"The act of delivering or withholding a commission" is not "a mere political act, belonging to the executive department alone," but a ministerial act, the performance of which is directed by statute. Congress had ordered the Secretary of War to place the names of certain persons on the pension rolls; suppose that he should refuse to do so? "Would the wounded veteran be without remedy?... Is it to be contended that the heads of departments are not amenable to the laws of their country?"[379]
Would any person whatever attempt to maintain that a purchaser of public lands could be deprived of his property because a Secretary of State withheld his patent?[380] To be sure, the President had certain political powers and could appoint agents to aid him in the exercise of them. The courts had no authority to interfere in this sphere of Executive action. For example, the conduct of foreign affairs by the Secretary of State, as the representative of the President, can never be examinable by the courts. But the delivery of a commission to an office or a patent to land was a different matter.
When Congress by statute peremptorily directs the Secretary of State or any other officer to perform specific duties on which "the rights of individuals are dependent ... he cannot at his discretion sport away the vested rights of others." If he attempts to do so he is answerable to the courts. "The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority." The court therefore was empowered to decide the point; and held that Madison's refusal to deliver Marbury's commission was "a plain violation of that right, for which the laws of his country afford him a remedy."[381]
But was this remedy the writ of mandamus for which Marbury had applied? It was, said Marshall; but could such an order be directed to the Secretary of State? This was a task "peculiarly irksome, as well as delicate,"[382] for, he observed, there were those who would at first consider it "as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive." Far be it from John Marshall to do such a thing. He need hardly "disclaim all pretensions to such jurisdiction." Not "for a moment" would he entertain "an extravagance so absurd and excessive.... Questions in their nature political, ... can never be made in this court." But if the case before him presented only questions concerning legal rights of an individual, "what is there in the exalted station" of the Secretary of State which "exempts him from ... being compelled to obey the judgment of the law"? The only remaining question, therefore, was whether a mandamus could issue from the Supreme Court.[383]
In such manner Marshall finally arrived at the examination of the constitutionality of Section 13, which, he said, fitted the present case "precisely"; and "if this court is not authorized to issue a writ of mandamus" to Madison, "it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority."[384] In reaching this point Marshall employs almost seven thousand words. Fifteen hundred more words are used before he takes up the principle of judicial supremacy over legislation.
The fundamental law of the Nation, Marshall explained, expressly defined the original jurisdiction of the Supreme Court and carefully limited its authority. It could take original cognizance only of specific cases. In all others, the court was given nothing but "appellate jurisdiction." But he omitted the words that immediately follow in the same sentence—"with such exceptions ... as the Congress shall make." Yet this language had, for fourteen years, apparently been considered by the whole bench and bar as meaning, among other things, that while Congress could not take from the Supreme Court original jurisdiction in the cases specifically named in Article Three of the Constitution, Congress could add other cases to the original jurisdiction of the Supreme Court.
Marshall was quite conscious of all this, it would seem. In the argument, counsel had insisted that since "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."[385] But, reasons Marshall, in answer to this contention, if Congress could thus enlarge the original jurisdiction of the Supreme Court, "the subsequent part of the section[386] is mere surplusage, is entirely without meaning, ... is form without substance.... Affirmative words are often ... negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them, or they have no operation at all."[387]
That is to say, when the Constitution conferred upon the Supreme Court original jurisdiction in specified cases, it thereby excluded all others—denied to Congress the power to add to the jurisdiction thus affirmatively granted. And yet, let it be repeated, by giving original jurisdiction in cases specifically named, the Constitution put it beyond the power of Congress to interfere with the Supreme Court in those cases; but Marshall asserted that the specific grant of jurisdiction has "no operation at all" unless "a negative or exclusive sense" be given it.[388]
Marshall boldly held, therefore, that Section 13 of the Ellsworth Judiciary Act was "not warranted by the Constitution." Such being the case, ought the Supreme Court to act under this unconstitutional section? As the Chief Justice stated the question, could "an act, repugnant to the constitution ... become the law of the land"? After writing nearly nine thousand words, he now reached the commanding question: Can the Supreme Court of the United States invalidate an act which Congress has passed and the President has approved?
Marshall avowed that the Supreme Court can and must do that very thing, and in so doing made Marbury vs. Madison historic. In this, the vital part of his opinion, the Chief Justice is direct, clear, simple, and convincing. The people, he said, have an elemental right to establish such principles for "their future government, as ... shall most conduce to their own happiness." This was "the basis on which the whole American fabric had been erected." These "permanent" and "fundamental" principles, in the instance of the American Government, were those limiting the powers of the various departments: "That those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited ... if these limits may, at any time, be passed by those intended to be restrained?"[389]