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In this landmark decision, the Supreme Court stated that it was the final arbiter of the Constitution of the United States. This power ultimately established the Supreme Court as a co-equal branch of the government.
In the 1800 election, the Federalists lost both the Presidency and control of the Congress. The Federalists passed the Judiciary Act of 1801, in the final months during which they still maintained control of Congress. This Judiciary Act created 6 circuit courts and 16 new judgeships, along with a number of other judicial appointments.
William Marbury was one of the people appointed to a judgeship in the last days of Federalist power. He was appointed a justice of the peace for the District of Columbia. His commission, however, was never delivered. When Jefferson became President, he instructed Secretary of State Madison not to deliver the commission.
Marbury sued. The Supreme Court, under the leadership of Chief Justice Marshall, faced a dilemma. If it ruled in favor of Marbury, it would no doubt be defied by the administration. If it ruled against Marbury, however, it would be admitting that the Court had no power.
Marshall found the political middle. He ruled against Marbury on a technicality. On the other hand, he ruled that the judiciary had the right and responsibility to decide what was and what was not constitutional.
In subsequent decisions under Marshall's leadership, the Court assumed its position as a branch of the government co-equal with the executive and legislative branches. In Fletcher v. Peck, the Court struck down a Georgia law as unconstitutional. In the decision of Martin v. Hunter Lessee, it denied the claim of the Virginia judiciary that it was not subject to the authority of the federal judiciary.
Marbury v. Madison
Marbury v Madison is considered by many to be not just a landmark case for the Supreme Court, but rather the landmark case. The Court's decision was delivered in 1803 and continues to be invoked when cases involve the question of judicial review. It also marked the beginning of the Supreme Court's rise in power to a position equal to that of the legislative and executive branches of the federal government. In short, it was the first time the Supreme Court declared an act of Congress unconstitutional.
Fast Facts: Marbury v. Madison
Case Argued: February 11, 1803
Decision Issued: February 24, 1803
Petitioner: William Marbury
Respondent: James Madison, Secretary of State
Key Questions: Was President Thomas Jefferson within his rights to direct his Secretary of State James Madison to withhold a judiciary commission from William Marbury who'd been appointed by his predecessor, John Adams?
Unanimous Decision: Justices Marshall, Paterson, Chase, and Washington
Ruling: Though Marbury was entitled to his commission, the Court was unable to grant it because Section 13 of the Judiciary Act of 1789 conflicted with Article III Section 2 of the U.S. Constitution and was therefore null and void.
The chief justice recognized the dilemma that the case posed to the court. If the court issued the writ of mandamus, Jefferson could simply ignore it, because the court had no power to enforce it. If, on the other hand, the court refused to issue the writ, it would appear that the judicial branch of government had backed down before the executive, and that Marshall would not allow. The solution he chose has properly been termed a tour de force. In one stroke, Marshall managed to establish the power of the court as the ultimate arbiter of the Constitution, to chastise the Jefferson administration for its failure to obey the law, and to avoid having the court’s authority challenged by the administration.
Marshall, adopting a style that would mark all his major opinions, reduced the case to a few basic issues. He asked three questions: (1) Did Marbury have the right to the commission? (2) If he did, and his right had been violated, did the law provide him with a remedy? (3) If it did, would the proper remedy be a writ of mandamus from the Supreme Court? The last question, the crucial one, dealt with the jurisdiction of the court, and in normal circumstances it would have been answered first, since a negative response would have obviated the need to decide the other issues. But that would have denied Marshall the opportunity to criticize Jefferson for what the chief justice saw as the president’s flouting of the law.
Following the arguments of Marbury’s counsel on the first two questions, Marshall held that the validity of a commission existed once a president signed it and transmitted it to the secretary of state to affix the seal. Presidential discretion ended there, for the political decision had been made, and the secretary of state had only a ministerial task to perform—delivering the commission. In that the law bound him, like anyone else, to obey. Marshall drew a careful and lengthy distinction between the political acts of the president and the secretary, in which the courts had no business interfering, and the simple administrative execution that, governed by law, the judiciary could review.
