decision of the
Supreme Court, speaking through Chief Justice Marshall in the famous
case of Marbury _v._ Madison[264] decided in February, 1803. The facts
of the case briefly stated are that Marbury had been appointed a justice
of the peace in the District of Columbia by John Adams almost at the
close of his administration, and John Marshall who was serving
simultaneously as Secretary of State failed to deliver to Marbury his
commission which had been signed before the new administration had
begun. One of the first acts of Jefferson was his instruction to
Secretary of State Madison to withhold commissions to office which
remained undelivered. Thereupon Marbury sought to compel Madison to
deliver the commission by seeking a writ of mandamus in the Supreme
Court in the exercise of its original jurisdiction and in pursuance of
section 13 of the Judiciary Act of 1789[265] which prescribed the
original jurisdiction of the Court and authorized it 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."

Marshall's Argument

In the portion of his opinion dealing with judicial review Marshall
began his argument with the assumption that "the people have an original
right to establish, for their future government, such principles as, in
their opinion, shall most conduce to their own happiness * * *" and,
once established, these principles are fundamental. Second, the
Government of the United States is limited in its powers by a written
Constitution. The Constitution either "controls any legislative act
repugnant to it; or, * * * the legislature may alter the Constitution by
an ordinary act." But the Constitution is paramount law and written as
such. "It is emphatically the province and duty of the judicial
department to say what the law is. * * * If two laws conflict with each
other, the courts must decide on the operation of each. * * * If, then,
the courts are to regard the Constitution, and the Constitution is
superior to any ordinary act of the legislature, the Constitution, and
not such ordinary act, must govern the case to which they both apply."
To declare otherwise, the Chief Justice concluded, would be subversive
of the very foundation of all written constitutions, would force the
judges to close their eyes to the Constitution, and would make the
judicial oath "a solemn mockery."[266] The Court