, with others, the same passions for
party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in
office for life, and not responsible, as the other functionaries are, to the elective control. The
Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the
corruptions of time and party, its members would become despots. It has more wisely made all the
departments co-equal and co-sovereign within themselves.[37][38][39]

Some legal scholars[who?] have questioned the legal reasoning of Marshall's opinion. They argue that
Marshall selectively quoted the Judiciary Act of 1789, interpreting it to grant the Supreme Court the
power to hear writs of mandamus on original jurisdiction.[40] These scholars argue that there is little
connection between the notion of original jurisdiction and the Supreme Court, and note that the Act
seems to affirm the Court's power to exercise only appellate jurisdiction.[41] Furthermore, it has been
argued that the Supreme Court should have been able to issue the writ on original jurisdiction based on
the fact that Article III of the Constitution granted it the right to review on original jurisdiction "all cases
affecting ... public ministers and consuls," and that James Madison, Secretary of State at the time and
defendant of the suit, should have fallen into that category of a "public minister [or] consul."[42]

Questions have also frequently been raised about the logic of Marshall's argument for judicial review,
for example by Alexander Bickel in his book The Least Dangerous Branch.[43]

Marbury has also been criticized[by whom?] on the grounds that it was improper for the Court to consider
any issues beyond jurisdiction. After concluding that the Court lacked jurisdiction in the case, the further
review regarding the substantive issues presented was arguably improper.[44] Also, it has been argued
that Justice Marshall should have recused himself on the grounds that he was still acting Secretary of
State at the time the commissions were to be delivered and it was his brother, James Marshall, who was
charged with delivering a number of the commissions.[45]

Because the Constitution lacks a clear statement authorizing the Federal courts to nullify the acts of
coequal branches, critics contend that the argument for judicial review must rely on a significant gloss
on the Constitution's terms.[citation needed] Despite such criticisms of Marbury v. Madison, judicial review
has been accepted in the American legal community.

On the other hand, the Constitution, unlike the Articles of Confederation, created an independent
judiciary, and gave it power to resolve matters arising under the Constitution, controversies between
two states, and disputes between the federal government and a state, suggesting that the Framers of
the Constitution intended the court to act as, in effect, an arbitrator, to whose decisions the parties
appearing before it would be bound.

See also

Australian Communist Party v Commonwealth

Judicial review in the United States

List of United States Supreme Court cases, volume 5

Hylton v. United States

Calder v. Bull

Stuart v. Laird (1803)

United States v. More (1805)

Notes and references

1. Jump up^ Federal Judicial History, The Judiciary Act of 1801 Historical Note 2 Stat.89

2. Jump up^ Judiciary Act of 1801

3. Jump up^ Mark Carlton Miller (2009). The View of the Courts from the Hill: Interactions
Between Congress and the Federal Judiciary. University of Virginia Press. p. 44.

4. Jump up^ Ch.4, Sec. 4, Judiciary Act of 1801

5. Jump up^ Smith, Jean Edward (1996). John Marshall: Definer of a Nation. New York:
Henry Holt & Company; New York. p. 524. ISBN 978-0-8050-1389-4.

6. Jump up^ Sec. 3d, Marbury v. Madison,AMDOCS: www.vlib.us.

7. Jump up^ Pohlman, H. L. (2005). Constitutional Debate in Action: Governmental Powers.

Lanham: Rowman & Littlefield. p. 21. ISBN 0-7425-3593-2.

8. Jump up^ Federal Judicial History, The Judiciary Act of 1802 Historical Note2 Stat. 156

9. Jump up^ The Supreme Court in United States history, Volume 1. By Charles Warren.
Little, Brown, 1922. p 222
10. Jump up^ McDowell, Gary L. (1993). "Coke, Corwin and the Constitution: The 'Higher
Law Background' Reconsidered". The Review of Politics. Cambridge University
Press. 55 (3): 393. doi:10.1017/s0034670500017605. ISSN 0034-6705.

11. Jump up^ Hurtado v. California, 110 U.S. 516 (1884)

12. Jump up^ Edlin, Douglas (2008). Judges and unjust laws: common law constitutionalism
and the foundations of judicial review. University of Michigan Press. p. 7. ISBN 0-472-
11662-2.

13. Jump up^ Schwartz, Bernard (1968). Commentary on the Constitution of the United
States. MacMillan. p. 50. ISBN 0-8377-1108-8.

14. Jump up^ (See, e.g., Bayard v. Singleton, 1 NC (Martin) 5 (1787); Whittington v. Polk, 1
H. & J. 236 (Md.Gen. 1802) (Samuel Chase, J.); State v. Parkhurst, 9 N.J.L. 427 (N.J.
1802); Respublica v. Duquet, 2 Yeates 493 (Pa. 1799); Williams Lindsay v. East Bay Street
Comrs, 2 Bay (S.C.L.) 38 S.C.Const.App. 1796)(Thomas Waties, J.).; Ware v. Hylton, 3
Dallas (3 U.S.) 199 (1796); Calder v. Bull, 3 Dallas (3 U.S.) 386 (1798); Cooper v. Telfair, 4
Dallas (4 U.S.) 14 (1800); Vanhornes Lessee v. Dorrance, 28 F. Cas. 1012, 2 Dallas (2 U.S.)
304; 1 L. Ed. 391; C. Pa. 1795).)

