Mr. Chief Justice Marshall delivered the opinion of the Court.
At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this
case, requiring the secretary of state to show cause why a mandamus should not issue, directing
him to deliver to William Marbury his commission as a justice of the peace for the county of
Washington, in the district of Columbia.
No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this
case, the novelty of some of its circumstances, and the real difficulty attending the points which
occur in it, require a complete exposition of the principles on which the opinion to be given by the
court is founded.
These principles have been, on the side of the applicant, very ably argued at the bar. In rendering
the opinion of the court there will be some departure in form, though not in substance, from the
points stated in that argument.
In the order in which the court has viewed this subject, the following questions have been
considered and decided: --
1st. Has the applicant a right to the commission he demands?
2d. If he has a right, and that right has been violated, do the laws of his country afford him a
3d. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of inquiry is, --
1st. Has the applicant a right to the commission he demands?
His right originates in an act of Congress, passed in February, 1801, concerning the district of
It is, then, the opinion of the Court:
1st. That by signing the commission of Mr. Marbury, the President of the United States appointed
him a justice of the 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.
2d. That, having this legal title to the office, he has a consequent right to the commission; a
refusal to deliver which is a plain violation of that right, for which the laws of his country afford
him a remedy.
It remains to be inquired whether,
3d. He is entitled to the remedy for which he applies. This depends on,
1st. The nature of the writ applied for; and,
2d. The power of this court.
1st. The nature of the writ...
1st. With respect to the officer to whom it would be directed. The intimate political relation
subsisting between the President of the United States and the heads of departments, necessarily
renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well
as delicate; and excites some hesitation with respect to the propriety of entering into such
investigation. Impressions are often received without much reflection or examination, and it is not
wonderful that in such a case as this the assertion, by an individual, of his legal claims in a court of
justice, to which claims it is the duty of that court to attend, should at first view be considered by
some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the
It is scarcely necessary for the court to disclaim all pretensions of such jurisdiction. An
extravagance, so absurd and excessive, could not have been entertained for a moment. The
province of the court is, solely, to decide on the rights of individuals, not to inquire how the
executive, or executive officers, perform duties in which they have a discretion. Questions in their
nature political, or which are, by the constitution and laws, submitted to the executive, can never
be made in this court.
But, if this be not such a question; if, so far from being an intrusion into the secrets of the cabinet,
it respects a paper which, according to law, is upon record, and to a copy of which the law gives a
right, on the payment of ten cents; if it be no intermeddling with a subject over which the
executive can be considered as having exercised any control; what is there in the exalted station of
the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall
forbid a court to listen to the claim, or to issue a mandamus directing the performance of a duty,
not depending on executive discretion, but on particular acts of congress, and the general
principles of law?
If one of the heads of departments commits any illegal act, under colour of his office, by which an
individual sustains an injury, it cannot be pretended that his office alone exempts him from being
sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law.
How, then, can his office exempt him from this particular mode of deciding on the legality of his
conduct, if the case be such a case as would, were any other individual the party complained of,
authorize the process?
It is not by the office of the person to whom the writ is directed, but the nature of the thing to be
done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the
head of a department acts in a case, in which executive discretion is to be exercised; in which he is
the mere organ of executive will; it is again repeated, that any application to a court to control, in
any respect, his conduct would be rejected without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in
the performance of which he is not placed under the particular direction of the President, and the
performance of which the President cannot lawfully forbid, and therefore is never presumed to
have forbidden; as for example, to record a commission, or a patent for land, which has received
all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on
what ground the courts of the country are further excused from the duty of giving judgment that
right be done to an injured individual, than if the same services were to be performed by a person
not the head of a department.
This opinion seems not now, for the first time, to be taken up in this country.
It must be well recollected that in 1792, an act passed directing the Secretary of War to place on
the pension list such disabled officers and soldiers as should be reported to him, by the circuit
courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but
some of the judges thinking that the law might be executed by them in the character of
commissioners, proceeded to act, and to report in that character.
This law being deemed unconstitutional at the circuits was repealed, and a different system was
established; but the question whether those persons who had been reported by the judges, as
commissioners, were entitled, in consequence of that report, to be placed on the pension list, was
a legal question, properly determinable in the courts, although the act of placing such pensions on
the list was to be performed by the head of a department.
That this question might be properly settled, congress passed an act in February, 1793, making it
the duty of the Secretary of War, in conjunction with the attorney general, to take such measures
as might be necessary to obtain an adjudication of the Supreme Court of the United States on the
validity of any such rights, claimed under the act aforesaid.
After the passage of this act, a mandamus was moved for, to be directed to the Secretary of War,
commanding him to place on the pension list, a person stating himself to be on the report of the
There is, therefore, much reason to believe, that this mode of trying the legal right of the
complainant was deemed by the head of a department, and by the highest law officer of the United
States, the most proper which could be selected for the purpose.
When the subject was brought before the court, the decision was, not that a mandamus would not
lie to the head of a department directing him to perform an act, enjoined by law, in the
performance of which an individual had a vested interest; but that a mandamus ought not to issue
in that case; the decision necessarily to be made of the report of the commissioners did not confer
on the applicant a legal right.
The judgment, in that case, is understood to have decided the merits of all claims of that
description; and the person, on the report of the commissioners, found it necessary to pursue the
mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order
to place themselves on the pension list.
The doctrine, therefore, now advanced, is by no means a novel one.
It is true that the mandamus, now moved for, is not for the performance of an act expressly
enjoined by the statute.
