46 [ TIIE SUPREME COIYRT AND CONSTITUTIONAL POLITICS A [ Establishing and Contesting the Power of_Judicial Review I 47

entitled "an act concerning aliens" is contrary to the Constitution, oneamendment to which has provided, that "no person shall be deprived of lib-erty without clue process of law," and that another having provided, "that inall criminal prosecutions, the accused shall enjoy the right to a public trial byan impartial jury, to be informed of the nature and cause of the accusation,to be confronted with the witnesses against him, to have compulsory processfor obtaining witnesses in his favour, and to have the assistance of counsel forhis defence" the same act undertaking to authorize the President to removea person out of the United States, who is under the protection of the law, onhis own suspicion, without accusation, without jury, without public trial,without confrontation of the witnesses against him, without having wit-nesses in his favour, without defence, without counsel, is contrary to theseprovisions, also, of the Constitution, is therefore not law, but utterly void

and of no force.That transferring the power of judging any person who is under the

protection of the laws, from the courts to the President of the United States,as is undertaken by the same act, concerning aliens, is against the article ofthe Constitution which provides, that "the judicial power of the UnitedStates shall be vested in courts, the judges of which shall hold their officesduring good behaviour" and that the said act is void for that reason also; andit is further to be noted, that this transfer of judiciary power is to that mag-istrate of the General Government, who already possesses all the executive,

and a qualified negative in all the legislative powers.

Marbury v. Madison

I CR. (5 U.S.) T37 (I803)

This case grew out of one of the great early struggles over the course of

constitutional politics. Shortly after the ratification of the Constitution,

two rival political parties emerged with widely different views of theConstitution and governmental power. The Federalists supported a

strong national government, including the power of the federal courts to

interpret the Constitution. Their opponents, the Anti-Federalists and

later the Jeffersonian-lKepublicans (who after the 1832 election became

known as Democrats), remained distrustful of the national government

and continued to favor the states and state courts. The struggle between

the Federalists and the JeKersonian-IKepublicans finally came to a head

with the election of 1800. The Jeffersonians defeated the Federalists,who had held office since the creation of the republic and feared what

the Jeffersonian-Republicans might do once in office.Before leaving office, President John Adams and his Federalist-

dominated Congress vindictively created a number of new judgeships

and appointed all Federalists in the hope that they would counter the

Jeffersonians once in office. But with time running out before the in-

anguration of Thomas Jefferson as president in 1801, not all of the

commissions for the new judgeships were delivered. John Marshall,

whom Adams had just appointed as chie£justice, continued to work assecretary of state, delivering the commissions. But he failed to deliver

seventeen commissions before Adams's term expired and left them

for his successor as secretary of state, James Madison, to deliver. The

Federalists' attempt to pack the courts infuriated the Jeffersonian-

IKepublicans. And President Jefferson instructed Madison not to deliverthe rest of the commissions.

William Marbury was one whose commission went undelivered.

He decided to sue to force Madison to give him his commission.

Specifically, he sought a writ of mandamus, which is simply a court order

directing a government official (Madison) to perform a certain act

(hand over the commission). Marbury argued that Section 13 of the Ju-diciary Act of 1789 had authorized the Supreme Court to issue such

writs. He saw this as a way of getting back his commission and for theMarshall Court to take a stand against the Jeffersonians.

Marbury v. Madison was a politically explosive case for the Courtand the country over the still-untested power of judicial review. The

Court faced a major dilemma. On the one hand, if the Marshall Court

ordered Marbury's commission, it was likely that Jefferson would refuse

to comply. The Court would then be powerless, perhaps permanently.On the other hand, if the Court refused to issue the writ, it would ap-

pear weak and that would confirm the Jeffersonian argument that thecourts had no power to intrude on the executive branch. Chief Justice

MarshaOd's opinion, handed down on February 24, 1803, however,

shrewdly asserted the power of judicial review and for the first time

overturned part of an act of Congress but gave Jefferson no oppor-

nity to retaliate and thus helped to defuse the political controversyurrounding the case. While Jeffersonians fervently disagreed with

Marshall's riding, there was little for them to do because Marshall hadnot ordered the delivery of Marbury's commission.

The Court's decision was unanimous.

-ÿ [] Chief Justice MARSHALL delivers the opinion of the Court.