15. Jump up^ Fletcher, George P.; Sheppard, Steve (2004). American Law in Global
Perspective: The Basics. Oxford University Press. pp. 132134. ISBN 0-19-516723-6.

16. Jump up^ For a more detailed discussion of the status of judicial review beforeMarbury,
see Judicial review in the United States.

17. Jump up^ Prakash, Saikrishna, and Yoo, John, "The Origins of Judicial Review," 70 U.
Chicago Law Review 887, 952 (2003).

18. Jump up^ Ibid., p. 965.

19. Jump up^ Ibid., p. 974.

20. Jump up^ Full text of Federalist No. 78 from thomas.loc.gov

21. Jump up^ Anti-Federalist No. 78

22. Jump up^ Prakash and Yoo, "The Origins of Judicial Review," 70 U. Chicago Law Review
at 93339.

23. Jump up^ See Treanor, William, "Judicial Review Before Marbury," 58 Stanford Law
Review 455, 45758 (2005).

24. Jump up^ Professor Jack Rakove wrote: "Hylton v. United States was manifestly a case
of judicial review of the constitutionality of legislation." See Rakove, Jack, "The Origins
of Judicial Review: A Plea for New Contexts," 49 Stanford Law Review 1031, 103041
(1997).

25. Jump up^ David P. Currie (1997). The Constitution in Congress: The Federalist Period
1789-1801. University of Chicago Press. p. 53.
26. Jump up^ Due to illness, Justices William Cushing and Alfred Moore did not sit for oral
argument or participate in the Court's decision.

27. Jump up^ [1] Lecture: starting at time 16:16, these three questions are described by
the teacher almost verbatim to this article, and this school video is in regards to judicial
review.

28. Jump up^ Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)
(quotingMitchell v. Maurer, 293 U.S. 237, 244 (1934)); accord Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 94 (1998)

29. Jump up^ See Irving v. United States, 162 F.3d 154, 160 (1st Cir. 1998) (en banc),
admonishing that the federal courts "have an affirmative obligation to examine
jurisdictional concerns on their own initiative" even if the parties have neglected
them; Berner v. Delahanty, 129 F.3d 20, 23 (1st Cir. 1997), noting "that a court should
first confirm the existence of rudiments such as jurisdiction . . . before tackling the
merits of a controverted case").

30. Jump up^ Supreme Court History: The Court and Democracy, Marbury v. Madison,
pbs.org, retrieved 2/12/07

31. Jump up^ 5 U.S. (1 Cranch) at 176.

32. Jump up^ 5 U.S. (1 Cranch) at 177.

33. Jump up^ 5 U.S. at 17778.

34. Jump up^ Marbury v. Madison. In Encyclopaedia Britannica.

35. Jump up^ Henretta, James A.; David Brody; Lynn Dumenil (2007). America's History:
Volume 1: To 1877 (6th ed.). Boston: Bedford/St. Martin's. pp. 218219.ISBN 978-0-312-
45285-8.

36. Jump up^ Laura Langer, Judicial Review in State Supreme Courts: A Comparative
Study (Albany: State University of New York Press, 2002), p. 4

37. Jump up^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis
(September 28, 1820).

38. Jump up^ James Taranto, Leonard Leo (2004). Presidential Leadership. Wall Street
Journal Books. ISBN 978-0-7432-7226-1. Retrieved 2008-10-20.

39. Jump up^ Thomas Jefferson (1830). Memoir, correspondence, and miscellanies, from the
papers of Thomas Jefferson. Gray and Bowen. pp. 372375.

40. Jump up^ Reinstein, Robert J. (2004-04-01). "Marbury's Myths: John Marshall, Judicial
Review and the Rule of Law". bepress Legal Series. Working Paper 230.

41. Jump up^ Full text of the Judiciary Act of 1789

 42. Jump up^ Stone, Geoffrey R. (2005). Constitutional Law (5 ed.). New York: Aspen
Publishers. pp. 2951. ISBN 0-7355-5014-X.

43. Jump up^ Bickel, Alexander (1962). The Least Dangerous Branch. Indianapolis: Bobbs-
Merrill. ISBN 978-0-300-03299-4. Retrieved May 26, 2011.

44. Jump up^ Chemerinsky, Erwin (2006). Constitutional Law: Principles and Policies (3rd
ed.). New York: Aspen Publishers. p. 41. ISBN 0-7355-5787-X.

45. Jump up^ Sullivan, Kathleen M.; Gunther, Gerald (2007). Constitutional Law. New York:
Foundation Press. ISBN 978-1-59941-246-7.

Further reading

Smith, Jean Edward (1996). John Marshall: Definer Of A Nation. Owl Books. ISBN 0-8050-5510-X.

Smith, Jean Edward (1989). The Constitution And American Foreign Policy. St. Paul, MN: West
Publishing Company. ISBN 0-314-42317-6.

Nelson, William E. (2000). Marbury v. Madison: The Origins and Legacy of Judicial Review.
University Press of Kansas. ISBN 0-7006-1062-6. (One introduction to the case)

Clinton, Robert Lowry (1991). Marbury v. Madison and Judicial Review. University Press of
Kansas. ISBN 0-7006-0517-7. (Claims that it is a mistake to read the case as claiming a judicial
power to tell the President or Congress what they can or cannot do under the Constitution.)

Irons, Peter (1999). A People's History of the Supreme Court. Penguin Books. pp. 104
107. ISBN 0-14-029201-2.