It is to deliver a commission; on which subject the acts of congress are silent. This difference is
not considered as affecting the case. It has already been stated that the applicant has, to that
commission a vested legal right, of which the executive cannot deprive him. He has been
appointed to an office, from which he is not removable at the will of the executive; and being so
appointed, he has a right to the commission which the secretary has received from the President
for his use. The act of congress does not indeed order the secretary of State to send it to him, but
it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him
than by any other person.
It was at first doubted whether the action of detinue was not a specific legal remedy for the
commission which has been withheld from Mr. Marbury; in which case a mandamus would be
improper. But this doubt has yielded to the consideration that the judgment in detinue is for the
thing itself, or its value. The value of a public office not to be sold is incapable of being
ascertained; and the applicant has a right to the office itself, or to nothing. He will obtain the
office by obtaining the commission, or a copy of it from the record.
This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from
the record; and it only remains to be inquired,
Whether it can issue from this court.
The act to establish the judicial courts of the United States authorizes the Supreme Court "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."
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 the United States in one Supreme Court, and
such inferior courts as congress shall, from time to time, ordain and establish. This power is
expressly extended to all cases arising under the laws of the United States; and, consequently, in
some form, may be exercised over the present case; because the right claimed is given by a law of
the United States.
In the distribution of this power it is declared that "the Supreme Court shall have original
jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in
which a state shall be a party. In all other cases, the Supreme Court shall have appellate
It has been insisted, at the bar, that as the original grant of jurisdiction, to the Supreme and
inferior courts, is general, and 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 in the article which has been recited;
provided those cases belong to the judicial power of the United States.
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 invested. The subsequent part of the section is mere surplusage,
is entirely without meaning, if such is to be the construction. If congress remains at liberty to give
this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be
original; and original jurisdiction where the constitution has declared it shall be appellate, the
distribution of jurisdiction, made in the constitution, is form without substance.
Affirmative words are often, in their operation, 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.
It cannot be presumed that any clause in the constitution is intended to be without effect; and,
therefore, such a construction is inadmissible, unless the words require it.
If the solicitude of the convention, respecting our peace with foreign powers, induced a provision
that the Supreme Court should take original jurisdiction in cases which might be supposed to
affect them; yet the clause would have proceeded no further than to provide for such cases, if no
further restriction on the powers of congress had been intended. That they should have appellate
jurisdiction in all other cases, with suc exceptions as congress might make, is no restriction; unless
the words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system divides it into one supreme, and
so many inferior courts as the legislature may ordain and establish; the enumerates its powers, and
proceeds so far to distribute them, as to define the jurisdiction of the Supreme Court by declaring
the cases in which it shall take original jurisdiction, and that in others it shall take appellate
jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is
original, and not appellate; in the other it is appellate, and not original. If any other construction
would render the clause inoperative, that is an additional reason for rejecting such other
construction, and for adhering to their obvious meaning.
To enable this court then, to issue a mandamus, it must be shown to be an exercise of appellate
jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms,
and that if it be the will of the legislature that a mandamus should be used for that purpose, that
will must be obeyed. This is true, yet the jurisdiction must be appellate, not original.
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 jurisdiction.
The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of
the United States, to issue writs of mandamus to public officers, appears not to be warranted by
the constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be
The question, whether an act, repugnant 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; not
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
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.
This theory is essentially attached to a written constitution, and, is consequently, to be considered
by this court, as one of the fundamental principles of our society. It is not therefore to be lost
sight of in the further consideration of this subject.
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.
It is emphatically the province and duty of the judicial department to say what the law is. Those
who apply the rule to particular cases, must of necessity expound and interpret that rule. If two
laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a
particular case, so that the court must either decide that case conformably to the law, disregarding
the constitution; or conformably to the constitution, disregarding the law; the court must
determine which of these conflicting rules governs the case. This is of the very essence of judicial
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.
Those, then, who controvert the principle that the constitution is to be considered, in court, as a
paramount law, are reduced to the necessity of maintaining that courts must close their eyes on
the constitution, and see only the law.
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 narrow limits. It is prescribing limits, and declaring that those limits
may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political
institutions, a written constitution, would of itself be sufficient in America, where written
constitutions have been viewed with so much reverence, for rejecting the construction. But the
peculiar expressions of the constitution of the United States furnish additional arguments in
favour of its rejection.
The judicial power of the United States is extended to all cases arising under the constitution.
Could it be the intention of those who gave this power, to say that in using it the constitution
should not be looked into? That a case arising under the constitution should be decided without
examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases, then, the constitution must be looked into by the judges. And if they can open it at
all, what part of it are they forbidden to read or to obey?
There are many other parts of the constitution which serve to illustrate this subject.
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?
The constitution declares "that no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed, and a person should be prosecuted under it; must the
court condemn to death those victims whom the constitution endeavours to preserve?
"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 fo 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 the courts, as well as of
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies
in a 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.
The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative
opinion on this subject. It is in these words: "I do solemnly swear that I will administer justice
without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully
and impartially discharge all the duties incumbent on me as, according to the best of my abilities
and understanding, agreeably to the constitution and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the constitution of the United States,
if that constitution forms no rule for his government? If it is closed upon him, and cannot be
inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this
oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of
the land, the constitution itself is first mentioned; and not the laws of the United States generally,
but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens
the principle, supposed to be essential to all written constitutions, that a law repugnant to the
constitution is void; and that courts, as well as other departments, are bound by that
The rule must be discharged.
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