Case which established judicial review

The first object of inquiry is -- 1st. Has the applicant a right to the commission he demands? It [is] decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state.

To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. This brings us to the second inquiry; which is 2dly. 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. 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 invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.

To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted 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 rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only 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.

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

This depends on -- 1st. The nature of the writ applied for, and,. 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,. The act to establish the judicial courts of the United States authorizes the Supreme Court "to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

The Secretary of State, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.

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

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

If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction.

If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared 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. Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the constitution is intended to 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 foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended.

That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction. When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original.

If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.

The commissions were not delivered, however, and when President Jefferson assumed office March 5, , he ordered James Madison, his Secretary of State, not to deliver them. William Marbury, one of the appointees, then petitioned the Supreme Court for a writ of mandamus , or legal order, compelling Madison to show cause why he should not receive his commission.

In resolving the case, Chief Justice Marshall answered three questions. First, did Marbury have a right to the writ for which he petitioned? Second, did the laws of the United States allow the courts to grant Marbury such a writ?

Third, if they did, could the Supreme Court issue such a writ? With regard to the first question, Marshall ruled that Marbury had been properly appointed in accordance with procedures established by law, and that he therefore had a right to the writ.

Secondly, because Marbury had a legal right to his commission, the law must afford him a remedy. The Chief Justice went on to say that it was the particular responsibility of the courts to protect the rights of individuals -- even against the president of the United States.

At the time, Marshall's thinly disguised lecture to President Jefferson about the rule of law was much more controversial than his statement about judicial review which doctrine was widely accepted.

It was in answering the third question -- whether a writ of mandamus issuing from the Supreme Court was the proper remedy -- that Marshall addressed the question of judicial review. Should nine unelected judges be able to tell our elected representatives what they can and cannot do? Are courts more likely to block an enlightened consensus with their adherence to outdated principles or to protect the politically weak from oppressive majorities?

Are judges, protected with lifetime tenure and drawn generally from the educated class, more likely to be reflective and above the passing enthusiasms that drive legislative action? Does Marbury mean that legislators or members of the executive branch have no responsibility to judge the constitutionality of their own actions?

Could we have a workable system of government without judicial review? What a government of limited powers needs, at the beginning and forever, is some means of satisfying the people that it has taken all steps humanly possible to stay within its powers. Q uoits, Anyone? It is hard to imagine the withdrawn and aristocratic Jefferson in a similar posture.

Chief Justice John Marshall The Judiciary Act Section 13 : The act to establish the judicial courts of the United States authorizes the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

What should be made of this fact? Does it suggest that the framers did not intend to give the courts such a power? Not necessarily, although that is one explanation for its absence. It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated.

A third possibility is that the framers didn't think that the issue would ever come up, because Congress would never pass legislation outside of its enumerated powers. Many people know the first Supreme Court decision to declare an act of Congress unconstitutional It's Marbury , of course , but few people could identify the Court's first decision declaring Executive Branch action to be unconstitutional.