Newmyer, R. Kent (2001). John Marshall and the Heroic Age of the Supreme Court. Louisiana
State University Press. ISBN 0-8071-3249-7.

James M. O'Fallon, The Case of Benjamin More: A Lost Episode in the Struggle over Repeal of the
1801 Judiciary Act, 11 Law & Hist. Rev. 43 (1993).

Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases.
Boston: Beacon Press. pp. 116. ISBN 978-0-8070-0036-6.

Sloan, Cliff; McKean, David (2009). The Great Decision: Jefferson, Adams, Marshall and the
Battle for the Supreme Court. New York, NY: PublicAffairs.ISBN 1-58648-426-5.

External links

Wikisource has
original text related
to this article:

Marbury v. Madison

Text of Marbury v. Madison, 5 U.S. 137 (1803) is available from: Findlaw Justia LII

Primary Documents in American History: Marbury v. Madison from the Library of Congress
 "John Marshall, Marbury v. Madison, and Judicial ReviewHow the Court Became
Supreme" Lesson plan for grades 9-12 from National Endowment for the Humanities

The 200th Anniversary of Marbury v. Madison: The Reasons We Should Still Care About the
Decision, and The Lingering Questions It Left Behind

The Establishment of Judicial Review

The 200th Anniversary of Marbury v. Madison: The Supreme Court's First Great Case

Case Brief for Marbury v. Madison at Lawnix.com

The short film Marbury v. Madison (1977) is available for free download at the Internet Archive

"Supreme Court Landmark Case Marbury v. Madison" from C-SPAN's Landmark Cases: 12
Historic Supreme Court Decisions

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Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), is a landmark case in United States law and the basis for
the exercise of judicial review of Federal statutes by the United States Supreme Court under Article Three of
the United States Constitution.

Court Documents
Opinion of the Court

Supreme Court of the United States

5 U.S. 137

MARBURY v. MADISON

Argued: February 11, 1803 --- Decided: February 24, 1803

The clerks of the Department of State of the United States may be called upon to give evidence of
transactions in the Department which are not of a confidential character.

The Secretary of State cannot be called upon as a witness to state transactions of a confidential
nature which may have occurred in his Department. But he may be called upon to give testimony of
circumstances which were not of that character.

Clerks in the Department of State were directed to be sworn, subject to objections to questions upon
confidential matters.

Some point of time must be taken when the power of the Executive over an officer, not removable at
his will, must cease. That point of time must be when the 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. This last act is the signature of the commission.

If the act of livery be necessary to give validity to the commission of an officer, it has been delivered
when executed, and given to the Secretary of State for the purpose of being sealed, recorded, and
transmitted to the party.

In cases of commissions to public officers, the law orders the Secretary of State to record them.
When, therefore, they are signed and sealed, the order for their being recorded is given, and,
whether inserted inserted into the book or not, they are recorded.

When the heads of the departments of the Government are the political or confidential officers 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 politically examinable. But where a specific duty is assigned by law, and
individual rights depend upon the performance of that duty, it seems equally clear that the individual
who considers himself injured has a right to resort to the laws of his country for a remedy.

The President of the United States, by signing the commission, appointed Mr. Marbury a justice of
the peace for the County of Washington, in the District of Columbia, and 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; and the appointment conferred on him a legal
right to the office for the space of five years. 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.

To render a mandamus a proper remedy, the officer to whom it is directed must be one to whom, on
legal principles, such writ must be directed, and the person applying for it must be without any other
specific remedy.

Where a commission to a public officer has been made out, signed, and sealed, and is withheld from
the person entitled to it, an action of detinue for the commission against the Secretary of State who
refuses to deliver it is not the proper remedy, as the judgment in detinue is for the thing itself, or its
value. The value of a public office, not to be sold, is incapable of being ascertained. It is a plain case
for a mandamus, either to deliver the commission or a copy of it from the record.

To enable the Court to issue a mandamus to compel the delivery of the commission of a public office
by the Secretary of State, it must be shown that it is an exercise of appellate jurisdiction, or that it 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 the cause.

The authority given to the Supreme Court by the act establishing the judicial system of the United
States to issue writs of mandamus to public officers appears not to be warranted by the Constitution.

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.

At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and
William Harper, by their counsel, [p138] severally moved the court for a rule to James Madison,
Secretary of State of the United States, to show cause why a mandamus should not issue
commanding him to cause to be delivered to them respectively their several commissions as justices
of the peace in the District of Columbia. This motion was supported by affidavits of the following
facts: that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late President of
the United States, nominated the applicants to the Senate for their advice and consent to be
appointed justices of the peace of the District of Columbia; that the Senate advised and consented to
the appointments; that commissions in due form were signed by the said President appointing them
justices, &c., and that the seal of the United States was in due form affixed to the said commissions
by the Secretary of State; that the applicants have requested Mr. Madison to deliver them their said
commissions, who has not complied with that request; and that their said commissions are withheld
from them; that the applicants have made application to Mr. Madison as Secretary of State of the
United States at his office, for information whether the commissions were signed and sealed as
aforesaid; that explicit and satisfactory information has not been given in answer to that inquiry,
either by the Secretary of State or any officer in the Department of State; that application has been
made to the secretary of the Senate for a certificate of the nomination of the applicants, and of the
advice and consent of the Senate, who has declined giving such a certificate; whereupon a rule was
made to show cause on the fourth day of this term. This rule having been duly served, [p139]

Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court, and were
required to give evidence, objected to be sworn, alleging that they were clerks in the Department of
State, and not bound to disclose any facts relating to the business or transactions of the office.

