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Marbury v. Madison, 5 U.S. (1
Cranch) 137; 2 L. Ed. 60 (1803)

MR. JUSTICE 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?
. . . It is . . . the opinion of the court,

Cranch) 137; 2 L. Ed. 60 (1803)
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, 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.

Cranch) 137; 2 L. Ed. 60 (1803)
He is entitled to the remedy for which applies.
This depends on,
The nature of the writ applied for and
The power of this court.
. . . This, then, is a plain case for mandamus,
either to deliver the commission, or a copy of it
from the record; and it only remains to be
enquired, whether it can issue from this court.

Cranch) 137; 2 L. Ed. 60 (1803)
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 unconstitutional,
and therefore absolutely incapable of conferring
the authority, and assigning the duties which its
words purport to confer and assign.

The Constitution vests the whole judicial power of

Cranch) 137; 2 L. Ed. 60 (1803)
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.
The subsequent part of the section is mere
surplusage, is entirely without meaning. If
Congress remains at liberty to give this court
appellate jurisdiction, where the Constitution

Cranch) 137; 2 L. Ed. 60 (1803)
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. Although, therefore, a mandamus
may be directed to courts, yet to issue such a
writ to an officer for the delivery of a paper is in
effect the same as to sustain an original action
for that paper, and, therefore, seems not to
belong to appellate, but to original jurisdiction.
Neither is it necessary, in such a case as this,
to enable the court to exercise its appellate

Cranch) 137; 2 L. Ed. 60 (1803)
This original and supreme will organizes the
government, and assigns to different
departments their respective powers. It may
either stop here, or establish 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
may not be mistaken, or forgotten, the
Constitution is written. To what purpose are

Cranch) 137; 2 L. Ed. 60 (1803)
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 effect? Or, in other words, though it be
not law, does it constitute a rule as operative as
if it was a law? This would be to overthrow in
fact what was established in theory; and would
seem at first view, an absurdity too gross to be
insisted on. It shall, however, receive a more
attentive consideration.

Cranch) 137; 2 L. Ed. 60 (1803)
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

Cranch) 137; 2 L. Ed. 60 (1803)

For more goto: http://constitution.org/ussc/005-137a.htm

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