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JOHN MARSHALL: Marbury v Madison In Marbury v Madison, Marshall declares for the first time that the Supr eme Court will be the arbiter of the constitutionality of congressional legislation. In 1801, having lost the recent Congressional and Presidential elections, the Federalists in Congress passed a judiciary act which created a numb er of new federal judgeships. Before leaving office President John Adams took the opportunity thus created to appoint a number of Federalists to these newly created positions. At the same time he appointed Secretary of State John Marshall as Chief Justice of the United States. One of Mar shall's last tasks as Secretary was to deliver a warrant to one William Marbury who had been appointed as a judge in the District of Columbia, w hich through oversight he failed to do. When Jefferson arrived in the Wh ite House, being skeptical of the power of judges to begin with and dist urbed by all the new Federalist judges just appointed ordered his Secret ary of State, James Madison, to withhold warrants not yet given. Under a clause of the Judiciary Act of 1789, Marbury sued for his warrant in th e Supreme Court. Thus Marshall was faced with a difficult decision-if he ordered the warrant delivered, and Jefferson (through Madison) refused, there was little the Court could do. Its power would be thus weakened, which would have pleased Jefferson. Instead, Marshall found that portion of the Judiciary Act under which Marbury was acting to be unconstitutio nal, thus claiming for the court the right of "judicial review,"-the pow er of the court to rule laws passed by Congress unconstitutional, when t hey arrived in the Court as the result of a suit. The first of Marshall' s great decisions-which has not gone unchallenged-is one of those that m ade him ":the man who made the Court Supreme"-in the words of one of his biographers. Marshall served until his death in 1835, making him one of the most influential men in shaping the course of the new nation under the Constitution. DECIDEDLY THE OPINION of the Court that when a commission has been signed by the President, the appointment is made; and that the com mission is complete when the seal of the United States has been affixed to it by the secretary of state. Where an officer is removable at the will of the executive, the circumsta nce which completes his appointment is of no concern, because the act is at any time revocable; and the commission may be arrested if still in t he office. But when the officer is not removable at the will of the exec utive, the appointment is not revocable and cannot be annulled. The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases where, by law, the officer is not remo vable by him. The right to the office is then in the person appointed, a nd he has the absolute, unconditional power of accepting or rejecting it . Mr Marbury, then, since his commission was signed by the President and s ealed by the secretary of state, was appointed; and as the law creating the office gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the o fficer legal rights, which are protected by the laws of his country. To withhold his commission, therefore, is an act deemed by the Court not warranted by law but violative of a vested legal right. The power of nominating to the Senate and the power of appointing the per son nominated are political powers to be exercised by the President acco rding to his own discretion. When he has made an appointment, he has exe rcised his whole power, and his discretion has been completely applied t o the case. If, by law, the officer be removable at the will of the Pres ident, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be m ade never to have existed, the appointment cannot be annihilated; and, c onsequently, if the officer is by law not removable at the will of the P resident, the rights he has acquired are protected by the law and are no t resumable by the President. They cannot be extinguished by executive a uthority, and he has the privilege of asserting them in like manner as i f they had been derived from any other source. It is, then, the opinion of the Court: First, that by signing the commission of Mr Marbury, the President of th e United States appointed him a justice of peace for the County of Washi ngton, in the District of Columbia, and that the seal of the United Stat es, affixed thereto by the secretary of state, is conclusive testimony o f 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. Second, 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 his country afford him a remedy. This, then, is a plain case for a mandamus, either to deliver the commiss ion or a copy of it from the record; and it only remains to be inquired 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 holdi ng office, under the authority of the United States." The secretary of state, being a person holding an office under the author ity of the United States, is precisely within the letter of the descript ion; 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 ther efore 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 o ne Supreme Court and such inferior courts as Congress shall, from time t o time, ordain and establish. This power is expressly extended to all ca ses arising under the laws of the United States and, consequently, in so me form, may be exercised over the present case because the right claime d 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, oth er public ministers, and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisd iction." It has been insisted, at the bar, that as the original grant of jurisdict ion to the Supreme and inferior courts is general, and the clause assign ing original jurisdiction to the Supreme Court contains no negative or r estrictive words, the power remains to the legislature to assign origina l jurisdiction to that Court, in other cases than those specified in the article which has been recited, provided those cases belong to the judi cial 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 t he tribunals in which it should be vested. The subsequent part of the se ction is mere surplusage-is entirely without meaning-if such is to be th e construction. If Congress remains at liberty to give this Court appell ate 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 i n the Constitution is form without substance. Affirmative words are often, in their operation, negative of other object s than those affirmed; and in this case, a negative or exclusive sense m ust be given to them, or they have no operation at all. It cannot be presumed that any clause in the Con...
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