At the last term on the affidavits then read and fried with the clerk, a-role 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 Mar-brat his commission as a justice of the peace for the county of Washington,in 'the District of Columbia.

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,

48 I THE SUPREME COURT AND CONSTITUTIONAL POLITICS A I Establishing and Contesting the Power of.Judicial Review [ 40

and the real difficulty attending the points which occur in it, require a com-plete exposition of the principles on which the opinion to be given by thecourt is founded.

These principles have been, on the side of the applicant very ably ar-gued at the bar. In rendering the opinion of the court, there ÿ be somedeparture in form, though not in substance, from the points stated in that ar-gnment.

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

1st. Has the applicant a right to the commission 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,Ist. Has the applicant a right to the commission he demands?His right originates in an act of congress passed in Febl-uary, 1801, con-

cerning the District of Columbia.After dividing the district into two counties, the 1 ith section of this law

enacts, "that there shall be appointed in and for each of the said counties,such number of discreet persons to be justices of the peace as the presidentof the United States shall, from time to time, think expedient, to continue inoffice for five years"

It appears, from the affidavits, that in compliance with this law, a corn-mission for William Marbury, as a justice of the peace for the county ofWashington, was signed by John Adams, then President of the United States;after which the seal of the United States was affixed to it; but the commis-sion has never reached the person for whom it was made out.

In order to determine whether he is entitled to this commission, it be-comes necessary to inquire whether he has been appointed to the office. Forif he has been appointed, the law continues him in office for five years, andhe is entitled to the possession of those evidences of office, which, beingcompleted, became his property.

The 2d section of the 2d article of the constitution declares, that "thepresident shall nominate, and, by and with the advice and consent of thesenate, shall appoint, ambassadors, other public ministers and consuls, and allother officers of the United States, whose appointments are not otherwiseprovided for."

The 3d section declares, that "he shall commission all the officers of theUnited States"

An act of congress directs the secretary of state to keep the seal of theUnited States, "to make out and record, and affix the said seal to all civilcommissions to officers of the United States, to be appointed by the presi-dent, by and with the consent of the senate, or by the president alone; pro-vided, that the said seal shall not be atÿed to any commission before thesame shall have been signed by the President of the United States"

These are the clauses of the constitution and laws of the United States,which affect this part of the case. They seem to contemplate three distinctoperations:

1st. The nomination. This is the sole act of the president, and is com-pletely voluntary.

2d. The appointment. This is also the act of the president, and is also avoluntary act, though it can only be performed by and with the advice andconsent of the senate.

3d. The commission. To grant a commission to a person appointed,might, perhaps, be deemed a duty enjoined by the constitution. "Heshall," says that instrument, "commission all the officers of the UnitedStates."...

The last act to be done by the president is the signature of the commis-sion. He has then acted on the advice and consent of the senate to his own

nomination. The time for deliberation has then passed. He has decided. Hisjudgment, on the advice and consent of the senate concurring with hisnomination, has been made, and the officer is appointed ....

It is . . . decidedly the opinion of the court, that when a commission

has been signed by the president, the appointment is made; and that thecommission is complete when the seal of the United States has been afÿed.to it by the secretary of state.

Where an officer is removable at the ÿ of the executive, the circum-• stance which completes his appointment is of no concern; because the act isat any time revocable; and the commission may be arrested, ifsÿll in the of-rice. But when the officer is not removable at the ÿ of the executive, theappointment is not revocable, and cannot be annulled. It has conferred legalrights which cannot be resumed ....

Mr. Marbury, then, since his commission was signed by the president,and sealed by the secretary of state, was appointed; and as the law creatingthe office, gave the officer a right to hold for five years, independent of theexecutive, the appointment was not revocable, but vested in the officer legalrights, which are protected by the laws of his country.

To withhold his commission, therefore, is an act deemed by the courtnot warranted by law, but violative of a vested legal right.

This brings us to the second inquiry; which is,2d. If he has a right, and that right has been violated, do the laws of this

country afford him a remedy?

The very essence of civil liberty certainly consists in the right of everyindividual to claim the protection of the laws, whenever he receives an in-jury. One of the first duties of government is to afford that protection. InGreat Britain the king himseK is sued in the respectfiJ1 form of a petition,and he never fails to comply with the judgment of his court ....

