Chief Justice John 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 court?
In order to determine whether he is entitled to this commission, it
becomes necessary to inquire whether he has been appointed to the office
Mr. Marbury ... since his commission was signed by the president, and sealed by the secretary of state, was appointed ...
To withhold the 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 is, 2. If he has a right,
and that right has been violated, do the laws of his country afford him
a remedy? 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 ...
It is then the opinion of the Court, 1. That by signing the
commission of Mr. Marbury, the president of the United States appointed
him a justice of peace ... 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 years. 2. 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, 3. He is entitled to the remedy
for which he applies. This depends on, 1. The nature of the writ applied
for. 2. The power of this court. 1. The nature of the writ ...
This writ, if awarded, would be directed to an officer of government,
and its mandate to him would be ... "to do a particular thing therein
specified, which appertains to his office and duty, and which the court
has previously determined or at least supposes to be consonant to right
and justice ... "
These circumstances certainly concur in this case ...
This, then, is a plain case of a mandamus, either to deliver the
commission, 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 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
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 ...
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 ... "
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 ... 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 ...
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 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 ...
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
The powers of the legislature are defined and limited; and that those
limits may not be mistaken or forgotten, the constitution is written
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 ...
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 judicial duty ...
Questions to Consider
If the Supreme Court of the United States had issued the writ of mandamus,
how could it have forced Madison to comply with the order? What would
have happened if he had ignored it? (In other words, does the Court have
In the Court's opinion, is Marbury entitled to his appointment?
According to the decision, does the Supreme Court of the United States have the authority to issue a writ of mandamus to force Madison to deliver the commission? Explain. Is there any way to reverse the Court's decision?
In this case, Chief Justice John Marshall and the Court "gave up
some power in order to get more." Explain. What power did they give up?
What power did they gain? Why did the Court do this?
Why does the judicial branch, as opposed to the executive or legislative branch, have the power of judicial review?
Imagine that Jefferson, rather than Adams, had appointed the Chief
Justice of the Supreme Court. Would the outcome of this case, and the
future of the country, have been different? Why?