Supreme Court of the United
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.
- Has the applicant a right to the commission he demands?
- If he has a right, and that right has been violated, do the laws of his
country afford him a remedy?
If they do afford him a remedy, is it a mandamus issuing from this
. . . It is . . . the opinion of the court,
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
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,
He is entitled to the remedy for which applies. This depends on,
- The nature of the writ applied for and
- 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
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
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
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
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
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
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
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
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
There are many other parts of the Constitution which serve to illustrate
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
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
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
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