By the constitution of the United States, the president is invested withcertain important political powers, in the exercise of which he is to use hisown discretion, and is accountable only to his country in his political char-acter and to his own conscience. To aid him in the performance of these du-ties, he is authorized to appoint certain officers, who act by his authority,and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be en-tertained of the manner in which executive discretion may be used, stillthere exists, and can exist, no power to control that discretion. The subjectsare political. They respect the nation, not individual rights, and being in-trusted to the executive, the decision of the executive is conclusive ....

But when the legislature proceeds to impose on that officer other du-ties; when he is directed peremptorily to perform certain acts; when therights of individuals are dependent on the performance of those acts; he is so

SO [ THE SUPtiEME COURT AND CONSTITUTIONAL POLITICSA ! Establishing and Contesting the Power ofdudidaI Review ] ST

fat" the officer of the law; is amenable to the laws for his conduct; and can-not at his discretion sport away the vested rights of others.

The conclusion from this reasoning is, that where the heads of depart-ments are the political or comqdential agents of the executive, merely to ex-ecute the will of the president, or rather to act in cases in which theexecutive possesses a constitutional or legal discretion, nothing can be moreperfectly clear than that their acts are only politically examinable. But wherea specific duty is assigned by law, and individual rights depend upon the per-formance of that duty, it seems equally clear that the individual who consid-ers himseK injured, has a right to resort to the laws of his country for aremedy....

It is, then, the opinion of the Court,1st. 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, affixedthereto by the secretary of state, is conclusive testimony of the verity of thesignature, and of the completion of the appointment; and that the appoint-ment conferred on him a legal right to the office for the space of five years.

2d. That, having this legal tide to the office, he has a consequent rightto the commission; a refusal to deliver which is a plain violation of thatright, 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.1st. The nature of the writ ....

[T]o render the mandamus a proper remedy, the officer to whom it is tobe directed, must be one to whom, on legal principles, such writ may be di-rected; and the person applying for it must be without any other specific andlegal remedy.

1st. With respect to the officer to whom it would be directed. The in-timate political relation subsisting between the President of the United Statesand the heads of departments, necessarily renders any legal investigation ofthe acts of one of those high officers peculiarly irksome, as well as delicate;and excites some hesitation with respect to the propriety of entering intosuch investigation. Impressions are often received without much reflectionor examination, and it is not wonderful that in such a case as this the asser-tion, by an individual, of his legal claims in a court of justice, to whichclaims it is the duty of that court to attend, should at first view be consideredby some, as an attempt to intrude into the cabinet, and to intermeddle withthe prerogatives of the executive.

It is scarcely necessary for the court to disclaim all pretensions to suchjurisdiction. An extravagance, so absurd and excessive, could not have beenentertained for a moment. The province of the court is, solely, to decide onthe rights of individuals, not to inquire how the executive, or executive offi-cers, perform duties in which they have a discretion. Questions in their na-ture political, or which are, by the constitution and laws, submitted to theexecutive, can never be made in this court.

But, Kthis be not such a question; if, so far from being an intrusion intothe secrets of the cabinet, it respects a paper which, according to law, is uponrecord, and to a copy of which the law gives a right ....

If one of the heads of departments commits any illegal act, under colourof his office, by which an individual sustains an injury, it cannot be pre-tended that his office alone exempts him from being sued in the ordinarymode of proceeding, and being compelled to obey the judgment of the law.How, then, can his office exempt him from this particular mode of decidingon the legality of his conduct if" the case be such a case as would, were anyother individual the party complained of, authorize the process?

It is not by the office of the person to whom the writ is directed, butthe nature of the thing to be done, that the propriety or impropriety of issu-ing a mandamus is to be determined ....

This, then, is a plain case for a mandamus, either to deliver the commis-sion, 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 authorizesthe Supreme Court "to issue writs of mandamus in cases warranted by the.principles and usages of law, to any courts appointed, or persons holding of-rice, under the authority of the United States."*

The secretary of state, being a person holding an office under the au-thority 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 of-ricer, it must be because the law is unconstitutional, and therefore absolutelyincapable of conferring the authority, and assigning the duties which itswords purport to confer and assign.

