Marbury v. Madison (1803)
Facts: In the last days of his Presidency, Adams appointed justices whom the Senate confirmed but whose commissions had not been delivered by the time Adams left office. Jefferson succeeded Adams and refused to deliver Marbury’s commission. Marbury sought a writ of mandamus to compel Madison, Jefferson’s Secretary of State, to deliver the commissions.
Issue/Holding: Does the Supreme Court (“SC”) have power, under Judiciary Act of 1789 (JA 1789) (bottom p. 26), to issue a writ of mandamus (court order forcing someone to do something)? Yes.
· Marbury has a right to the delivery of his commission. He was appointed by Adams to a position that is not removable at will by the executive. He is therefore entitled to all “evidences of offices” that pertain to this position.
· Since Marbury has a right, he has a remedy. Marshall states that “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.” Further, he holds that this is a government of “laws, and not of men.”
· Marshall establishes the right to judicial review, meaning that the courts have the power to interpret the Con and that the other branches of government are bound by this interpretation.
· Marshall does not primarily use the text of the Con, which addresses the judiciary (Art III and Art VI) to establish judicial review. To do so would be circular: these are the very things that are being called into question.
· Marshall turns to these 4 propositions:
1) The fact of a written constitution. Inherent within written cons is that they are the paramount law of the land. The law established by the legislature is binding only in so far as it conforms to the con. It is the “emphatically the province and duty of the judicial department to say what the law is.” This is the “very essence of judicial duty.”
[Note: this justification does not answer why the JUDICIARY has the power to say what is binding as constitutional on the national government. It just posits that this is the “essence of judicial duty.”]
2) The judicial power is granted to all cases arising under the con. This must mean that the judiciary must look into the con, all parts of it, to determine the validity of the law.
3) Judges take an oath to support the Con.
4) The Supremacy Clause: the Con is the supreme law of the land.
· Political Question Doctrine: The courts do not have jurisdiction over questions that are merely “political” or “discretionary.” They have jurisdiction over questions concerning the rights of individuals.
· The jurisdiction of the SC is confined to its original and appellate jurisdiction as laid out in Article III. [The Congress does have exceptional power to add to the appellate jurisdiction, see below].
· Courts are given the power to issue writs of mandamus to a Secretary of State as stated in JA 1789 creating the judicial courts: “the US authorizes the supreme court to ‘issue writs of mandamus…to any courts appointed, or persons holding, office, under the authority of the US” [this power will be shown to be unconstitutional].
· Courts do not have power “to inquire how the executive or executive officers, perform duties in which they have discretion.” Marshall insists that the Court has no jurisdiction over purely political questions that are a part of the inner workings of the executive office.
· While the Supreme Court was granted the power to issue writs of mandamus by the JA 1789, it does not have jurisdiction over this issue. Issuing a writ is not within the original jurisdiction of the SC which is given in “all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” Marshall then insists that b/c issuing this writ is like delivering the original commission there is no appellate review involved. Without original or appellate powers, the Court here has no jurisdiction. Congress does not have the authority to grant original jurisdiction where there is appellate and vice versa.
· Power granted to SC by JA 1789 to grant writs of mandamus is unconstitutional. The Court has the authority to hold that a legislative act is unconstitutional and the legislature must be bound by these judgments in its duties: judicial review is the province of the courts.