The court ordered the witnesses to be sworn, and their answers taken in writing, but informed them
that, when the questions were asked, they might state their objections to answering each particular
question, if they had any.

Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated in the
affidavits occurred, was called upon to give testimony. He objected to answering. The questions
were put in writing.

The court said there was nothing confidential required to be disclosed. If there had been, he was not
obliged to answer it, and if he thought anything was communicated to him confidentially, he was not
bound to disclose, nor was he obliged to state anything which would criminate himself.

The questions argued by the counsel for the relators were, 1. Whether the Supreme Court can
award the writ of mandamus in any case. 2. Whether it will lie to a Secretary of State, in any case
whatever. 3. Whether, in the present case, the Court may award a mandamus to James Madison,
Secretary of State.
Article Three of the United States Constitution
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Article Three of the United States Constitution establishes the judicial branch of the federal
government. The judicial branch comprises the Supreme Court of the United States and lower courts
as created by Congress.

Contents
[hide]

1Section 1: Federal courts

o 1.1Number of courts
o 1.2Tenure
o 1.3Salaries
2Section 2: Judicial power, jurisdiction, and trial by jury
o 2.1Clause 1: Cases and controversies
o 2.2Eleventh Amendment and state sovereign immunity
o 2.3Clause 2: Original and appellate jurisdiction
o 2.4Judicial review
o 2.5Clause 3: Federal trials
3Section 3: Treason
4See also
5References
6Bibliography
7External links

Section 1: Federal courts[edit]

Section 1 vests the judicial power of the United States in federal courts, requires a supreme court,
allows inferior courts, requires good behavior tenure for judges, and prohibits decreasing the salaries
of judges.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated
Times, receive for their Services a Compensation which shall not be diminished during their
Continuance in Office.
Number of courts[edit]
Article III authorizes and sanctions the establishment of (only) one Supreme Court, but does not set
the number of justices that must be appointed to it; though Article I, Section 3, Clause 6 refers to
a Chief Justice (who shall preside over the impeachment trial of a President). The number of justices
has been fixed by statute. See, Title 28, United States Code, Section 1 (28 U.S.C. 1).[1] At present
there are eight justices on the Supreme Court one chief justice and seven associate justices with
an additional vacant associate justice seat, thus making a total of 9 seats on the court. This total has
been established by statute.

Proposals to divide the Supreme Court into separate panels have been made, but all have failed.
Since all such proposals have failed, the Supreme Court has never ruled on the constitutionality of
such a division. However, Chief Justice Charles Evans Hughes wrote, "the Constitution does not
appear to authorize two or more Supreme Courts functioning in effect as separate courts."

The Supreme Court is the only federal court that is explicitly mandated by the Constitution. During
the Constitutional Convention, a proposal was made for the Supreme Court to be the only federal
court, having both original jurisdiction and appellate jurisdiction. This proposal was rejected in favor
of the provision that exists today. Under this provision, the Congress may create inferior (i.e., lower)
courts under both Article III, Section 1, and Article I, Section 8. The Article IIIcourts, which are also
known as "constitutional courts", were first created by the Judiciary Act of 1789. Article I courts,
which are also known as "legislative courts", consist of regulatory agencies, such as the United
States Tax Court. Article III courts are the only ones with judicial power, and so decisions of
regulatory agencies remain subject to review by Article III courts. However, cases not requiring
"judicial determination" may come before Article I courts. In the case of Murray's Lessee v. Hoboken
Land & Improvement Co. 59 U.S. 272 (1855), the Supreme Court ruled that cases involving "a suit at
the common law, or in equity, or admiralty" inherently involve judicial determination and must come
before Article III courts. Other cases, such as bankruptcy cases, have been held not to involve
judicial determination, and may therefore go before Article I courts. Similarly, several courts in the
District of Columbia, which is under the exclusive jurisdiction of the Congress, are Article I courts
rather than Article III courts. This article was expressly extended to the United States District
Court forthe District of Puerto Rico by the U.S. Congress through Federal Law 89-571, 80 Stat. 764,
signed by President Lyndon B. Johnson in 1966. This transformed the article IV United States
territorial court in Puerto Rico, created in 1900, to an Article III federal judicial district court.

The Judicial Procedures Reform Bill of 1937frequently called the court-packing plan,[2] was a
legislative initiative to add more justices to the Supreme Court proposed by U.S. President Franklin
Roosevelt shortly after his victory in the 1936 presidential election. Although the bill aimed generally
to overhaul and modernize all of the federal court system, its central and most controversial
provision would have granted the President power to appoint an additional Justice to the U.S.
Supreme Court for every sitting member over the age of 70, up to a maximum of six.