The constitution vests the whole judicial power of the United States inone supreme court, and such inferior courts as congress shall, from time totime, ordain and establish. This power is expressly extended to all cases aris-ing 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 bya law of the United States.

In the distribution of this power it is declared that "the supreme courtshall have original jurisdiction in all cases affecting ambassadors, other publicministers and consuls, and those in which a state shall be a party. In all othercases, 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, assigMng orig-inal jurisdiction to the supreme court, contains no negative or restrictivewords, the power remains to the legislature, to assign original jurisdiction tothat court in other cases than those specified in the article which has beenrecited; provided those cases belong to the judicial power of the UnitedStates.

If it had been intended to leave it in the discretion of the legislature to

* Note that ChiefJnstice Marshall selectively quotes from Section 13 of the Judiciary Act of

1789, which he construes ostensibly to corder authority on the Court to hear Marbury's caseunder the Court's original jurisdiction and, in turn, declares unconstitutional. The relevant part

of Section 13 reads:

The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts ofthe several states, in the cases herein after specifically provided for; and shall have power to issuewrits of prohibition to the district courts, when proceeding as courts of adrniralty and maritimejurisdiction, and writs of mandamus, in cases warranted by the ÿrinciÿles and ....... cÿany courts appointed, or persons holding office under the authonÿ- ÿ.L .. -ÿ,ÿ oÿlaw, to, Ly uLule ureter btates.

5ÿ 1 THE SUPILKMÿ COURT AND CONSTITUTIONAL POLITICSA ] Establishing and Contesting the Power of JudiciaI Review [ 53

apportion to the judicial power between the supreme and inferior courts ac-cording to the will of that body, it would certainly have been useless to haveproceeded further than to have defined the judicial power, and the tribunalsin which it should be vested. The subsequent part of the section is mere sur-plnsage, is entirely without meaning, if such is to be the construction. Ifcongress remains at liberty to give this court appellate jurisdiction, wherethe constitution has declared their jurisdiction shall be original; and originaljurisdiction where the constitution has declared it shall be appellate; thedistribution of jurisdiction, made in the constitution, is form without sub-stance.

AfFirmative words are oÿen, in their operation, negative of other objectsthan those affirmed; and in this case, a negative or exclusive sense must begiven to them, or they have no operation at all.

It cannot be presumed that any clause in the constitution is intended tobe without effect; and, therefore, such a construction is inadmissible, unlessthe words require it.

If the solicitude of the convention, respecting our peace with foreignpowers, induced a provision that the supreme court should take originaljurisdiction in cases which might be supposed to affect them; yet the clausewould have proceeded no further than to provide for such cases, if no fur-ther restriction on the powers of congress had been intended. That theyshould have appellate jurisdiction in all other cases, with such exceptions ascongress might make, is no restriction; unless the words be deemed exclusiveof original jurisdiction.

When an instrument organizing fundamentally a judicial system, dividesit into one supreme, and so many inferior courts as the legislature may or-dain and establish; then enumerates its powers, and proceeds so far to dis-tribute them, as to define the jurisdiction of the supreme court by declaringthe cases in which it shall take original jurisdiction, and that in others it shalltake appellate jurisdiction; the plain import of the wor& seems to be, that inone class of cases its jurisdiction is original, and not appellate; in the other itis appellate, and not original. If any other construction would render theclause inoperative, that is an additional reason for rejecting such other con-struction, and for adhering to their obvious meaning.

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

It has been stated at the bar that the appellate jurisdiction may be exer-cised in a variety of forms, and that if it be the ÿ1l of the legislature that amandamus should be used for that purpose, that will must be obeyed. This istrue, yet the jurisdiction must be appellate, not original.

It is the essential criterion of appellate jurisdiction, that it revises andcorrects the proceedings in a cause already instituted, and does not createthat cause. Although, therefore, a mandamus may be directed to courts, yetto issue such a writ to an officer for the delivery of a paper, is in effect thesame as to sustain an original action for that paper, and, therefore, seems notto 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 establish-ing the judicial courts of the United States, to issue writs of mandamus to pub-

lic officers, appears not to be warranted by the constitution; and it becomesnecessary to inquire whether a jurisdiction so conferred can be exercised.

The question, whether an act, repugnant to the constitution, can be-come the law of the land, is a question deeply interesting to the UnitedStates; but, happily, not of an intricacy proportioned to its interest. It seemsonly necessary to recognize certain principles, supposed to have been longand well established, to decide it.