Having decided that Marbury had the right to the commission, Marshall next turned to the question of remedy, and once again found in the plaintiff’s favour, holding that “having this legal title to the office, [Marbury] has a consequent 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.” After castigating Jefferson and Madison for “sport[ing] away the vested rights of others,” Marshall addressed the crucial third question. Although he could have held that the proper remedy was a writ of mandamus from the Supreme Court—because the law that had granted the court the power of mandamus in original (rather than appellate) jurisdiction, the Judiciary Act of 1789, was still in effect—he instead declared that the court had no power to issue such a writ, because the relevant provision of the act was unconstitutional. Section 13 of the act, he argued, was inconsistent with Article III, Section 2 of the Constitution, which states in part 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 Party,” and that “in all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction.” In thus surrendering the power derived from the 1789 statute (and giving Jefferson a technical victory in the case), Marshall gained for the court a far-more-significant power, that of judicial review.
Aftermath and Legacy
Marbury v. Madison is now widely regarded as one of the Supreme Court’s most important opinions. Many subsequent landmark federal cases have relied on the judiciary’s ability to strike down acts of Congress. The case has also had many critics, however. Thomas Jefferson criticized Marshall for engaging in unnecessary editorialization, believing the case should have begun and ended with the conclusion that the Court did not have jurisdiction. Edward Corwin, one of the leading legal scholars of the first half of the twentieth century, went further, claiming the case bore “many of the earmarks of a deliberate partisan coup.”
Moreover, while the Supreme Court did not strike down another federal statute for more than fifty years, the second case in which it did so became one of the most infamous decisions in American legal history. In Scott v. Sandford (1857), often known as the Dred Scott case, Marshall’s successor, Roger Brooke Taney, invalidated the Missouri Compromise of 1820, reasoning in part that it improperly interfered with slaveholders’ rights to transport enslaved people as their property and exceeded Congress’s power to regulate federal territories. In 1861, President Abraham Lincoln, likely thinking of Dred Scott, argued for a limited form of judicial review. Similarly, federal cases striking down economic legislation during the 1930s angered President Franklin Roosevelt and many of his supporters and led to arguments for restraints on judicial power.
In the fiercely contested U.S. presidential election of 1800, the three main candidates were Thomas Jefferson, Aaron Burr, and the incumbent president, John Adams.  Adams was aligned with the pro-business and pro-national government politics of Alexander Hamilton and the Federalist Party, while Jefferson and Burr were part of the opposing Democratic-Republican Party, which favored agriculture and decentralization. American public opinion had gradually turned against the Federalists in the months prior to the election, mainly due to their use of the controversial Alien and Sedition Acts, as well as growing tensions with Great Britain, with whom the Federalists favored close ties.  Jefferson easily won the popular vote, but only narrowly defeated Adams in the Electoral College.
As the results of the election became clear in early 1801, Adams and the Federalists became determined to exercise their influence in the weeks remaining before Jefferson took office, and did all they could to fill federal offices with "anti-Jeffersonians" who were loyal to the Federalists.   On March 2, 1801, just two days before his presidential term ended, [note 1] Adams nominated nearly 60 Federalist supporters to circuit judge and justice of the peace positions the Federalist-controlled Congress had newly created. These last-minute nominees—whom Jefferson's supporters derisively called the "Midnight Judges"  —included William Marbury, a prosperous businessman from Maryland. An ardent Federalist, Marbury was active in Maryland politics and had been a vigorous supporter of the Adams presidency. 
The following day, March 3, the Senate approved Adams's nominations en masse. The appointees' commissions were immediately written out, then signed by Adams and sealed by his Secretary of State, John Marshall, who had been named the new Chief Justice of the Supreme Court in January but continued also serving as Secretary of State for the remainder of Adams's term.   Marshall then dispatched his younger brother James Markham Marshall to deliver the commissions to the appointees.  With only one day left before Jefferson's inauguration, James Marshall was able to deliver most of the commissions, but a few—including Marbury's—were not delivered. 
