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

MR. JUSTICE MARSHALL delivered the opinion of the Court.

In the order in which the court has viewed this subject, the following
questions have been considered and decided.

   1. Has the applicant a right to the commission he demands?

   2. If he has a right, and that right has been violated, do the laws
of his country afford him a remedy?

   3. If they do afford him a remedy, is it a mandamus issuing from this
court?

. . . It is . . . the opinion of the court,

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

2. That, having this legal title 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 this country afford him a
remedy.

It remains to be enquired whether,

3. He is entitled to the remedy for which applies. This depends on,

   1. The nature of the writ applied for and

   2. The power of this court.

. . . This, then, is a plain case for mandamus, either to deliver the 
commission, or a copy of it from the record; and it only remains to be 
enquired, whether it can issue from this court.

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 
absolutely 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 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 he 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.

. . . To enable this court, then to issue a mandamus, it must be shown to be 
an exercise of appellate jurisdiction, or to be necessary to enable them to 
exercise appellate jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be 
exercised in a variety of forms, and that, if it be the will of the 
legislature that a mandamus should be used for that purpose, that will must 
be obeyed. This is true, yet the jurisdiction must be appellate, not 
original.

It is the essential criterion of appellate jurisdiction that it revises and 
corrects the proceedings in a cause already instituted, and does not create 
that cause. Although, therefore, a mandamus may be directed to courts, yet 
to issue such a writ to an officer for the delivery of a paper is in effect 
the same as to sustain an original action for that paper, and, therefore, 
seems not to belong to appellate, but to original jurisdiction. Neither is 
it necessary, in such a case as this, to enable the court to exercise its 
appellate jurisdiction.

The authority, therefore, given to the Supreme Court by the act establishing 
the judicial courts of the United States, to issue writs of mandamus to 
public officers, appears not to be warranted by the Constitution; and it 
becomes necessary to inquire whether a jurisdiction so conferred can be 
exercised.

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. It seems only 
necessary to recognize certain principles, supposed to have been long and 
well established, to decide it.

That the people have an original right to establish, for their future 
government, such principles as, in their opinion, shall most conduce to 
their own happiness is the basis on which the whole American fabric had been 
erected. The exercise of this original right is a very great exertion; nor 
can it, nor ought it, to be frequently repeated. The principles, therefore, 
so established, are deemed fundamental. And as the authority from which they 
proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to 
different departments their respective powers. It may either stop here, or 
establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers 
of the legislature are defined and limited; and that those limits may not be 
mistaken, or forgotten, the Constitution is written. 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? The distinction between a government with limited and unlimited 
powers is abolished if those limits do not confine the persons on whom they 
are imposed, and if acts prohibited and acts allowed are of equal 
obligation. It is a proposition too plain to be contested, that the 
Constitution controls any legislative act repugnant to it; or, that the 
legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is 
either a superior paramount law, unchangeable by ordinary means, or it is on 
a level with ordinary legislative acts, and, like other acts, is alterable 
when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act 
contrary to the Constitution is not law: if the latter part be true, then 
written constitutions are absurd attempts on the part of the people to limit 
a power in its own nature illimitable.

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.

This theory is essentially attached to a written constitution, and is, 
consequently, to be considered by this court as one of the fundamental 
principles of our society. It is not therefore to be lost sight of in the 
further consideration of this subject.

If an act of the legislature, repugnant to the Constitution, is void, does 
it, notwithstanding its invalidity, bind the courts, and oblige them to give 
it effect? Or, in other words, though it be not law, does it constitute a 
rule as operative as if it was a law? This would be to overthrow in fact 
what was established in theory; and would seem at first view, an absurdity 
too gross to be insisted on. It shall, however, receive a more attentive 
consideration.

It is emphatically the province and 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 that rule. If two laws conflict with each 
other, the courts must decide on the operation of each.

So if a law 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.

This doctrine would subvert the very foundation of all written 
constitutions. It would declare that an act which, according to the 
principles and theory of our government, is entirely void, is yet, in 
practice, completely obligatory. It 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. It is prescribing limits and 
declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement 
on political institutions -- a written constitution -- would of itself be 
sufficient, in America, where written constitutions have been viewed with so 
much reverence, for rejecting the construction. But the peculiar expressions 
of the Constitution of the United States furnish additional arguments in 
favor of its rejection.

The judicial power of the United States is extended to all cases arising 
under the Constitution.

Could it be the intention of those who gave this power to say that, in using 
it, the Constitution should not be looked into? That a case arising under 
the Constitution should be decided without examining the instrument under 
which it rises?

This is too extravagant to be maintained.

In some cases then, the Constitution must be looked into by the judges. And 
if they can open it at all, what part of it are they forbidden to read or to 
obey?

There are many other parts of the Constitution which serve to illustrate 
this subject.

It is declared that "no tax or duty shall be laid on articles exported from 
any state." Suppose a duty on the export of cotton, of tobacco, or of flour; 
and a suit instituted to recover it. Ought judgment to be rendered in such a 
case? Ought the judges to close their eyes on the Constitution, and see only 
the law?

The Constitution declares that "no bill of attainder or ex post facto law 
shall be passed."

If, however, such a bill should be passed and a person should be prosecuted 
under it; must the court condemn to death those victims who the Constitution 
endeavours to preserve?

"No person," says the Constitution, "shall be convicted of treason unless on 
the testimony of two witnesses to the same overt act, or on confession in 
open court."

Here the language of the Constitution is addressed especially to the courts. 
It prescribes, directly for them, a rule of evidence not to be departed 
from. If the legislature should change that rule, and declare one witness, 
or a confession out of court, sufficient for conviction, must the 
constitutional principle yield to the legislative act?

From these, and many other selections which might be made, it is apparent 
that the framers of the Constitution contemplated that instrument as a rule 
for the government of courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This 
oath certainly applies in an especial manner to their conduct in their 
official character. How immoral to impose it on them, if they were to be 
used as the instruments, and the knowing instruments, for violating what 
they swear to support?

The oath of office, too, imposed by the legislature, is completely 
demonstrative of the legislative opinion on this subject. It is in these 
words: "I do solemnly swear that I will administer justice without respect 
to persons, and do equal right to the poor and to the rich; and that I will 
faithfully and impartially discharge all the duties incumbent on me as --, 
according to the best of my abilities and understanding agreeably to the 
Constitution and laws of the United States."

Why does a judge swear to discharge his duties agreeably to the Constitution 
of the United States, if that Constitution forms no rule for his government? 
If it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To 
prescribe, or take this oath, becomes equally a crime.

It is also not entirely unworthy of observation that, in declaring what 
shall be the supreme law of the land, the Constitution itself is first 
mentioned; and not the laws of the United States generally, but those only 
which shall he made in pursuance of the Constitution, have that rank.

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.