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

This original and supreme will organizes the government, and assigns to.L different departments their respective powers. It may either stop here, or es-

tablish 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 maynot be mistaken, or forgotten, the constitution is written. To what purposeare powers limited, and to what purpose is that limitation committed towriting, if these limits may, at any time, be passed by those intended to berestrained? The distinction between a government with limited and un-limited powers is abolished, if those limits do not confine the persons onwhom they are imposed, and if acts prohibited and acts allowed, are of equalobligation. It is a proposition too plain to be contested, that the constitutioncontrols any legislative act repugnant to it; or, that the legislature may alterthe constitution by an ordinary act.

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

If the former part of the alternative be true, then a legislative act con-trary to the constitution is not law: if the latter part be true, then writtenconstitutions are absurd attempts, on the part of the people, to limit a powerin its own nature illimitable.

Certainly all those who have framed written constitutions contemplatethem as forming the fundamental and paramount law of the nation, and,consequently, the theory of every such government must be, that an act ofthe legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and, is con-sequentiy, to be considered, by this court, as one of the fi-mdamental princi-ples of our society. It is not therefore to be lost sight of in the furtherconsideration 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 ef-fect? Or, in other words, though it be not law, does it constitute a nile as op-erative as if it was a law? This would be to overthrow in fact what wasestablished in theory; and would seem, at first view, an absurdity too gross tobe insisted on. It shall, however, receive a more attentive consideration.

54 ] THE SUrinaME COURT AND CONSTITUTIONAL POLITICSA [ Establishing and Contesting the Power of Judicial Review ] S.v

It is emphatically the province and duty of the judicial department tosay what the law is. Those who apply the role to particular cases, must ofnecessity expound and interpret that rule. If two laws conflict with eachother, the courts must decide on the operation of each.

So ira law be in opposition to the constitution; if both the law and theconstitution apply to a particular case, so that the court must either decidethat case conformably to the law, disregarding the constitution; or con-formably to the constitution, disregarding the law; the court must determinewhich of these conflicting rules governs the case. This is of the very essenceof judicial duty.

If, then, the courts are to regard the constitution, and the constitution issuperior to any ordinary act of the legislature, the constitution, and not suchordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the constitution is to beconsidered, in court, as a paramount law, are reduced to the necessity ofmaintaining that courts must close their eyes on the constitution, and seeonly the law.

This doctrine would subvert the very foundation of all written constitu-tions. It would declare that an act which, according to the principles andtheory of our government, is entirely void, is yet, in practice, completelyobligatory. It would declare that if the legislature shall do what is expresslyforbidden, such act, notwithstanding the express prohibition, is in reality ef-fectual. It would be given to the legislature a practical and real omnipotence,with the same breath which professes to restrict their powers within narrowlimits. It is prescribing limits, and declaring that those limits may be passed atpleasure.

That it thus reduces to nothing what we have deemed the greatest im-provement on political institutions, a written constitution, would ofitseKbesufficient, in America, where written constitutions have been viewed withso much reverence, for rejecting the construction. But the peculiar expres-sions of the constitution of the United States furnish additional arguments infavour of its rejection.

The judicial power of the United States is extended to all cases arisingunder the constitution.

Could it be the intention of those who gave this power, to say that inusing it the constitution should not be looked into? That a case arising un-der the constitution should be decided without examining the instrumentunder which it arises?

This is too extravagant to be maintained.

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

There are many other parts of the constitution which serve to illustratethis subject.

It is declared that "no tax or duty shall be laid on articles exported fromany 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 acase?. Ought the judges to close their eyes on the constitution, and only seethe law?

The constitution declares "that no bill of attainder or ex post facto lawshall be passed."

If, however, such a bill should be passed, and a person should be prose-cuted under it; must the court condemn to death those victims whom theconstitution endeavors 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 inopen court."

Here the language of the constitution is addressed especially to thecourts. It prescribes, directly for them, a rule of evidence not to be, departedfrom. If the legislature should change that rule, and declare one witness, or aconfession out of court, sufficient for conviction, must the constitutionalprinciple yield to the legislative act?

