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20 Aug 08

http://ul451.gsu.edu/courts.gov/c/editedUS/22/22.US.1.html

ul451.gsu.edu/...22.US.1.html - Preview

19 Aug 08

Marbury v. Madison, 5 U.S. 137 (1803)

ul451.gsu.edu/...5.US.137.html - Preview

W]hether the legality of an act of the head of a department be
examinable in a court of justice or not, must always depend on the nature of
that act.

72
The acts of such an officer, as an officer, can never be examinable by the
courts.
17 more annotations...
- and cannot at his discretion sport away the vested rights of others.
- The conclusion from this reasoning is, that where the heads of
  departments are the political or confidential agents of the executive, merely to
  execute the will of the president, or rather to act in cases in which the
  executive possesses a constitutional or legal discretion, nothing can be more
  perfectly clear than that their acts are only politically examinable. But where
  a specific duty is assigned by law, and individual rights depend upon the
  performance of that duty, it seems equally clear that the individual who
  considers himself injured has a right to resort to the laws of his country for a
  remedy.
- 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 latest point of time which can be taken as that at which the appointment was
  complete, and evidenced, was when, after the signature of the president, the
  seal of the United States was affixed to the commission.
- 'this writ ought to be used upon all occasions where the law has established no
  specific remedy, and where in justice and good government there ought to be one.
- '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.'
- 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
- It is not by the office of the person to whom the writ is
  directed, but the nature of the thing to be done, that the propriety or
  impropriety of issuing a mandamus is to be determined. Where the head of a
  department acts in a case in which executive discretion is to be exercised; in
  which he is the mere organ of executive will; it is again repeated, that any
  application to a court to control, in any respect, his conduct, would be
  rejected without hesitation.
- 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; or to give a copy of such record; in
  such cases, it is not perceived on what ground the courts of the country are
  further excused from the duty of giving judgment, that right to be done to an
  injured individual, than if the same services were to be performed by a person
  not the head of a department.
- This difference is not considered as affecting the case
- Whether it can issue from this court.
  
  118
  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.'
- 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.
- 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
  case.
- 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.
- 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.
- 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.
- 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.
  
  164
  The rule must be discharged.

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