The day after, March 4, 1801, Thomas Jefferson was sworn in and became the third President of the United States. As soon as he was able, Jefferson instructed his new Secretary of State, James Madison, to withhold the undelivered appointments.  In Jefferson's opinion, the commissions were void because they had not been delivered before Adams left office.  Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed.
Over the next several months, Madison continually refused to deliver Marbury's commission to him. Finally, in December 1801, Marbury filed a lawsuit against Madison in the U.S. Supreme Court, asking the Court to issue a writ of mandamus forcing Madison to deliver his commission.  This lawsuit resulted in the case of Marbury v. Madison.
On February 24, 1803, [note 2] the Court rendered a unanimous 4–0 decision against Marbury. [note 3]
The Court's opinion was written by the Chief Justice, John Marshall. Marshall structured the Court's opinion around a series of three questions that Marshall answered in turn:
- First, did Marbury have a right to his commission?
- Second, if Marbury had a right to his commission, was there a legal remedy for him to obtain it?
- Third, if there was such a remedy, could the Supreme Court legally issue it? 
First, Marshall wrote that Marbury had a right to his commission because all appropriate procedures were followed: the commission had been properly signed and sealed.  Madison contended that the commissions were void if not delivered, but the Court disagreed, and said that the delivery of the commission was merely a custom, not an essential element of the commission itself. 
The [President's] signature is a warrant for affixing the great seal to the commission, and the great seal is only to be affixed to an instrument which is complete. . The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment, which must precede it and which is the mere act of the President.
Because Marbury's commission was valid, Marshall wrote, Madison's withholding of it was "violative of a vested legal right" on Marbury's part. 
Marbury's legal remedy
Turning to the second question, the Court said that the laws clearly afforded Marbury a remedy for Madison's unlawfully withholding his commission from him. Marshall wrote that "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded." This rule derives from the traditional Roman legal maxim ubi jus, ibi remedium ("where there is a legal right, there is a legal remedy"), which was well established in the early Anglo-American common law.   In what the American legal scholar Akhil Amar called "one of the most important and inspiring passages" of the opinion,  Marshall wrote:
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.
The Court then confirmed that a writ of mandamus—a type of court order that commands a government official to perform an act he or she is legally required to perform—was the proper remedy for Marbury's situation.  But this raised the issue of whether the Court, which was part of the judicial branch of the government, had the power to command Madison, who as Secretary of State was part of the executive branch of the government.  The Court held that so long as the remedy involved a mandatory duty to a specific person, and not a political matter left to discretion, the courts could provide the legal remedy.  Borrowing a phrase John Adams had drafted in 1779 for the Massachusetts State Constitution, Marshall wrote: "The government of the United States has been emphatically termed a government of laws, and not of men." 
The Supreme Court's jurisdiction
This brought Marshall to the third question: Whether the Supreme Court had proper jurisdiction over the case. This question would determine whether or not the Court had the power to issue the writ Marbury requested.  The answer depended entirely on how the Court interpreted the text of the Judiciary Act of 1789. Congress had passed this Act to establish the American federal court system, since the U.S. Constitution itself only mandates a Supreme Court and leaves the rest of the U.S. federal judicial power to reside in "such inferior Courts as the Congress may from time to time ordain and establish."  Section 13 of the Judiciary Act deals with the Supreme Court's original and appellate jurisdictions.
The Supreme Court shall have [original] jurisdiction over all cases of a civil nature where a state is a party, . And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, . And the trial of issues in fact . shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for and shall have power 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.
As Marshall explains in the opinion, under original jurisdiction, a court has the power to be the first to hear and decide a case under appellate jurisdiction, a court has the power to hear a party's appeal from a lower court's decision and to "revise and correct" the previous decision.  Marbury had argued that the language of Section 13 of the Judiciary Act gave the Supreme Court the authority to issue writs of mandamus when hearing cases under original jurisdiction, not just appellate jurisdiction.  Although the language on the power to issue writs of mandamus appears with the sentence on appellate jurisdiction, rather than with the earlier sentences on original jurisdiction, a semicolon separates it from the specific clause on appellate jurisdiction. The section itself does not make clear whether the mandamus clause was intended to be read as part of the appellate sentence or on its own – in the opinion, Marshall quoted only the end of the section  – and the law's wording can plausibly be read either way. 