From these, and many other selections which might be made, it is ap-parent, that the framers of the constitution contemplated that instrument asa 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 beused as the instruments, and the knowing instruments, for violating whatthey swear to support!

The oath of office, too, imposed by the legislature, is completely de-monstrative of the legislative opinion on this subject. It is in these words: "Ido solemnly swear that I ÿ administer justice without respect to persons,and do equal right to the poor and to the rich; and that I vdll faithfia]ly andimpartially discharge all the duties incumbent on me as ÿ, accordingto the best of my abilities and understanding agreeably to the constitutionand laws of the United States."

Why does a judge swear to discharge his duties agreeably to the consti-tntion of the United States, if that constitution forms no rule for his govern-ment? 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. Toprescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring whatshall 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 shallbe made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United Statesconfirms and strengthens the principle, supposed to be essential to all writ-ten constitutions, that a law repugnant to the constitution is void; and thatcourts, as well as other departments, are bound by that instrument.

The rule must be discharged.

Eakin v. Raub2 SÿGFÿNT & tLawÿ 33o (PA., I825)

In this case invoMng the power of the Pennsylvania Supreme Court to

mvalictate a state law, Justice John Bannister Gibson wrote a dissenting

5ÿ [ ÿ SUPIÿEME COURT AND CONSTITUTIONAL POLITICS A ] Establishing and Contesting the Power offfudicial Review [ 57

opinion aimed at refuting Chief-Justice John Marshall's arguments for ju-

dicial review in Marbury v. Madison (1803) (see excerpt above). Note that

Justice Gibson's criticism of Marbury Was limited to the exercise of judi-

cial review over coequal branches of government. While he contendedthat state courts had no power to overturn state laws deemed to violate

the state constitution, Justice Gibson did not deny that state courts couldstrike down state laws that were inconsistent with federal law or the

Constitution. Moreover, twenty years later, Justice Gibson repudiatedthe

position taken in his opinion here. In Norris v. Clymer, 2 Pa. 277 (1845),he explained his change in "opinion for two reasons. The late conven-

tion (which drafted Permsylvania's state constitution), by their silence,

sanctioned the pretensions of the courts to deal freely with the Acts ofthe Legislature; and from experience of the necessity of the case."

[] Justice GIBSON, dissenting.

I am aware, that a right [in the judiciary] to declare all unconstitutionalacts void . . . is generally held as a professional dogma, but, I apprehend,rather as a matter of faith than of reason. I admit that I once embraced thesame doctrine, but without examination, and I shall therefore state the argu-ments that impelled me to abandon it, with great respect for those by whomit is still maintained. But I may premise, that it is not a little remarkable, thatalthough the right in question has all along been claimed by the judiciary, nojudge has ventured to discuss it, except Chief Justice MARSHALL, and ifthe argument of a jurist so distinguished for the strength of his ratiocinativepowers be found inconclusive, it may fairly be set down to the weakness ofthe position which he attempts to defend ....

I begin, then, by obserÿng that in this country, the powers of the judi-ciary are divisible into those that are FOLITICKL and those that are purelycivil. Every power by which one organ of the government is enabled to con-trol another, or to exert an influence over its acts, is a political power....

The constitution and the right of the legislature to pass the act, may bein collision. But is that a legitimate subject for judicial determination? If itbe, the judiciary must be a peculiar organ, to revise the proceedings of thelegislature, and to correct its mistakes; and in what part of the constitutionare we to look for this proud pre-eminence? Viewing the matter in the op-posite direction, what would be thought of an act of assembly in which itshould be declared that the supreme court had, in a particular case, put awrong construction on the constitution of the United States, and that thejudgment should therefore be reversed? It would doubtless be thought ausurpation of judicial power. But it is by no means dear, that to declare alaw void which has been enacted according to the forms prescribed in theconstitution, is not a usurpation of legislative power....

But it has been said to be emphatically the business of the judiciary, toascertain and pronounce what the law is; and that this necessarily involves aconsideration of the constitution. It does so: but how far? If the judiciary willinquire into anything besides the form of enactment, where shall it stop? . . .

