Student Exercise: You Be the Judge
One of the apprent reasons for drafting a written constitution is to limit the power of a
government so created. That being the case a quandry arises when it is alleged that the
government has exceeded its lawful powers. Who then is to determine when this has occurred?
Two points of view are presented at the close of the Adams administration and the beginning of
the Jefferson administration. The background to both should be thoroughly reviewed in the text
before proceeding. Your assignment is to summarize the basic premises that form the argument
advanced in "The Virginia and Kentucky Resolutions" and do the same for the reasoning in the
Supreme Court decision of Marbury v Madison. Having done that, determine which argument is
the stronger.
The Virginia & Kentucky Resolutions
Resolved, That the several States composing the United States of America; are not united on
the principle of unlimited submission to their General Government; but that, by a compact under
the style and title of a Constitution for the United States, and of amendments thereto, they
constituted a General Government for special purposes,--delegated to that government certain
definite powers, reserving, each State to itself, the residuary mass of right to their own
self-government; and that whensoever the General Government assumes undelegated powers, its
acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State,
and is an integral party, its co-States forming, as to itself, the other party: that the government
created by this compact was not made the exclusive or final judge of the extent of the powers
delegated to itself; since that would have made its discretion, and not the Constitution, the
measure of its powers; but that, as in all other cases of compact among powers having no
common judge, each party has an equal right to judge for itself, as well of infractions as of the
mode and measure of redress
2. Resolved, That it is true as a general principle, and is also expressly declared by one of the
amendments to the Constitution, that "the powers not delegated to the United States by the
Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the
people;" and that no power over the freedom of religion, freedom of speech, or freedom of the
press being delegated to the United States by the Constitution, not prohibited by it to the States,
all lawful powers respecting the same did of right remain, and were reserved to the States or the
people: that thus was manifested their determination to retain to themselves the right of judging
how far the licentiousness of speech and of the press may be abridged without lessening their
useful freedom, and how far these abuses which cannot be separated from their use should be
tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by
the United States of the freedom of religious opinions and exercises, and retained to themselves
the right of protecting the same, as this State, by a law passed on the general demand of its
citizens, had already protected them from human restraint or interference. And that in addition to
this general principle and express declaration, another and more special provision has been made
by one of the amendments to the Constitution, which expressly declares, that "Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or
abridging the freedom of speech or of the press:" thereby guarding in the same sentence, and
under the same words, the freedom of religion, of speech, and of the press: insomuch, that
whatever violated either, throws down the sanctuary which covers the others, and that libels,
falsehood and defamation, equally with heresy and false religion, are withheld from the
cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed
on the 14th day July, 1798, intituled "An Act for the punishment of certain crimes against the
United States, which does abridge the freedom of the press, is not law, but is altogether void, and
of no force.
***
9th. Resolved, That the said committee be authorized to communicate by writing or personal
conferences, at any times or places whatever, with any person or persons who may be appointed
by any one or more co-States to correspond or confer with them; and that they lay their
proceedings before the next session of Assembly.
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Marbury v Madison: Opinion
February, 1803
WILLIAM MARBURY
v.
JAMES MADISON,
Secretary of State of the United States.
***
At the last term on the affidavits then read and filed with the clerk, a rule was granted in
this case, requiring the secretary of state to show cause why a mandamus should not
issue, directing him to deliver to William Marbury his commission as a justice of the peace
for the county of Wasnlngton, in the District of Columbia.<p>
No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this
case, the novelty of some of its circumstances, and the real difficulty attending the
points which occur in it require a complete exposition of the principles on which the opinion
to be given by the court is founded.
These principles have been, on the side of the applicant very ably argued at the bar. In rendering
the opinion of the court, there will be some departure in form, though not in subtance, from the
points stated in that argument.
In the order in which the court has viewed this subject, the following questions have been
considered and decided.
1st. Has the applicant a right to the commision he demands?
2d. If he has a right, and that right has been violated, do the laws of his country afford him
a remedy?
3d. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of inquiry is, 1st. Has the applicant a right to the commission he demands?
His right originates in an act of congress passed in February, 1801, coneerning tha District of
Columbia.
(The Court answered this in the affirmative)
***
To withhold his commission, therefore, is an act deemed by the court not warranted by law,
but violative of a vested legal right.This brings us to the second inquiry; which<p>
2d. If he has a right, and that right has been violated, do the laws of this country afford him
a remedy?
The very essenee of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an injury. One of the first
duties of government is to afford that protection. ln Great Britain the king himself is sued in the
respectful form of a petition, and he never fails to comply with the judgment of his court.<p>
2d. 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.
It remains to be inquired whether, 3d He is entitled to the remedy for which he
applies. This depends on, 1st. The nature of the writ applied for; and, 2d. The power of 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 if 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.<p>
If it had been intended to leave it in the diseretion 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 such is to be the construction. 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 appellale; the distribution of jurisdiction, made in the
constitution, is form without substance.<p>
***
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 motion for that paper, and, therefore, seems not to belong to
appellate but to original jurisdiction. Neither is it necessary insuch 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.
***
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.<p>
So if a law be in opposition to the constitution; if both the law and the constitution apply to a
particular case, that the court must either decide that case conformably to thle law, disregarding
the constitution; or conformably to the constitution, disregarding the law; the court muat
determnine 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.
***
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 examinlng the instrument under which it arises?
This is too extravagant to be maintaind. In some cases, then, the constitution must be
looked into by the judges. And it they can open it at all, what part of it are they forbidden
to read or to obey?
***
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 thich shall be 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.