The Constitution is silent when it comes to judges of courts which have been abolished.
The Judiciary Act of 1801 increased the number of courts to permit the Federalist President John
Adams to appoint a number of Federalist judges before Thomas Jefferson took office. When
Jefferson became President, the Congress abolished several of these courts and made no provision
for the judges of those courts. Judicial code of 1911 abolished "circuit riding" and transferred the
circuit courts authority and jurisdiction to the district courts.
Tenure[edit]
The Constitution provides that judges "shall hold their Offices during good Behavior." The term "good
behavior" is interpreted to mean that judges may serve for the remainder of their lives, although they
may resign or retire voluntarily. A judge may also be removed by impeachment and conviction by
congressional vote (hence the term good behavior); this has occurred fourteen times. Three other
judges, Mark W. Delahay,[3] George W. English,[4] and Samuel B. Kent,[5] chose to resign rather than
go through the impeachment process.
Salaries[edit]
The compensation of judges may not be decreased, but may be increased, during their continuance
in office.

Section 2: Judicial power, jurisdiction, and trial by jury[edit]

Section 2 delineates federal judicial power, and brings that power into execution by
conferring original jurisdiction and also appellate jurisdiction upon the Supreme Court. Additionally,
this section requires trial by jury in all criminal cases, except impeachment cases.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or which shall be made, under their Authority;to all
Cases affecting Ambassadors, other public Ministers and Consuls;to all Cases of admiralty and
maritime Jurisdiction;to Controversies to which the United States shall be a Party;to
Controversies between two or more States;between a State and Citizens of another State;
between Citizens of different States;between Citizens of the same State claiming Lands under
Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens
or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State
shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make.

Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in
the State where the said Crimes shall have been committed; but when not committed within any
State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Clause 1: Cases and controversies[edit]
Main article: Case or Controversy Clause

Clause 1 of Section 2 authorizes the federal courts to hear actual cases and controversies only.
Their judicial power does not extend to cases which are hypothetical, or which are proscribed due
to standing, mootness, or ripeness issues. Generally, a case or controversy requires the presence of
adverse parties who have a genuine interest at stake in the case. In Muskrat v. United
States, 219 U.S. 346 (1911), the Supreme Court denied jurisdiction to cases brought under a statute
permitting certain Native Americans to bring suit against the United States to determine the
constitutionality of a law allocating tribal lands. Counsel for both sides were to be paid from the
federal Treasury. The Supreme Court held that, though the United States was a defendant, the case
in question was not an actual controversy; rather, the statute was merely devised to test the
constitutionality of a certain type of legislation. Thus the Court's ruling would be nothing more than
an advisory opinion; therefore, the court dismissed the suit for failing to present a "case or
controversy."

A significant omission is that although Clause 1 provides that federal judicial power shall extend to
"the laws of the United States," it does not also provide that it shall extend to the laws of
the several or individual states. In turn, the Judiciary Act of 1789 and subsequent acts never granted
the U.S. Supreme Court the power to review decisions of state supreme courts on pure issues of
state law. It is this silence which tacitly made state supreme courts the final expositors of the
common law in their respective states. They were free to diverge from English precedents and from
each other on the vast majority of legal issues which had never been made part of federal law by the
Constitution, and the U.S. Supreme Court could do nothing about that, as it would ultimately
concede in Erie Railroad Co. v. Tompkins (1938). By way of contrast, other English-speaking
federations like Australia and Canada never adopted the Erie doctrine. That is, their highest courts
have always possessed plenary power to impose a uniform nationwide common law upon all lower
courts and never adopted the strong American distinction between federal and state common law.
Eleventh Amendment and state sovereign immunity[edit]
Main articles: Eleventh Amendment to the United States Constitution and Sovereign immunity in the
United States

In Chisholm v. Georgia, 2 U.S. 419 (1793), the Supreme Court ruled that Article III, Section 2
abrogated the States sovereign immunity and authorized federal courts to hear disputes between
private citizens and States. This decision was overturned by the Eleventh Amendment, which was
passed by the Congress on March 4, 1794 1 Stat. 402 and ratified by the states on February 7,
1795. It prohibits the federal courts from hearing any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.[6]
Clause 2: Original and appellate jurisdiction[edit]
See also: Jurisdiction stripping

Clause 2 of Section 2 provides that the Supreme Court has original jurisdiction in cases affecting
ambassadors, ministers and consuls, and also in those controversies which are subject to federal
judicial power because at least one state is a party; the Court has held that the latter requirement is
met if the United States has a controversy with a state.[7][8] In other cases, the Supreme Court has
only appellate jurisdiction, which may be regulated by the Congress. The Congress may not,
however, amend the Court's original jurisdiction, as was found in Marbury v.
Madison, 5 U.S. (Cranch 1) 137 (1803) (the same decision which established the principle of judicial
review). Marbury held that Congress can neither expand nor restrict the original jurisdiction of the
Supreme Court. However, the appellate jurisdiction of the Court is different. The Court's appellate
jurisdiction is given "with such exceptions, and under such regulations as the Congress shall make."

Often a court will assert a modest degree of power over a case for the threshold purpose of
determining whether it has jurisdiction, and so the word "power" is not necessarily synonymous with
the word "jurisdiction".[9][10]
Judicial review [edit]
Main articles: Judicial review and Judicial review in the United States

The power of the federal judiciary to review the constitutionality of a statute or treaty, or to review an
administrative regulation for consistency with either a statute, a treaty, or the Constitution itself, is an
implied power derived in part from Clause 2 of Section 2.[11]

Though the Constitution does not expressly provide that the federal judiciary has the power of
judicial review, many of the Constitution's Framers viewed such a power as an appropriate power for
the federal judiciary to possess. In Federalist No. 78, Alexander Hamilton wrote,

The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in
fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to
ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative
body. If there should happen to be an irreconcilable variance between two, that which has the
superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution
ought to be preferred to the statute, the intention of the people to the intention of their agents.[12]

Others, however, disagreed, claiming that each branch could determine for itself the constitutionality
of its actions.