In theory, all the organs of the government are of equal capacity; or, if

not equal, each must be supposed to have superior capacity only for thosethings which peculiarly belong to it; and as legislation pecuharly involves theconsideration of those limitations which are put on the law-making power,and the interpretation of the laws when made, involves only the construc-

tion of the laws themselves, it follows that the cpnstruction of the constitu-tion in this particular belongs to the legislature, which ought therefore to betaken to have superior capacity to judge of the constitutionality of its ownacts. But suppose all to be of equal capacity in every respect, why should oneexercise a controlling power over the rest? That the judiciary is of superiorrank, has never been pretended, although it has been said to be co-ordinate.It is not easy, however, to comprehend how the power which gives law to allthe rest, can be of no more than equal rank with one which receives it, andis answerable to the former for the observance of its statutes. Legislation isessentially an act of sovereign power; but the execution of the laws by in-struments that are governed by prescribed rules and exercise no power of

volition, is essentially otherwise .... It may be said, the power of the legis-lature, also, is limited by prescribed ntles. It is so. But it is neverthe-less, the power of the people, and sovereign as far as it extends. It cannotbe said, that the judiciary is coordinate merely because it is established bythe constitution. If that were sufficient, sheriff, registers of wSlls, andrecorders of deeds, would be so too. Within the pale of their authority,the acts of these officers ÿ have the power of" the people for their sup-port; but no one ÿ pretend, they are of equal dignity with the acts ofthe legislature. Inequality of rank arises not from the manner in which theorgan has been constituted, but from its essence and the nature of its fimc-

dons; and the legislative organ is superior to every other, inasmuch as thepower to will and to command, is essentially superior to the power to actand to obey. . . .

Everyone knows how seldom men think exactly ahke on ordinary sub-jects; and a government constructed on the principle of'assent by all its parts,would be inadequate to the most simple operations. The notion of a com-plication of counter checks has been carried to an extent in theory, of whichthe framers of the constitution never dreamt. When the entire sovereigutywas separated into its elementary parts, and distributed to the appropriatebranches, all things incident to the exercise of its powers were committed toeach branch exclusively. The negative which each part of the legislature mayexercise, in regard to the acts of the other, was thought sufficient to preventmaterial infractions of the restraints which were put on the power of thewhole; for, had it been intended to interpose the judiciary as an additionalbarrier, the matter would surely not have been left in doubt. The judgeswould not have been left to stand on the insecure and ever shifting groundof public opinion as to constructive powers; they would have been placed onthe impregnable ground of an express grant. They would not have beencompelled to resort to debates in the convention, or the opinion that wasgenerally entertained at the time ....

The power is said to be restricted to cases that are flee from doubt ordifficulty. But the abstract existence of a power cannot depend on the clear-ness or obscurity of the case in which it is to be exercised; for that is a con-sideration that cannot present itself, before the question of the existence ofthe power shall have been determined; and, if its existence be conceded, no

58 ] THE SUPREME COURT AND CONSTITUTIONAL POLITICS

considerations of pohcy arising from the obscurity of the particular case,ought to influence the exercise of it ....

To say, therefore, that the power is to be exercised but in perfectly clearcases, is to betray a doubt of the propriety of exercising it at all. Were thesame caution used in judging of the existence of the power that is inculcatedas to the exercise of it, the profession would perhaps arrive at a differentconclusion. The grant of a power so extraordinary ought to appear so plain,that he who should run might read ....

What I have in view in this inquiry, is the supposed right of the judici-ary to interfere, in cases where the constitution is to be carried into effectthrough the instrumentality of the legislature, and where that organ mustnecessarily first decide on the constitutionality of its own act. The oath tosupport the constitution is not peculiar to the judges, but is taken indiscrim-inately by every officer of the government, and is designed rather as a test ofthe pohtical principles of the man, than to bind the officer in the dischargeof his duty; otherwise it is difficult to determine what operation it is to havein the case of a recorder of deeds, for instance, who, in the execution of his

office, has nothing to do with the constitution. But granting it to relate tothe official conduct of the judge, as well as every other officer, and not to hispolitical principles, still it must be understood in reference to supporting theconstitution, only as far as that may be involved in his official duty; and, conse-quently, if his official dfity does not comprehend an inquiry into the author-ity of the legislature, neither does his oath ....

