 The question on which rests the government of the United States is the Constitution. Like most important political documents, the Constitution is subject to interpretation. That is one of its great strengths. The Constitution is not a legal straight jacket. It is firm and yet flexible enough to meet the needs of an ever-growing, ever-changing nation. Naturally, the question arises, who is to say what the Constitution means? Who is to say, for example, whether a law enacted by Congress is constitutional or whether it is not? Congress, the President, the judiciary? The question arose during the very infancy of the republic. It brought face-to-face two eminent statesmen who have profoundly affected America as we know it today, President Thomas Jefferson and Chief Justice John Marshall. What Jefferson said was this, the voice of the people is supreme, let the people decide through their elected representatives what the Constitution means and what it means not. What John Marshall said, on the other hand, was this, the Constitution itself intends for the federal judiciary to make that decision, men who are appointed to the bench for life and who therefore stand above party strife and political turmoil. The difference of opinion of the two men on this crucial issue was resolved within the framework of a case known as Marbury versus Madison, a case which was heard before the Supreme Court in 1803 and which led to one of the most important decisions ever made by that court. Sometime during the fall of 1801, four men decided to pay a visit to the United States Department of State. And four men's names were Marbury, Ramsey, Harper, and Hull. President Adams, during the very last days of his administration, had nominated them as Justices of the Peace for the District of Columbia. The Senate had confirmed them. President Adams had signed their commissions and the then Secretary of State John Marshall had affixed to the commissions the seal of the United States. However, in the great flurry of activities during John Adams' exit from the political stage, these commissions had disappeared. Jefferson's Republicans were in power now. Thomas Jefferson was President and James Madison, Secretary of State. And the commissions of Marbury, Ramsey, Harper, and Hull had still not turned up. Gentlemen, I'm Mr. Marbury, William Marbury. This is Mr. Ramsey, Mr. Harper, Mr. Hull. We're here to see the Secretary of State. On what business? We'd prefer to put that directly to Mr. Madison. Mr. Madison has given instructions, very strict instructions, sir, that he be informed of his visitors business before they are admitted. Very well then. We're here to inquire into the whereabouts of four commissions, commissions for these gentlemen and myself as Justices of the Peace of the District of Columbia. The whereabouts? That's right, the whereabouts. We know that they were signed by the President and sealed, but they were never delivered to us. If you'll wait a moment, gentlemen. Ilseus, you won't. If he doesn't, I'll make him jump. You mark my words. Make him jump? There's little chance of that. You keep forgetting, Marbury, we lost the election. Mr. Jefferson is in charge now, and he'll play the tune, and we Federalists will do the jumping. We lost those commissions when we lost the election, and that is that. Well, I don't think that is that. We have a legal right to those commissions. Doesn't matter which party owns that desk. Marbury, let's go home. Not until he sees us. Gentlemen, I'm Mr. Wagner, the Chief Clerk. The Secretary has urgent business and cannot see you. He has directed me to talk to you. I'm at your service, gentlemen. Mr. Wagner, this matter concerns the Secretary himself. He cannot be disturbed. I'm sorry. If you will be so kind as to state your business. Mr. Wagner, the four of us were nominated by President Adams as Justices of the Peace for the District of Columbia. Former President Adams. The nominations were confirmed by the Senate. They were signed by the President, but they were never delivered to him. I know nothing about that. Nor I'm sure there's anyone else here, least of all Mr. Madison. You're aware, of course, that he didn't take office until May. I know that. However, Mr. Wagner, the commissions were last seen on a table in the State Department. Now, Mr. Madison is in charge of that department, and we intend to hold him responsible. I doubt that he'll accept that responsibility. Just so we don't misunderstand each other, Mr. Wagner. The withholding of an official document of the United States, a commission of office, is a crime for which a man is punishable under the law, even if that man is the Secretary of State. You're not considering, are you, taking the Secretary of State to court? Yes, we are, Mr. Wagner. As a matter of fact, we will take him to court if that's what it takes to force this department to produce our commission. You don't think any man is above the law, do you? The Secretary of State? The President himself? Now, Mr. Wagner, are you going to tell us about our commissions or not? I know nothing about them, sir. Nothing at all. Marbury and his companions would file a petition in the Supreme Court. What they demanded specifically was that the Secretary of State, James Madison, be forced by an order from that court to hand over to them the commissions to which they felt themselves entitled. The power to issue such an order, they knew, had been given to the Supreme Court by the Judiciary Act of 1789. The court then consisted of six men, Chief Justice John Marshall, Justice Alfred Moore, Justice William Patterson, Justice William Cushing, Justice Bushrod Washington, and Justice Samuel Chase, all appointed by either George Washington or John Adams. Let us assume the men have a