The Court agreed with Marbury, and interpreted section 13 of the Judiciary Act to authorize mandamus on original jurisdiction.   But as Marshall's opinion then pointed out, this meant that the Judiciary Act clashed with Article III of the U.S. Constitution, which establishes the judicial branch of the U.S. government. Article III defines the Supreme Court's jurisdiction as follows:
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.
This section of the Constitution says that the Supreme Court only has original jurisdiction over cases where a U.S. State is a party to a lawsuit or where a lawsuit involves foreign dignitaries. Neither of these categories covered Marbury's lawsuit, which was a dispute over a writ of mandamus for his justice of the peace commission. So, according to the Constitution, the Court could only have heard Marbury's case while exercising appellate jurisdiction over an appeal, not under original jurisdiction over a lawsuit directly filed with it, as Marbury had done.  
But per Marshall's earlier interpretation, Section 13 of the Judiciary Act said that the Supreme Court did have original jurisdiction over mandamus cases like Marbury's. This meant that the Judiciary Act apparently took the Constitution's initial scope of the Supreme Court's original jurisdiction and expanded it to include cases involving writs of mandamus. Marshall ruled that Congress cannot increase the Supreme Court's original jurisdiction as it was set down in the Constitution, and therefore held that the relevant portion of Section 13 of the Judiciary Act violated Article III of the Constitution. 
Judicial review and striking down the law
After ruling that it conflicted with the Constitution, the Court struck down the relevant portion of the Judiciary Act in the U.S. Supreme Court's first ever declaration of the power of judicial review.   The Court ruled that American federal courts have the power to refuse to give any effect to congressional legislation that is inconsistent with their interpretation of the Constitution—a move known as "striking down" laws. 
The U.S. Constitution does not explicitly give the American judiciary the power of judicial review.  Nevertheless, Marshall's opinion gives a number of reasons in support of the judiciary's possession of the power. First, Marshall reasoned that the written nature of the Constitution inherently established judicial review.   In a line borrowed from Alexander Hamilton's essay Federalist No. 78, Marshall wrote: "The powers of the legislature are defined and limited and that those limits may not be mistaken or forgotten, the constitution is written."  He continued: "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void." 
Second, Marshall declared that deciding the constitutionality of the laws it applies is an inherent part of the American judiciary's role.  In what has become the most famous and frequently quoted line of the opinion, Marshall wrote:
It is emphatically the province and duty of the Judicial Department to say what the law is.
Marshall reasoned that the Constitution places limits on the American government's powers, and that those limits would be meaningless unless they were subject to judicial review and enforcement.   He reasoned that the Constitution's provisions limiting Congress's power—such as the export tax clause, or the prohibitions on bills of attainder and ex post facto laws—meant that in some cases judges would be forced to choose between enforcing the Constitution or following Congress.  In his opinion, the dilemma was not difficult: "The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest."  He held "virtually as a matter of iron logic" that in the event of conflict between the Constitution and statutory laws passed by Congress, the constitutional law must be supreme.  Again borrowing from Federalist No. 78,  Marshall stated:
If two laws conflict with each other, the courts must decide on the operation of each. . If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, [then] the constitution, and not such ordinary act, must govern the case to which they both apply.
Third, Marshall stated that denying the supremacy of the Constitution over Congress's acts would mean that "courts must close their eyes on the constitution, and see only the law."  And this, he said, would make Congress omnipotent, since none of the laws it passed would ever be invalid:
This doctrine . would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits.