A continuation of the text of Federalist No. 78 by Hamilton [below] counterbalances the tone of
"judicial supremacists" who demand that both Congress and the Executive are compelled by the
Constitution to enforce all court decisions, including those that, in their eyes, or those of the People,
violate fundamental American principles.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative
power. It only supposes that the power of the people is superior to both; and that where the will of
the legislature, declared in its statutes, stands in opposition to that of the people, declared in the
Constitution, the judges ought to be governed by the latter rather than the former. They ought to
regulate their decisions by the fundamental laws, rather than by those which are not
fundamental.[12] [emphasis added]

Hamilton continues. . .

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their
own pleasure to the constitutional intentions of the legislature. This might as well happen in the
case of two contradictory statutes; or it might as well happen in every adjudication upon any single
statute. The courts must declare the sense of the law; and if they should be disposed to exercise
WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure
to that of the legislative body. The observation, if it prove any thing, would prove that there ought
to be no judges distinct from that body.[12] [emphasis added]

Marbury v. Madison involved a highly partisan set of circumstances. Though Congressional elections
were held in November 1800, the newly elected officers did not take power until March.
The Federalist Party had lost the elections. In the words of President Thomas Jefferson, the
Federalists "retired into the judiciary as a stronghold". In the four months following the elections, the
outgoing Congress created several new judgeships, which were filled by President John Adams. In
the last-minute rush, however, Federalist Secretary of State John Marshall had neglected to deliver
17 of the commissions to their respective appointees. When James Madison took office as Secretary
of State, several commissions remained undelivered. Bringing their claims under the Judiciary Act of
1789, the appointees, including William Marbury, petitioned the Supreme Court for the issue of a writ
of mandamus, which in English law had been used to force public officials to fulfill their ministerial
duties. Here, Madison would be required to deliver the commissions.
Secretary of State James Madison, who won Marbury v. Madison, but lost Judicial review.

Marbury posed a difficult problem for the court, which was then led by Chief Justice John Marshall,
the same person who had neglected to deliver the commissions when he was the Secretary of State.
If Marshall's court commanded James Madison to deliver the commissions, Madison might ignore
the order, thereby indicating the weakness of the court. Similarly, if the court denied William
Marbury's request, the court would be seen as weak. Marshall held that appointee Marbury was
indeed entitled to his commission. However, Justice Marshall contended that the Judiciary Act of
1789 was unconstitutional, since it purported to grant original jurisdiction to the Supreme Court in
cases not involving the States or ambassadors[citation needed]. The ruling thereby established that the
federal courts could exercise judicial review over the actions of Congress or the executive branch.

However, Alexander Hamilton, in Federalist No. 78, expressed the view that the Courts hold only the
power of words, and not the power of compulsion upon those other two branches of government,
upon which the Supreme Court is itself dependent. Then in 1820, Thomas Jefferson expressed his
deep reservations about the doctrine of judicial review:

You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very
dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our
judges are as honest as other men, and not more so. They have, with others, the same passions for
party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are
in office for life, and not responsible, as the other functionaries are, to the elective control. The
Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the
corruptions of time and party, its members would become despots. It has more wisely made all the
departments co-equal and co-sovereign within themselves.[13]
Clause 3: Federal trials[edit]
A nineteenth century painting of a jury.

Clause 3 of Section 2 provides that Federal crimes, except impeachment cases, must be tried before
a jury, unless the defendant waives his right. Also, the trial must be held in the state where the crime
was committed. If the crime was not committed in any particular state, then the trial is held in such a
place as set forth by the Congress. The United States Senate has the sole power to try
impeachment cases.[14]

Two of the Constitutional Amendments that comprise the Bill of Rights contain related provisions.
The Sixth Amendmentenumerates the rights of individuals when facing criminal prosecution and
the Seventh Amendment establishes an individual's right to a jury trial in certain civil cases. It also
inhibits courts from overturning a jury's findings of fact. The Supreme Court has extended the
protections of these amendments to individuals facing trial in state courts through theDue Process
Clause of the Fourteenth Amendment.

Section 3: Treason[edit]

Iva Toguri, known as Tokyo Rose, and Tomoya Kawakita were two Japanese Americans who were tried for
treason after World War II.

Section 3 defines treason and its punishment.

Treason against the United States, shall consist only in levying War against them, or in adhering to
their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the
Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason
shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The Constitution defines treason as specific acts, namely "levying War against [the United States], or
in adhering to their Enemies, giving them Aid and Comfort." A contrast is therefore maintained with
the English law, whereby crimes including conspiring to kill the King or "violating" the Queen, were
punishable as treason. In Ex Parte Bollman, 8 U.S. 75 (1807), the Supreme Court ruled that "there
must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."[15]

Under English law effective during the ratification of the U.S. Constitution, there were essentially five
species of treason.[citation needed] Of the five, the Constitution adopted only two: levying war and adhering
to enemies. Omitted were species of treason involving encompassing (or imagining) the death of the
king, certain types of counterfeiting, and finally fornication with women in the royal family of the sort
which could call into question the parentage of royal successors.James Wilson wrote the original
draft of this section, and he was involved as a defense attorney for some accused of treason against
the Patriot cause.