But do not the judges do a positive act in violation of the constitution,when they give effect to an unconstitutional law? Not if the law has beenpassed according to the forms established in the constitution. The fallacy ofthe question is, in supposing that the judiciary adopts the acts of the legisla-ture as its own; whereas the enactment of a law and the interpretation of itare not concurrent acts, and as the judiciary is not required to concur in theenactment, neither is it in the breach of the constitution which may be theconsequence of the enactment. The fault is imputable to the legislature, andon it the responsibility exclusively rests ....

But it has been said, that this construction would deprive the citizen ofthe advantages which are pecuhar to a written constitution, by at once de-claring the power of the legislature in practice to be illimitable .... But thereis no magic or inherent power in parchment and ink, to command respectand protect principles from violation. In the business of government a recur-rence to fn:st principles answers the end dan observation at sea with a viewto correct the dead reckoning; and for this purpose, a written constitution isan instrument of inestimable value. It is of inestimable value, also, in render-

ing its first principles familiar to the mass of people; for, after all, there is noeffectual guard against legislative usurpation but pubhc opinion, the force ofwhich, in this country is inconceivably great .... Once let public opinion beso corrupt as to sanction every misconstruction of the constitution and abuse

of power which the temptation of the moment may dictate, and the partywhich may happen to be predominant, will laugh at the puny efforts of a de-pendent power to arrest it in its course.

For these reasons, I am of [the] opinion that it rests with the people, inwhom fi.dl and absolute sovereign power resides, to correct abuses in legisla-tion, by instructing their representatives to repeal the obnoxious act. What is

A J Establishing and Contesting the Power of Judicial Review J 59

wanting to plenary power in the government is reserved by the eo le

their own immediate use- and tÿ -^-" .... 'ÿ- p p for, ,, -¢ÿ¢ÿs an mn:mgement of their rights inthis respect, would seem to be an accessory of the power thus reserved. It

might, perhaps, have been better to vest the power in the judiciary; as-itmight be expected that its habits of deliberation, and the aid derived fromthe arguments of counsel, would more frequently lead to accurate conclu-sions. On the other hand, the judiciary is not infallible; and an error by itwould admit of no remedy but a more distinct expression of the pubhc will,through the extraordinary medium of a convention; whereas, an error by thelegislan.tre admits of a remedy by an exertion of the same vÿA!, in the ordi-nary exercise of the right ofsuffrage---a mode better calculated to attain theend, without popular excitement. It may be said, the people wouldprobablynot notice an error of their representatives. But they would as probably doso, as notice an error of the judiciary; and, besides, it is a posn.date in thetheory of our government, and the very basis of the superstructure, that the

people are wise, virtuous, and competent to manage their own affairs; and ifthey are not so, in fact, still every question of this sort must be determinedaccording to the principles of the constitution, as it came from the hands ofthe framers, and the existence of a defect which was not foreseen, would not

justify those who administer the government, in applying a corrective inpractice, which can be provided only by convention ....

But in regard to an act of[a state] assembly, which is found to be in col-hsion with the constitution, laws, or treaties of the United States, I take theduty of the judiciary to be exactly the reverse. By becoming parties to thefederal constitution, the states have agreed to several limitations of their indi-vidual sovereignty, to enforce which, it was thought to be absolutely neces-sary to prevent them from giÿng effect to laws in violation of thoselimitations, through the instrumentality of their own judges. Accordingly, itis declared in the sixth article and second section of the federal constitution,that "This constitution, and the laws of the United States which shall bemade in pursuance thereof, and all treaties made, or which shall be madeunder the authority of the United States, shall be the supreme law of the land;and the judges in every state shall be BOUND thereby: anything in the taws or

constitution of any state to the contrary notwithstanding."

President Jackson's Veto Message of 1832

President Andrew Jackson distrusted banks and, as a westerner, op-

posed the policies of the Bank of the United States which limitedcredit for land speculation. When Congress rechartered the Bank in

1832, Jackson vetoed the bill with this message,* drafted by Secretaryof the Treasury (and later appointed as chief justice) Roger B. Taney.

The controversy over the establishment of the national bank and its im-

*- From dÿmÿs D. ÿhÿoÿ. ÿd..ÿ Co ,pitÿt¢o, of thÿ ÿ ÿ ÿ,d Pÿpÿ of thÿ'(Washington, DC: Bureau ofN " " rg Presidents

attonal Lxterature and Art, 1908), Vol. 2, 581-582.