Marshall then gave several other reasons in favor of judicial review. He argued that the authorization in Article III of the Constitution that the Court can decide cases arising "under this Constitution" implied that the Court had the power to strike down laws conflicting with the Constitution.  This, Marshall wrote, meant that the Founders were willing to have the American judiciary use and interpret the Constitution when judging cases. He also argued that federal judges' oaths of office—in which they swear to discharge their duties impartially and "agreeably to the Constitution and laws of the United States"—requires them to support the Constitution.  Lastly, Marshall argued that judicial review is implied in Article VI of the U.S. Constitution, since it declares that the supreme law of the United States is the Constitution and laws made "in Pursuance thereof", rather than the Constitution and all federal laws equally.  
Having given his list of reasons, Marshall concluded the Court's opinion by reaffirming the Court's ruling of the jurisdiction law's invalidity and, therefore, the Court's inability to issue Marbury's writ of mandamus.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. The rule must be discharged.
Besides its inherent legal questions, the case of Marbury v. Madison also created a difficult political dilemma for Marshall and the Supreme Court itself.  If the Court had ruled in favor of Marbury and issued a writ of mandamus ordering Madison to deliver Marbury's commission, Jefferson and Madison would probably have simply ignored it, which would have made the Court look impotent and emphasized the "shakiness" of the judiciary.  On the other hand, a plain and simple ruling against Marbury would have given Jefferson and the Democratic-Republicans a clear political victory. 
Marshall avoided both problems and solved the dilemma. First, he ruled that Madison's withholding of Marbury's commission was illegal, which pleased the Federalists. But he ultimately held that the Court could not give Marbury his requested writ of mandamus, which gave Jefferson and the Democratic-Republicans the result they desired. However, in what the American legal scholar Laurence Tribe described as "an oft-told tale . [that] remains awe-inspiring", Marshall ruled against Marbury in a way that maneuvered Marbury's simple petition for a writ of mandamus into a case that presented a question that went to the heart of American constitutional law itself.  In his history of the Supreme Court, the American political historian Robert G. McCloskey wrote:
[Marbury v. Madison] is a masterwork of indirection, a brilliant example of Marshall's capacity to sidestep danger while seeming to court it. . The danger of a head-on clash with the Jeffersonians was averted by the denial of jurisdiction: but, at the same time, the declaration that the commission was illegally withheld scotched any impression that the Court condoned the administration's behavior. These negative maneuvers were artful achievements in their own right. But the touch of genius is evident when Marshall, not content with having rescued a bad situation, seizes the occasion to set forth the doctrine of judicial review. It is easy for us to see in retrospect that the occasion was golden, . but only a judge of Marshall's discernment could have recognized it.
Marshall had been looking for a case that was suitable for introducing judicial review, and was eager to use the situation in Marbury to establish his claim.  He introduced judicial review—a move Jefferson decried—but used it to strike down a provision of a law that he read to have expanded the Supreme Court's powers, and thereby produced Jefferson's hoped-for result of Marbury losing his case.  Marshall "seized the occasion to uphold the institution of judicial review, but he did so in the course of reaching a judgment that his political opponents could neither defy nor protest."  Though Jefferson criticized Marshall's opinion, he accepted it, and Marshall's decision in Marbury "articulate[d] a role for the federal courts that survives to this day."  The American legal scholar Erwin Chemerinsky concluded: "The brilliance of Marshall's opinion cannot be overstated." 
Given its preeminent position in American constitutional law, Marshall's opinion in Marbury v. Madison continues to be the subject of critical analysis and historical inquiry.  In a 1955 Harvard Law Review article, U.S. Supreme Court Justice Felix Frankfurter emphasized that one can criticize Marshall's opinion in Marbury without demeaning it: "The courage of Marbury v. Madison is not minimized by suggesting that its reasoning is not impeccable and its conclusion, however wise, not inevitable." 
