Marbury was an obscure justice of the peace, appointed by President Adams just before his term expired. The lame-duck Federalist administration went out of office before Marbury received his commission, and Marbury appealed to the Supreme Court to force James Madison, the new Secretary of State, to give it to him. The Supreme Court declared that Marbury deserved his commission but that it could not grant it. The reason was that the law saying the Court could do this was contrary to the Constitution and therefore invalid. In the portion of the decision that follows, Chief Justice Marshall argues the principle that Congress may not give powers not specifically authorized by the Constitution to the courts or to anyone else.
Excerpts from John Marshall’s Decision
The question whether an act, repugnant [opposed] to the Constitution, can become the law of the land is a question deeply interesting to the United States but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
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 is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
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 powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it or that the legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature 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.
Marshall goes on to refute the argument that the Supreme Court should concern itself only with interpreting the law, regardless of the Constitution. Then he quotes specific passages from the Constitution:
It is declared that “no tax or duty shall be laid on articles exported from any state.” Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution and only see the law?...
“No person,” says the Constitution, “shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Here the language of the Constitution is addressed especially to the courts. It prescribes directly for them, a rule of evidence not to be departed from. If the legislature should change that rule and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these, and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
At the end of the decision the Chief Justice concluded that the language of the Constitution confirmed and strengthened the principle essential to all written constitutions “that a law repugnant to the Constitution is void.”
The Louisiana Purchase
The great event of Jefferson’s first term was the acquisition of the Louisiana Territory, that vast tract of land extending from the Mississippi River to the Rocky Mountains, from the Canadian border to the Gulf of Mexico. The purchase of this land from Napoleon was not a premeditated act but rather the result of seizing an opportunity that presented itself. President Jefferson started out merely to buy New Orleans from France but ended up with more than 800,000 square miles. The agreed-on price was about $15,000,000, or something like two cents per acre.
Napoleon had forced Spain to give Louisiana back to France after Spain had held the territory nearly forty years. Just before the letter in the following account was written, the Spanish Intendant (director) of New Orleans, who had not yet turned over the city to France, closed the port to American commerce. Because most of the produce of the Ohio and Mississippi valleys reached eastern and foreign markets via New Orleans, closing the port seemed almost an act of war against the United States. At this point Jefferson sent James Monroe to Europe as special minister to buy New Orleans. It turned out just then that Napoleon needed money to renew his war against England, and the entire territory was purchased within a few weeks. The events which led to the purchase are described in the following letter that Jefferson wrote on February 3, 1803, to Robert Livingston, the American minister to France.