case. Question. Is there a statute which would empower this court to hear it? There is. Section 13 of the Judiciary Act of 1789. The language, Mr. Patterson? Section 13, Mr. Chief Justice, authorizes us to issue court orders in cases warranted by the principles and usages of the law to any persons holding office under the authority of the United States. Then we can issue an order to the Secretary of State, directing him to produce these commissions. If the case warrants it. I see. I feel constrained to point out that this case should be decided to hear it, and should we have reason to find from Marbury that this case will set us on a collision course with President Jefferson. Now that he and his Republicans are in power, good, good. It's only a matter of time until they lay an ax to this court. The last remnant of their Federalist opposition. Now we have a chance to head them off. Only to be accused of acting from political motives. No, Mr. Chase. We would be furnishing Mr. Jefferson with ammunition. Irrelevant, whether we furnish him or not, he carries enough political cant in his head with which to load his cannon until the day of doom. We can't furnish him with ammunition. Mr. Marshall? Yes. Assuredly, this court has no business meddling with the executive or with his cabinet members. On the other hand, if Mr. Marbury is entitled to his commission, and if it's been wrongfully withheld from him, it appears this court has certain responsibilities. Responsibilities which I, for one, am willing to live up to. Thank heavens, Mr. Giles. There are some matters that brook no opinion. There's only one way to bake a tart or for marge. This is it. I thank God, Mr. President. No need to make light of it, Mr. Congressman. It's heaven. This, Mr. Marverson. Mr. President. What is that paper you have in your hand, Mr. Marverson? It's an order from the Supreme Court. What order? I've been asked to show cause why I should not be directed by the Supreme Court to produce certain commissions. Commissions as justice of the peace in the District of Columbia, the names of Marbury, Harper, Ramsey. Ignore it. Ignore the order. Nothing further? Nothing. My friend, the Chief Justice. What could have been more plain in the world than that he was just waiting for this opportunity? To strike at you, yes, Mr. President. To strike at the executive authority of this government. It's plain as day that he intends to furnish the opposition an opportunity to abuse you, to vilify you. It's not enough to ignore him, to do nothing. You have been attacked, Mr. President. Strike back. These commissions, Mr. President, do you know anything about them? I do, yes. I found them on the table of the State Department when I took office. I forbade their delivery. You hadn't arrived yet? Ah. You find this irregular? Consider. 42 commissions that Adam's crowded into the last hour of his administration. 42. And all of them picked from among my worst enemies. And with the simple motive of preventing me from staffing my administration with my own people, what else was I to do? Except for the life appointments which are irrevocable, I've treated them as a nullity. Expedient, but not altogether evil. What else could I do for so many years has this Republic been under Federalist rule? For so many years have we labored to drive them from the government. And now that we've done it, we have routed them from the legislature, routed them from the executive. They hang on thanks to Mr. Adams. They hang on to the judiciary like fleas to an old blanket. And the worst of it is we must feed and care for them while they try to strike down safe in their own fortress to strike down and ruin all the works of Republicanism. They must be. Move. Counter move, Mr. President. Repeal the Circuit Court Act. Repeal the entire judicial system. At one blow, we shall terminate all present office holders, create a new system entirely, and cut back the power of the courts to its proper limits. The people govern, not the courts. Well, that's madness, Mr. Giles. The judiciary system is perfectly adequate. It will suffice to replace its present occupants. Is it madness, Mr. President? Yes, Mr. Giles, it is. But in my present frame of mind, it's also a very tempting idea. Not practicable, but it is tempting. Now, the Circuit Court Act. Yes, I wish to see it repealed. As to replacing the present occupants of the judiciary, I think you're quite right, Mr. Madison. Yes, let's keep our eyes open for any opportunities to impeach two or three of these gentlemen, I think. That might have quite a good impression. That is not enough. Well, I shall not try to destroy the federal judiciary, Mr. Giles, although I wish to see its power curved. The Constitution prescribes that the three branches of the government balance each other, none is to dominate the other. If we permit the Supreme Court to concern itself with the business of the legislature and of the executive, we shall have conceded to them the right to control this business. And that is inconsistent with every idea of good government. Thomas Jefferson viewed the Supreme Court's action on behalf of William Marbury as an attack upon the executive. He retaliated first by means of the Congress. Under his direction, Congress repealed an important piece of federalist legislation, the Circuit Court Act of 1801. Congress then suspended the June and August terms of the Supreme Court. Next came impeachment proceedings against a federal judge by the name of Pickering. And finally, there were rumors that Supreme Court Justice Samuel Chase was marked for a similar fate. The rights of the individuals are at stake. Yes, of course. But there's a great deal more to it. The independence of this Court is at stake. The independence of this Court is provided by