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To: President Thomas Jefferson
From: White House Counsel
Re: Concerns regarading Marbury v. Madison (1803)

I. Case Brief for Marbury v. Madison (1803)

A. Facts

Marbury and the other appointees (hereinafter ”Marbury”) were nominated by former President John Adams as judicial officers of Justices of the Peace in the District of Columbia (hereinafter “Justices of the Peace”). Marbury was then confirmed by the Senate and appointed by former President Adams. However, before President Adams left his presidential office, the appointment papers (called “commissions”) had not be delivered to Marbury. After President Thomas Jefferson starts his presidency, he refused to permit his Secretary of State, James Madison, to deliver the commissions. Therefore, Marbury sued Madison in the Supreme Court of the United States, asking the Court to compel Madison to deliver the commissions.

B. Issues

1. Do Marbury and other appointees have a right to the commission he demands?

2. If he has a right and if that right has been violated, do the laws afford him a remedy?

3. If the laws do afford him a remedy, should the Supreme Court issue a mandamus to grant that remedy?

C. Holdings

1. Yes.

2. Yes.

3. No.

D. Rationales

1. Issue 1

A nominee of the Justices of the Peace has a right to his office after the following steps have been completed: nomination by the President, consent by the Senate, appointment by the President, and signing of the commission by the President.

The Secretary of State is only required to affix the U.S. seal to all such appointments. Failure to affix the seal or deliver the commission does not negate the validity of the commission.
Here, Marbury was appointed because his commission was signed by former President Adams and sealed by the Secretary of State. Thus, Marbury has a right to hold his office, and the appointment is not revocable and independent of the President. The appointees’ rights are protected by the laws.

2. Issue 2

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.

Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.

Here, the statute requires the Secretary of State to apply a seal to commissions and deliver them, and that creates a specific duty. As a result, Marbuary acquires a right to receive such commissions. Therefore, Marbury is entitled to a remedy from the Court.

The dispute at issue is not like that case, where by the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. In such cases, the subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. And The discretion of the President can never be examinable by the courts.

3. Issue 3

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.”
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.

Here, Article III, Section 2, Clause 2 of the Constitution provides:“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 jurisdiction.” Thus, the Supreme Court has no jurisdiction over the cases other than what is listed in Article III, Section 2, Clause 2.

Thus, the Supreme Court has no jurisdiction to issue the writ of a mandamus.

E. Dictum

A law repugnant to the constitution is void; and the courts and other departments are bound by this principle.

This is specially true when the Constitution is a written one that limits the power of the several organs of government. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten.

There are indications in the text of the Constitution that it should prevail over conflicting statutes. According to Article III, Section 2, Clause 1, the judicial power of the United States is extended to all cases arising under the constitution.

Other provisions explicitly foresee that courts will be required to obey the Constitution rather than conflicting statutory law. Here are the examples. The constitution declares “that no bill of attainder or ex post facto law shall be passed.” “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.”

In declaring what shall be the supreme law of the United States in Article VI, Section 2, 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.

II. Whether we can publicly discount what the Supreme Court said about the legality of withholding the commission from Marbury as mere dictum.

The answer is no. It is clear in the issues one and two that the Supreme Court said that as long as the nomination procedure required by the law was complete, Marbury has a right to take his office. And those statements are relevant to the dispute in Marbury v. Madison. We cannot consider the Supreme Court’s decision mere dictum.

III. Whether the Supreme Court might declare unconstitutional and void the Repeal Act of 1802

The Supreme Court might not declare unconstitutional and void the Repeal Act of 1802. The Supreme Court seems to recognize that the Congress has a power to ordain and establish inferior courts in accord with Article III, Section 1. Thus, the Congress has a power to repeal Justices of the Peace by passing the Repeal Act of 1802 that abolished the jobs of the new circuit judges appointed by the Federalists.

IV. Whether, if Marbury v. Madison could be read broadly to mean the Supreme Court has the power to review and declare void acts of the President and the Congress on the grounds that they substantively violate the Constitution, the Republicans, under the President’s leadership, should instigate a constitutional amendment to “overrule” the Court

It is not politically wise to amend the Constitution for such politically-appointed jobs. As a majority in both branches, the Executive and the Congress, we now have a prevailing position to abolish the judicial officers that were created by the Federalists to control the Judicial branch. The situation is good to us. However, that may be changed in the next election. If the Federalists win next time, they may do the things again. And we do the Supreme Court to reserve its power to make the acts of the Federalists unconstitutional. Therefore, amending the current Constitution to “overrule” the Supreme Court’s opinion in Marbury v. Madison. may result in the destroy of the balance among three branches.