Marbury v. Madison

“ Lee, in Marbury v. Madison, 1 Cranch, 149, says not: though the Court, in that case, say, 'it does not depend on the office, but the nature of the offence: As to the President, see judge Story's Constitutional Law, 3d vol. 419; where it is stated that he is amenable to no civil process, to an officer of any department, to the speaker of the house of representatives, should he refuse to sign a law. The court asserts its right to interfere with all those officers, as to their acts of 'mere ministerial duty.'
Now, the remedy by mandamus is just as applicable to their acts of discretionary duty. ”

“ Modern litigation has progressed far from the paradigm of Marbury suing Madison to get his commission, Marbury v. Madison, 1 Cranch 137 (1803) , or Ogden seeking an injunction to halt Gibbons' steamboat operations. ”

“ Missouri, Marshall gave the opinion that certain certificates issued by a State in return for deposits, and intended to circulate as money, were bills of credit; and as such forbidden by the Constitution. There were three dissenting opinions; and soon after Marshall’s death, a different doctrine was established by the court,—wisely it would seem,—and has ever since been maintained. [35]
Coming now to the third class of cases{95} mentioned above, that which deals with the fundamental conceptions and theory of our American doctrine of constitutional law, Marbury v. Madison is the chief case. ”

“ The counsel for the defendant in error urge, in opposition to this rule of construction, some dicta of the Court, in the case of Marbury v. Madison.
It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. ”

“ 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. [p178]
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. ”

“ In laying the foundation in Marbury v. Madison for the Court's claim of power to pass on the constitutionality of acts of Congress, Marshall said: "The government of the United States has been emphatically [Pg xx] termed a government of laws and not of men". [41] Two pages along he added these words:
By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. ”

“ 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 recognise 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 has been erected. ”

“ 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. One of the first duties of government is to afford that protection. ”

“ Where the spirit is strong, there has heretofore been no impediment to producing only dictum through a 'case or controversy.' Indeed that tradition started with Marbury v. Madison, 1 Cranch 137, 2 L.Ed. ”

“ It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court. ”

“ It confirms that the Framers' single-minded focus in crafting the constitutional guarantee "to keep and bear Arms" was on military uses of firearms, which they viewed in the context of service in state militias.
The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for " [i] t cannot be presumed that any clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174 (1803) . ”

“ If one of the heads of departments commits any illegal act under colour of his office by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. ”

“ Yet in matters pertaining to constitutional construction, they seem to have had hardly any other function than to add the weight of their silent concurrence to the decision of their great chief. Thus the task of expounding the constitution during the most critical period of its history was his, and it was given to him to preside over the Supreme Court when it was called upon to decide four cases of vital importance: Marbury v. Madison, M‘Culloch v. Maryland, Cohens v. Virginia and Gibbons v. Ogden. In each of these cases it is Marshall who writes the opinion of the court ”

“ Marbury v. Madison, 1 Cr. 175; Ex parte Bollman, 4 Cr. 100, 101; Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 3 Peters, 193, S.C.. 7 Peters, 568; Cohens v. State of Virginia, 6 Wheat. 264; Osborn v. ”

“ Baker et al., states with much precision and explicitness the cases in which this writ may be used.
"Whenever," says that very able judge,
there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit) , and a person is kept out of possession, or dispossessed of such right, and [p169] has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government. ”

“ When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as the Legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and not appellate ”

“ But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated, and consequently, if the officer is by law not removable at the will of the President, the rights he has acquired are protected by the law, and are not resumable by the President. They cannot be extinguished by Executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source. ”

“ 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 [p177] 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. ”

“ But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden — as for example, to record a commission, or a patent for land, which has received all the legal solemnities ”

“ It enumerates two writs, but does not mention a mandamus. The reason is obvious; that had been provided for in the preceding section: congress could not have foreseen, in 1789, that any part of their legislation on the subject of mandamus would have been declared unconstitutional and void in 1803, and the decision in Marbury and Madison can have no bearing on the fourteenth section. ”

“ No act of the Legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the King to a subject is presumed to be impossible, Blackstone, Vol. ”

“ The established rule is that doubtful constitutional problems must not be considered, unless necessary to determination of the cause. The sometime suggestion that the Chief Justice indulged an obiter dictum is without foundation. The court must have appreciated that, unless it found Marbury had the legal right to occupy the office irrespective of the President's will, there would be no necessity for passing upon the much-controverted and farreaching power of the judiciary to declare an act of Congress without effect. ”

“ For example, the decision of Marbury vs. Madison, at the time and in the manner it was rendered, was compelled by the political situation then existing, unless the principle of judicial supremacy over legislation was to be abandoned. The Judiciary Debate of 1802 in Congress—one of the most brilliant as well as most important legislative engagements in parliamentary history—can no more be overlooked by the student of American Constitutional [Pg vi] development, than the opinion of Marshall in Marbury vs. Madison can be disregarded. ”

“ It may be the duty of a citizen to accuse every offender, and to proclaim every offence which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man. This fact certainly indicates the interest taken by Marbury in the escape of Fitzhugh, but goes no farther. ”

“ If they were right in that, and also in their views in respect to the powers of the Supreme Court, a mandamus would of course have been authorized to compel the treasury to pay the judges their salaries. Should they resume the Marbury and Madison case in the inferior courts, and proceed in this also, or should they abandon both and submit themselves to the stigma of having been the authors of false pretences and unfounded clamor, was the question to be met. ”

“ The Republicans had contaminated the country with falsehoods against the Federalist Administrations; and now the target of their "poisoned arrows" was the National Judiciary. "If ... they [the judges] have offended against the Constitution or laws of the country, why are they not impeached? The gentleman now holds the sword of justice. The judges are not a privileged order; they have no shelter but their innocence." [241]
In detail Bayard explained the facts in the case of Marbury vs. Madison. ”

“ Suppose Marbury had in consequence of the actual institution of a prosecution against Fitzhugh, refused to act under the deed. Would not a Court of Chancery have decreed him to execute the trust, or have appointed some other trustee to execute it? It certainly would.
It is then the opinion of the Court, that, even supposing the deed to have been executed in the hope and expectation that it would operate as a suppression of the prosecution, the favoured creditors having done nothing to excite that hope, and being entirely ignorant of the transaction, ought not to be affected by it. ”

“ After the testimony was concluded, the plaintiff in the Circuit Court moved that Court to instruct the jury, that if they find from the evidence the facts which it was offered to prove, and which are stated at large in the bill of exceptions, 'that then the jury may conclude from the said facts and evidence that the said deed was devised and executed by the said Fitzhugh, and accepted by the said William Marbury, with the motive and intent of prevailing with the holders of the said forged notes to forego a prosecution for the said forgeries ”

“ It is true that the State’s brief, in addressing the standard for granting federal habeas relief under 28 U. S. C. §2254 (d) , stated that this Court “ha [d] never held that dementia or memory loss is sufficient to show a lack of rational understanding,” Brief for Appellee 29, but that was because a claim under §2254 (d) must be based on a clearly established Supreme Court holding. ”

“ Whenever there is a power by which the exercise of a fundamental right or freedom is liable to be restricted, a constitution properly protective of human rights requires that such a power be clearly and carefully limited to avoid the danger of it being exercised arbitrarily or disproportionately. The rule of law so demands. It so demands for the purpose of preserving what Marshall CJ of the United States Supreme Court famously described in Marbury v. ”