the Constitution. It's no longer merely a legal question that concerns us here. Congress has seen thoroughly to that, and I presume, under Mr. Jefferson's prompting, if we take it up now, we do political battle. However, the prospect of that may strike anyone else. I find it extremely distasteful. I find it hopeless. We are in midst of a battle. Yes, a battle which we cannot win. If we find for Mr. Marbury and order Mr. Madison to produce this accursed commission, what will happen? Nothing. Mr. Madison will simply ignore us. As we have no way to enforce our decisions, we shall have established ourselves as in irrelevancy. If, on the other hand, we find against Mr. Marbury, it will be said that we have vindicated the president because we fear his anger. Ridiculous. Quite so. No, we're damned either way. I've always thought that the greatest courage in angry heaven could inflict on a sinning and ungrateful people would be an ignorant, a corrupt, or a dependent judiciary. This court must give honorable proof of its independence, or it'll be said we don't deserve it. We're not and never should be in the business of making political warfare. Peace doesn't come from the absence of conflict Mr. Washington, but from the ability to cope with it. If a wrong has been committed, and if the Constitution authorizes us to act on it, does anyone claim that the secretary or even the president is above the law? And if they have violated the law, gentlemen, consider. Where can a man turn for the protection of his rights but to our courts of justice? Arguments in Marbury versus Madison were heard before the Supreme Court in February of 1803. Charles Lee represented Marbury and his companions. The secretary of state gentlemen is not above the law. Where he acts as an agent of the president, under the direct orders of the president, he may not be responsible to the courts. But he is also a public servant to the people of the United States. As such, he has duties which are assigned to him, not by the president, but by the law. In the execution of these duties, he is independent of all control, except the control of the law. The people can compel him to do these duties. And if he refuses, he must answer to the courts. Now, we do not wish to punish Mr. Madison for his refusal to surrender to Mr. Marbury, the commission to which unquestionably he is entitled. We wish to protect Mr. Marbury. And to see that he gets what is due him, this objective can be achieved by means of a court order to Mr. Madison demanding that he forthwith produce the commission which will install Mr. Marbury in the office for which he was nominated by President Adams and in which the Senate confirmed him. If a court order of this nature can be issued at all by this court, it can be issued to the Secretary of State. The act of Congress gives this court the power to award it in cases warranted by the principles and usages of the law to any persons holding office under the authority of the United States. Gentlemen, I think the case warrants it. On its face, the case had nothing to do with the question as to whose interpretation of the Constitution was the binding one. Yet Chief Justice Marshall made it the springboard for a crucially significant pronouncement on just that matter. He did so by questioning the constitutionality of the very act of Congress which had empowered the court to hear the case in the first place, section 13 of the Judiciary Act of 1789. Well, can there be any doubt that Marbury is entitled to his commission? Surely we can agree on that. Are we maintaining that for such a document to take effect, that it suffices for it to be signed by the president and to be sealed, that the act of delivery is irrelevant? The commission is valid from the moment it is signed and sealed. I think. You remind me of a fellow I had in the witness box, Mr. Chase, a great many years ago. Kept answering my questions with, I think. So I said to him, don't think. Tell us what you know. He replied, well, I'm not a lawyer. I can't talk without thinking. Now, three questions need to be answered in this order. Number one, has Marbury a right to the commission which he is claiming? Number two, if he has a right to said commission and that right has been violated, do the laws of the land offer him protection? Number three, if the laws of the land offer him protection, what can we do for him? Now, can we direct Madison to produce the commission due him? Can we? Of course we can. We heard this case precisely because section 13 of the Judiciary Act gave us the power to act, if necessary, in such manner. All right. Question one, I think we have an agreement here. This commission was signed, it was sealed, it is valid. Then we must have agreement on question two as well. If the commission is valid, if Marbury has a legal right to the Office of Justice of the Peace, then refusal to deliver that commission is a plain violation of that right, for which the law of the land offers him protection. Agreed, gentlemen? Now for the crucial question. Can the situation be remedied by an order from this court directing Mr. Madison to surrender the commission to Mr. Marbury? I thought that was agreed on from the beginning. Section 13 of the Judiciary Act empowers us to issue just such an order. It'll be ignored. Yes, but the law is clear. Is it really, Mr. Patterson? Is there any question of that? It might be of whether it is clear, of whether it is clearly the law. Nothing clearer, it was passed by Congress, signed by the President. Well, I've studied this section 13 closely. I've also refreshed my memory and, incidentally, my respect for that very excellent instrument, our Constitution. And the Constitution says that we have jurisdiction in cases such as this. Article 3, Section 