Section 3 also requires the testimony of two different witnesses on the same overt act, or a
confession by the accused in open court, to convict for treason. This rule was derived from an older
English statute, the Treason Act 1695.[16]

In Cramer v. United States, 325 U.S. 1 (1945), the Supreme Court ruled that "[e]very act, movement,
deed, and word of the defendant charged to constitute treason must be supported by the testimony
of two witnesses."[17] In Haupt v. United States, 330 U.S. 631 (1947), however, the Supreme Court
found that two witnesses are not required to prove intent, nor are two witnesses required to prove
that an overt act is treasonable. The two witnesses, according to the decision, are required to prove
only that the overt act occurred (eyewitnesses and federal agents investigating the crime, for
example).

Punishment for treason may not "work Corruption of Blood, or Forfeiture except during the Life of the
Person" so convicted. The descendants of someone convicted for treason could not, as they were
under English law, be considered "tainted" by the treason of their ancestor. Furthermore, Congress
may confiscate the property of traitors, but that property must be inheritable at the death of the
person convicted.

In Federalist No. 43 James Madison wrote regarding the Treason Clause:

As treason may be committed against the United States, the authority of the United States ought to
be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by
which violent factions, the natural offspring of free government, have usually wreaked their alternate
malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar
danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction
of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt
beyond the person of its author.

Based on the above quotation, it was noted by the lawyer William J. Olson in an amicus curiae in the
case Hedges v. Obama that the Treason Clause was one of the enumerated powers of the federal
government.[18] He also stated that by defining treason in the U.S. Constitution and placing it in Article
III "the foundersintended the power to be checked by the judiciary, ruling out trials by military
commissions. As James Madison noted, the Treason Clause also was designed to limit the power of
the federal government to punish its citizens for adhering to [the] enemies [of the United States by],
giving them aid and comfort."[18]

See also[edit]
Marbury v. Madison
5 U.S. 137 (1803)
Annotate this Case

OpinionAnnotation

Syllabus |
Case

U.S. Supreme Court

Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803)

Marbury v. Madison

5 U.S. (1 Cranch) 137

Syllabus

The clerks of the Department of State of the United States may be called upon to give
evidence of transactions in the Department which are not of a confidential character.

The Secretary of State cannot be called upon as a witness to state transactions of a

confidential nature which may have occurred in his Department. But he may be called
upon to give testimony of circumstances which were not of that character.

Clerks in the Department of State were directed to be sworn, subject to objections to

questions upon confidential matters.

Some point of time must be taken when the power of the Executive over an officer, not
removable at his will, must cease. That point of time must be when the 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. This last
act is the signature of the commission.
If the act of livery be necessary to give validity to the commission of an officer, it has
been delivered when executed, and given to the Secretary of State for the purpose of
being sealed, recorded, and transmitted to the party.

In cases of commissions to public officers, the law orders the Secretary of State to
record them. When, therefore, they are signed and sealed, the order for their being
recorded is given, and, whether inserted inserted into the book or not, they are
recorded.

When the heads of the departments of the Government are the political or confidential
officers 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 politically examinable. But where a
specific duty is assigned by law, and individual rights depend upon the performance of
that duty, it seems equally clear that the individual who considers himself injured has a
right to resort to the laws of his country for a remedy.

The President of the United States, by signing the commission, appointed Mr. Marbury
a justice of the peace for the County of Washington, in the District of Columbia, and 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; and
the appointment conferred on him a legal right to the office for the space of five years.
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.

To render a mandamus a proper remedy, the officer to whom it is directed must be one
to whom, on legal principles, such writ must be directed, and the person applying for it
must be without any other specific remedy.

Where a commission to a public officer has been made out, signed, and sealed, and is
withheld from the person entitled to it, an action of detinue for the commission against
the Secretary of State who refuses to deliver it is not the proper remedy, as the
judgment in detinue is for the thing itself, or its value. The value of a public office, not to
be sold, is incapable of being ascertained. It is a plain case for a mandamus, either to
deliver the commission or a copy of it from the record.
To enable the Court to issue a mandamus to compel the delivery of the commission of a
public office by the Secretary of State, it must be shown that it is an exercise of
appellate jurisdiction, or that it 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 the cause.

The authority given to the Supreme Court by the act establishing the judicial system of
the United States to issue writs of mandamus to public officers appears not to be
warranted by the Constitution.

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.

At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend
Hooe, and William Harper, by their counsel,

Page 5 U. S. 138

severally moved the court for a rule to James Madison, Secretary of State of the United
States, to show cause why a mandamus should not issue commanding him to cause to
be delivered to them respectively their several commissions as justices of the peace in
the District of Columbia. This motion was supported by affidavits of the following facts:
that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late
President of the United States, nominated the applicants to the Senate for their advice
and consent to be appointed justices of the peace of the District of Columbia; that the
Senate advised and consented to the appointments; that commissions in due form were
signed by the said President appointing them justices, &c., and that the seal of the
United States was in due form affixed to the said commissions by the Secretary of
State; that the applicants have requested Mr. Madison to deliver them their said
commissions, who has not complied with that request; and that their said commissions
are withheld from them; that the applicants have made application to Mr. Madison as
Secretary of State of the United States at his office, for information whether the
commissions were signed and sealed as aforesaid; that explicit and satisfactory
information has not been given in answer to that inquiry, either by the Secretary of State
or any officer in the Department of State; that application has been made to the
secretary of the Senate for a certificate of the nomination of the applicants, and of the
advice and consent of the Senate, who has declined giving such a certificate;
whereupon a rule was made to show cause on the fourth day of this term. This rule
having been duly served,

Page 5 U. S. 139

Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court
and were required to give evidence, objected to be sworn, alleging that they were clerks
in the Department of State, and not bound to disclose any facts relating to the business
or transactions of the office.

