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Marbury v. Madison

April 29, 2012
Charles G. Mills, Fitzgerald Griffin Foundation

According to President Obama, it would be unprecedented if the Supreme Court were to declare an act of Congress unconstitutional.

Whether he truly believes this statement is dubious. Some observers, like Professor Lino Graglia of the University of Virginia, believe the power of the Court extends only to acts that directly contradict the plain language of the Constitution. Others believe the Constitution empowers the Court to find rights not even remotely mentioned. Still others believe that only the Supreme Court — and not the other two branches of government — can construe the Constitution; accordingly, for these advocates, the President has no duty to veto unconstitutional laws and Congressmen have no duty to vote against them.

Virtually everyone who has anything to say on the subject cites the 1803 case of Marbury v. Madison, which most fail to understand. William Marbury was one of many judges appointed by John Adams in the last days of his administration. Marbury was appointed as a justice of the peace for the District of Columbia. His commission was signed and sealed during the Adams administration, but the Jefferson administration refused to deliver it to him, maintaining that his appointment was not effective until it had been delivered. Marbury sought a writ of mandamus in the United States Supreme Court ordering the Secretary of State to give him his commission.

And now… the rest of the story. …..

2 Comments leave one →
  1. April 29, 2012 6:44 pm

    This is another issue created by political convenience that needs cleaning up, perhaps the Constitution party can researched. One thing I concluded long ago, and that goes for State Constitution as well. The Supreme Court and especially its State subdivision cannot be allowed to change the Constitution via Precedents. The trouble is in the Amendments and Precedents. A precedent is the result of issues of particular times. The Supreme Court can review a legistation and determine if it contradicts the Constitution. There is a loopholes created along the way in the Law that states a Congressional Law can be above a Supreme Court decision. But that is so vague and restricted I need to research in what cases that applies I think it was intended in decisions made by the Supreme Court in cases where ther legislation
    does not have a law but can issue one.

  2. Jim Delaney permalink
    April 29, 2012 9:38 am

    Nice synopsis. What is often overlooked is the founders’ intent–and Jefferson’s insistence–that to prevent any one branch exceeding its constitutional limits that each branch is within its constitutional rights to unilaterally construe the original meaning of the Constitution and, in effect, to ignore any manifestly unconstitutional law, order or ruling effected by any of the other branches. Prez Jackson believed this as well when he overruled SCOTUS regarding the Cherokee Nation. But, by in large, over the years SCOTUS has been allowed to usurp pre-eminence in the area of construing constitutionality with barely a wisper of protest from the other branches even when former has clearly overreached its constitutional restraints. This is why the 10th Amendment remains so very important, for if the federal gov’t consents to overreach by any one of its branches, the only remedy is State nullification. As Jefferson indicated, in such a case a State is “duty-bound” to nullify such excesses. And like many of his contemporaries, he believed that the final aribiter of what is and what is not constitutional rests squarely on “we the people”. Somehow, this has, for the most part, been lost in the shuffle.

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