2. But the case must come to us on appeal from our lower court, gentlemen. Here, look it up for yourself, Mr. Washington. Yes, of course. Marbury versus Madison did not come to us on appeal, gentlemen. It originated in this court. We have no jurisdiction. The case is closed. Not quite. Oh? Section 13 of the Judiciary Act is in conflict with the Constitution. I propose we make the point. How so? By declaring it unconstitutional. Section 13 presumes to give us jurisdiction where the Constitution plainly says we don't have it. I disagree, Mr. Chief Justice. I disagree. Section 13 merely says that we can issue a court order, quote, in cases warranted by the principles and usages of the law. It does not specify the nature of the case. It does not say in cases which originate in this court, nor does it say in cases which come to this court on appeal. Section 13 merely says in cases warranted by the principles and usages of the law. So Section 13 need not be construed as conflicting with the Constitution. All depends on how we interpret it. Mr. Patterson, can Section 13 be interpreted as giving us jurisdiction in a case like this that originates in this court? Yes, of course. Then it is in conflict with the Constitution. But we don't have to interpret it that way. But we can. And I urge that we do so. That we find Section 13 unconstitutional and that we so declare it. Gentlemen, I ask for your consent. Why is it not enough to say that we have no jurisdiction? Why go further? Why plain as day, Mr. Patterson? It's perfectly extraordinary, a declaration of independence, Mr. Patterson. By declaring Section 13 unconstitutional, an act passed by Congress and signed into law by the president, this court will have staked its claim to the right to say to the legislative and to the executive what the Constitution means and what it means not. Mr. Patterson, we shall have stated emphatically that it is the province of the judiciary department to say what the law is. But puzzles me, Mr. Marshall, is when we decided to hear this case on the basis of this Section 13, and when you first laid eyes on it, did you decide then that it was unconstitutional? Did it occur to you then that we might use this case? Sometimes our best opportunities come wrapped in our worst problems, Mr. It's always been my belief that the only way to safeguard the Constitution was to put it in the hands of the judiciary, not in the hands of the legislative, not of the executive. After all, the Constitution is either superior to the law, unchangeable by ordinary means, or it's on the level of ordinary legislative acts. Now, can we change whenever the legislative or the executive is pleased to change it? This be the case. If, say, the legislature were in a position to change the Constitution whenever it pleased, well, then a written Constitution would be merely an absurd attempt to limit the power of which by its very nature is illimitable. 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. John Marshall's decision in Marbury versus Madison was as follows. He said, the Constitution does not empower the Supreme Court to issue a direct order to Mr. Madison to produce the commission to which Mr. Marbury is legally entitled. In other words, he said, we have no jurisdiction in this case. But then, he went a step further. He said, section 13 of the Judiciary Act of 1789 purports to give the court a power which the Constitution, in fact, does not give it. Section 13, therefore, is unconstitutional. What on the surface looked like inter-party wrangling was used by Marshall to resolve a great political issue? The question, who is to say what the Constitution means, was answered. The Supreme Court, said John Marshall. President Jefferson disagreed. I disagree, yes. Of course, I disagree. Why should the Supreme Court and the Supreme Court only have the right to tell us what the Constitution means? The Constitution, which Mr. Marshall so cherishes, wills that the three branches of the government are equal. Equal, Mr. Madison. It is the Judiciary branch's province to tell us what the law is, claims Mr. Marshall, on what grounds. I ask you, on what grounds? Isn't that much in our Constitution to justify Mr. Marshall's claim? Let each branch of the government decide within the framework of the duties assigned it by the Constitution for itself and for itself only what the Constitution means and what it means not. No, that is proper. That is, in conformance with the principle of equality of the three branches. And if there had to be, there had to be one branch to interpret the Constitution for the others, I say let it be Congress. President Jefferson won his battle against Marbury and his companions. They never received their commissions. Chief Justice John Marshall, however, won the war to establish the Supreme Court as the final arbiter of the meaning of the Constitution. He declared for the first time an act of Congress signed into law by the President as unconstitutional. The right of the courts to pass on the constitutionality of laws, the principle of judicial review, was not new. It had been exercised before at the state level. In Marbury versus Madison, John Marshall extended it to encompass federal law. In so doing, he established the right of the Supreme Court of the United States to say what the Constitution means and what it means not, to the government of the states and to the federal government as well. Marbury versus Madison taught America that the Constitution cannot be ignored in settling great political issues. It stressed the limitations on governmental power provided by the instrument. And it affirmed the constitutional duty of the Supreme Court to decide if and when the political branches of government exceeded their constitutional bounds.