The court ordered the witnesses to be sworn, and their answers taken in writing, but
informed them that, when the questions were asked, they might state their objections to
answering each particular question, if they had any.

Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated
in the affidavits occurred, was called upon to give testimony. He objected to answering.
The questions were put in writing.

The court said there was nothing confidential required to be disclosed. If there had
been, he was not obliged to answer it, and if he thought anything was communicated to
him confidentially, he was not bound to disclose, nor was he obliged to state anything
which would criminate himself.

The questions argued by the counsel for the relators were, 1. Whether the Supreme
Court can award the writ of mandamus in any case. 2. Whether it will lie to a Secretary
of State, in any case whatever. 3. Whether, in the present case, the Court may award a
mandamus to James Madison, Secretary of State.

Page 5 U. S. 153
Primary Holding
Congress does not have the power to pass laws that override the Constitution, such as by
expanding the scope of the Supreme Courts original jurisdiction.

Facts
Thomas Jefferson defeated John Adams in the presidential election of 1800, which was decided
on February 17, 1801. Before Jefferson took office on March 4, Adams and Congress passed
the Judiciary Act of 1801, which created new district courts, expanded the number of circuit
courts, added more judges to each circuit, gave the President more control over appointing
federal judges, and reduced the number of Supreme Court Justices from six to five. This law
essentially was an attempt by Adams and his political party to frustrate the incoming opposition,
since he used his new power to appoint 16 new circuit judges and 42 new justices of the peace,
a group known as the "Midnight Judges." The incoming appointees were approved by the
Adams Senate, but their appointments were not valid until each of their commissions was
delivered by John Marshall in his capacity as acting Secretary of State.

Justices of the peace were entitled to serve a term of five years. One of the new appointees was
William Marbury, a long-standing supporter of Adams who received the position of justice of the
peace in the District of Columbia. As was the case with a handful of other new appointees,
Marshall failed to deliver Marbury's commission before Adams left office and was succeeded by
Jefferson. With the change in administration, Marshall also left his position as Secretary of State
and was succeeded by James Madison. However, Jefferson ordered acting Secretary of State
Levi Lincoln to cease delivering the commissions, thus preventing the new appointees from
taking their positions. He assumed that they could be considered void, since they were not
delivered on time.

The machinations did not end there, moreover. The Jefferson Congress proceeded to replace
the Judiciary Act of 1801 with a new Judiciary Act of 1802 that essentially restored the initial
Judiciary Act of 1789. It also sought to delay the Supreme Court in hearing the inevitable
challenge to the constitutionality of Jefferson's maneuver by canceling its term in June 1802.
Marbury then filed a writ of mandamus with the Supreme Court, asking it to order the executive
branch to deliver his commission.

Opinions

Majority
 John Marshall (Author)
William Paterson
Samuel Chase
Bushrod Washington

This was a rare case that arrived at the Supreme Court as the court of original
jurisdiction rather than as an appeal from a lower court. Marshall and the other Justices
needed to determine not only whether Marbury had a right to his commission but
whether he had a remedy that could be enforced through the courts. Marshall found that
a remedy could be implied because no right could exist without a remedy. Also,
delivering the commission was a purely ministerial function of the executive branch. By
ordering it to comply with its ministerial duties, the Court would not violate the
separation of powers by encroaching on another branch's discretion.

Marshall also ruled that a writ of mandamus was the proper way to seek a remedy but
grappled with the question of whether the Supreme Court could issue it. He identified a
conflict between the Judiciary Act of 1789 and the Constitution, each of which provided
different parameters for the Court's original jurisdiction. Marshall rejected Marbury's
argument that the Constitution merely served as a foundation on which Congress could
build with later laws, finding that the Constitution trumped any laws and that Congress
did not have the power to modify the Constitution through regular legislation. In
explaining why the Constitution was supreme to all laws, he noted that the Supremacy
Clause places the Constitution before the laws and that judges must take an oath to
uphold the Constitution

As a result, Marshall found that the section of the Judiciary Act of 1789 that purported to
give the Supreme Court original jurisdiction over these matters was invalid because it
violated the Constitution.

[The Supreme Court consisted of only six Justices at this time, so Marshall's four-
Justice opinion was unanimous because two of the Justices recused themselves.]

Recused

William Cushing (Author)

Alfred Moore
Case Commentary
The Supreme Court uses its own understanding of the Constitution in reviewing the legitimacy
of acts by other branches of the government, even though this power is not apparent from the
plain text of the document. This case established the legitimacy of judicial review as well as the
primacy of the Constitution over any other source of law. Many legal scholars of both Marshall's
period and the contemporary era found the opinion's logic strained, basing a sweeping
conclusion on relatively little textual support. Still, the concept of judicial review has long been
accepted without challenge.

Unfortunately for Marbury, he never received his appointment as a justice of the peace in the
District of Columbia, merely because the commission was not delivered before Adams left
office.

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