Criticisms of Marshall's opinion in Marbury usually fall into two general categories.  First, some criticize the way Marshall "strove" to reach the conclusion that the U.S. Supreme Court has constitutional authority over the other branches of the U.S. government. Today, American courts generally follow the principle of "constitutional avoidance": if a certain interpretation of a law raises constitutional problems, they prefer to use alternative interpretations that avoid these problems, so long as the alternative interpretations are still plausible.  In Marbury, Marshall could have avoided the constitutional questions through different legal rulings: for example, if he had ruled that Marbury did not have a right to his commission until it was delivered, or if he had ruled that refusals to honor political appointments could only be remedied through the political process and not the judicial process, it would have ended the case immediately, and the Court would not have reached the case's constitutional issues.  Marshall did not do so, and many legal scholars have criticized him for it.  However, others have noted that the "constitutional avoidance" principle did not exist in 1803, and in any case is "only a general guide for Court action", not an "ironclad rule".  Alternatively, it has also been argued that the claim that Marshall "strove" to create a controversy largely vanishes when the case is viewed from the legal perspective of the late 18th century, when American colonies' and states' supreme courts were largely modeled on England's Court of King's Bench, which inherently possessed mandamus powers. 
Second, Marshall's arguments for the Court's authority are sometimes said to be mere "series of assertions", rather than substantive reasons logically laid out to support his position.  It is generally agreed that Marshall's series of assertions regarding the U.S. Constitution and the actions of the other branches of government do not "inexorably lead to the conclusion that Marshall draws from them."  Marshall's assertion of the American judiciary's authority to review executive branch actions was the most controversial issue when Marbury was first decided, and several subsequent U.S. presidents have tried to dispute it, to varying degrees. 
Additionally, it is questionable whether Marshall should have participated in the Marbury case because of his participating role in the dispute.  Marshall was still the acting Secretary of State when the nominations were made, and he himself had signed Marbury and the other men's commissions and had been responsible for their delivery.  This potential conflict of interest raises strong grounds for Marshall to have recused himself from the case.  In hindsight, the fact that Marshall did not recuse himself from Marbury is likely indicative of his eagerness to hear the case and use it to establish judicial review. 
Marbury v. Madison remains the single most important decision in American constitutional law.  It established American judges' authority to review the constitutionality of Congress's legislative acts,  and to this day the Supreme Court's power to review the constitutionality of American laws at both the federal and state level "is generally rested upon the epic decision of Marbury v. Madison." 
Although the Court's opinion in Marbury established judicial review in American federal law, it did not create or invent it. Some 18th-century British jurists had argued that British courts had the power to circumscribe Parliament, and the principle became generally accepted in Colonial America—especially in Marshall's native Virginia—due to the idea that in America only the people were sovereign, rather than the government, and therefore that the courts should only implement legitimate laws.   By the time of the Constitutional Convention in 1787, American courts' "independent power and duty to interpret the law" was well established, and Alexander Hamilton defended the concept of judicial review in Federalist No. 78.  Nevertheless, Marshall's opinion in Marbury was the power's first announcement and exercise by the Supreme Court. It made the practice more routine, rather than exceptional, and prepared the way for the Court's opinion in the 1819 case McCulloch v. Maryland, in which Marshall implied that the Supreme Court was the supreme interpreter of the U.S. Constitution. 
Marbury also established that the power of judicial review covers actions by the executive branch—the President, his cabinet members, and the departments and agencies they head.  However, American courts' power of judicial review over executive branch actions only extends to matters in which the executive has a legal duty to act or refrain from acting, and does not extend to matters that are entirely within the President's discretion, such as whether to veto a bill or whom to appoint to an office.  This power has been the basis of many subsequent important Supreme Court decisions in American history, such as the 1974 case United States v. Nixon, in which the Court held that President Richard Nixon had to comply with a subpoena to provide tapes of his conversations for use in a criminal trial related to the Watergate scandal, and which ultimately led to Nixon's resignation. 
U.S. Supreme Court
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,
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,
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.
A Cornerstone of the American System
The fourth and fifth parts of the Marbury decision, brilliantly reasoned, established a cornerstone of the United States' system of government. In the fourth part, Marshall considered whether or not the Supreme Court had the power, or in other words the jurisdiction, to issue a writ of mandamus. Article III of the U.S. Constitution gave the Supreme Court two types of jurisdiction, original and appellate. Original jurisdiction meant the Supreme Court could be the first court to receive a petition and hear the resulting case. Article III gave the Supreme Court original jurisdiction over politically sensitive issues such as those involving "ambassadors" or when one of the states was named as a party. In all other cases, the Supreme Court has appellate jurisdiction, meaning petitions or cases must work their way through the lower courts before arriving at the Supreme Court.
Yet, section 13 of the Judiciary Act of 1789 allowed the petitioning of the Supreme Court and all federal courts directly asking them to issue writs. Although Marbury was neither an ambassador nor a state government, the Judiciary Act gave him the right to petition the Supreme Court first. Marshall ruled that this legislation violated the intent of the Constitution by giving the Supreme Court original jurisdiction in matters not mentioned in Article III. He concluded the Judiciary Act was unconstitutional, therefore invalid and not enforceable by a court of law. As a result, the Supreme Court, in response to Marbury's petition, could not issue the writ. This decision avoided a direct conflict with the Jefferson administration. At the same time, it also negated an act passed by Congress. Marshall wrote that it would be absurd to insist that the courts must uphold unconstitutional acts of the legislature. No act of Congress could do something forbidden by the Constitution. Marshall's reasoning established the Court's power to declare an act of Congress unconstitutional — a monumental first which became a cornerstone of the American democratic system.
II. Factual Background | Marbury v Madison
In the 1800 Presidential election, Thomas Jefferson defeated John Adams but before the incoming President Jefferson could hold his office on March 4, 1801, the outgoing President John Adams and Congress passed the Judiciary Act of 1801. The act established new courts, added new justices, and vested more power and control with the President over the appointment of judges.
The Judiciary Act, 1801 was nothing but essentially an attempt by Adams and his party to frustrate his successor, as he used the act to appoint 16 new circuit judges and 42 new justices of the peace. The appointees were approved by the Senate, but they would not be valid until their commissions were delivered by the Secretary of State.
William Marbury had been appointed Justice of the Peace in the District of Columbia, but his commission was not delivered. Marbury filed a petition before the U.S. Supreme Court to compel the new Secretary of State, James Madison, to deliver the documents. Marbury, accompanied by three other similarly situated appointees, filed a writ petition of mandamus compelling the delivery of the commissions by Madison.
So, essentially, the present case involved a dispute between the outgoing President and the incoming President. In the case, Chief Justice John Marshall sided with Jefferson, his political rival, in the Supreme Court’s decision but took the opportunity to enlarge the court’s power in doing so.
A system of distinct powers built into the Constitution to prevent an accumulation of power in one branch.
The presidential election of 1800 was bitter and divisive. Thomas Jefferson, a Republican, defeated incumbent John Adams, a Federalist. The Federalist-controlled Congress passed a law, just days before Jefferson was to take office, allowing outgoing President John Adams to appoint forty-two new justices of the peace. These new justices became known as “midnight judges” because of the last-minute nature of their appointments.
By the time Jefferson took office, not all of the commissions formalizing the appointments had been delivered. President Jefferson ordered his Secretary of State, James Madison, not to deliver the commissions to Adams’s appointees. One of those commissions not delivered was for William Marbury. Marbury asked the Supreme Court to issue a “writ of mandamus” – a court order forcing Jefferson and Madison to deliver the commissions. The Judiciary Act, passed by Congress in 1789, had given the Supreme Court the power to issue these writs.
Sitting as Supreme Court Chief Justice was John Marshall, a Federalist, and the cousin of Thomas Jefferson. In his landmark opinion, Marshall asserted that Marbury had a right to his commission, but that the Supreme Court lacked the power under Article III of the Constitution to force the President to deliver it. In so ruling, the Supreme Court overturned the portion of the 1789 Judiciary Act granting the Supreme Court the power to issue writs of mandamus. The Supreme Court had found an act of Congress unconstitutional, and judicial review was first exercised.
This Homework Help video explores the first landmark Supreme Court cases and asks students to assess its impact on U.S. history.