case study 1 marbury v. madison 1803

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Marbury v. Madison

Following is the case brief for Marbury v. Madison, United States Supreme Court, (1803)

Case Summary of Marbury v. Madison

• Madison failed to finalize the former president’s appointment of William Marbury as Justice of the Peace.
• Marbury directly petitioned the Supreme Court for an equitable remedy in the form of a writ of mandamus .
• The Supreme Court held that although Marbury was entitled to a remedy, Section 13 of the Judiciary Act of 1789 expanding the Supreme Court’s original jurisdiction was unconstitutional.
• Prior to this case, no law had been rendered unconstitutional. The major significance of Marbury v. Madison is that it helped define the original jurisdiction of the United States Supreme Court.

Marbury v. Madison Case Brief

Statement of the Facts:

Towards the end of his presidency, John Adams appointed William Marbury as Justice of the Peace for the District of Columbia.  After assuming office, President Thomas Jefferson ordered James Madison not to finalize Marbury’s appointment.  Under Section 13 of the Judiciary Act of 1789, Marbury brought an action against Madison in the United States Supreme Court requesting the Court to issue a writ of mandamus to force delivery of the appointment.

Procedural History:

Marbury directly approached the Supreme Court to compel Madison, Jefferson’s Secretary of State, to deliver the commission to Marbury.

Issues and Holdings:

• Does Marbury hold a right to his judicial appointment?   Yes
• Is Marbury entitled to a remedy under U.S. law?   Yes
• Is Marbury entitled to a writ of mandamus under Section 13 of the Judiciary Act of 1789?   No

Chief Justice John Marshall denied issuing a writ of mandamus.

Rule of Law or Legal Principle Applied:

The United States Supreme Court has the authority to review both the legislative acts of congress and laws to determine if they comply with the Constitution .  

• Justice Marshall held that although Marbury was entitled to his commission, the United States Supreme Court could not hear the case because it lacked original jurisdiction.
• Marbury was lawfully appointed as Justice of the Peace through the president’s (Adams) signing of Marbury’s commission and Senate confirmation.
• Under federal law, Marbury is entitled to a remedy. Whether or not Marbury may receive a remedy is contingent upon whether the appointment made Marbury an agent of the president or assigned a duty by law. If appointed as a political agent of the president, Marbury is not entitled to a remedy. However, if Marbury was deprived of the ability to carry out a duty assigned to him by law, Marbury is entitled to a remedy. Here, Adams gave legal title to the office of Justice of the Peace to Marbury for the length of the appointment. Madison interfered with Marbury’s legal title when he refused to finalize Marbury’s appointment. As a result, Marbury is entitled to a remedy.
• Section 13 of the Judiciary Act of 1789 authorizing the United States Supreme Court jurisdiction to provide the remedy of a writ of mandamus is unconstitutional. The Judiciary Act of 1789 permits the Supreme Court to exercise original jurisdiction over causes of actions for writs of mandamus. The problem is the provision directly conflicts with the Constitution, specifically Article III. Article III serves as a limitation on the types of cases the Supreme Court has original jurisdiction over.  Cases not within the Supreme Court’s original jurisdiction may fall under the Court’s appellate jurisdiction. In short, Section 13 of The Act is unconstitutional since it attempts to expand the original jurisdiction of the Supreme Court.

Concurring/Dissenting Opinions :

Unanimous decision

Significance:

The holding of Marbury v. Madison established the United States Supreme Court’s power to determine whether a law passed by Congress was constitutional ( Judicial Review ). Prior to this case, it was clear that laws conflicting with the Constitution were invalid, but the branch of government who determined validity had not been established.

Student Resources:

http://www.pbs.org/wnet/supremecourt/democracy/landmark_marbury.html https://www.law.cornell.edu/supremecourt/text/5/137

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Marbury v. Madison

By: History.com Editors

Updated: August 20, 2021 | Original: December 2, 2009

Marbury v. Madison (1803) was a landmark U.S. Supreme Court decision that established for the first time that federal courts had the power to overturn an act of Congress on the ground that it violated the U.S. Constitution .

John Adams Rushes to Fill Seat on Supreme Court

The odd chain of events that led to Marbury v. Madison began in January 1801, when President John Adams , who had been defeated in his reelection bid, had to fill the Chief Justice seat on the U.S. Supreme Court that was being vacated by the ailing Oliver Ellsworth . Adams initially asked New York Governor John Jay , who had served as the nation’s first Chief Justice, to take the job again, but Jay turned him down. Adams then nominated his Secretary of State and close advisor, John Marshall , to fill the spot. Though the 45-year-old Marshall, a Revolutionary War veteran, had been a lawyer and a member of Congress before serving in Adams’ administration, he had no experience as a judge. Nevertheless, just a week after his nomination, the U.S. Senate unanimously confirmed him for the top spot on the court.

Adams still had two months left in his term and needed help, so he asked Marshall to do both the Secretary of State and Chief Justice jobs at once. As Cliff Sloan and David McKean write in their book The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court , that arrangement would present an impossible conflict of interest today. But in 1801, it might not have seemed such a big deal. Though the Constitution’s framers had intended the Supreme Court to head a judicial branch that shared power equally with the legislative and executive branches of the U.S. government, it wasn’t clear now much power the top court actually had. In those days, the court didn’t even have its own building; instead, it heard cases in a basement room in the U.S. Capitol.

Adams, meanwhile, rushed to fill as many other judicial positions as possible before his political enemy, Thomas Jefferson , took office. On the day before Adams’ term ended, he nominated 42 men to serve as justices of the peace, a lowly position that resolved minor legal cases. After the Senate approved his choices the next day, Marshall was assigned to finalize the paperwork and deliver the commissions. It was a lot of work and he didn’t get to four of them, including one belonging to a Virginia politician named William Marbury.

Jefferson Withholds Commissions, Marbury Petitions Court

When Jefferson took over the White House , he was irked by Adams’ last-second attempt to pack the federal courts with political allies. He told his own Secretary of State, James Madison , to withhold the four undelivered commissions. Marbury sued to get his job. As Georgetown University legal scholar Susan Low Bloch writes , Marbury could have gone to the U.S. Circuit Court of the District of Columbia, where he might have had a better chance of winning, based on that court’s previous rulings. But instead he went directly to the Supreme Court and petitioned for a writ of mandamus , ordering Madison to give them their commissions.

On February 10, 1803, the Supreme Court convened to hear the case. The Jefferson Administration was represented by Attorney General Levi Lincoln Sr., while Marbury’s side was argued by his predecessor Charles Lee . The case hinged on three issues. First, did Marbury and the other appointees have a right to their commissions? Second, if they did have a right that had been violated, did federal law provide a remedy? Finally, was an order from the U.S. Supreme Court the right remedy to solve the problem?

Marshall, who presided over the case despite having played a role in the events, found himself in a difficult position. Marbury had a good case, but if the court found in his favor, it wasn’t clear whether Jefferson would obey its decision or simply ignore it, which would have left the Supreme Court seriously weakened at a time when it was still carving out its authority. But if the court ruled in favor of the Jefferson Administration, it would look as if it had given in to political pressure.

The Marbury v. Madison Decision

The solution to the problem was an ingenious one. The court’s decision , written by Marshall, found that Marbury’s and the other appointees’ rights had been violated by Jefferson when he blocked their commissions, which already had been confirmed and affixed with seals. Additionally, Marbury was entitled to sue and seek a legal remedy, and a federal judge could issue a writ ordering Jefferson to comply.

But on the third question, things got even more complicated. The Supreme Court’s ability to hear Marbury’s case directly was based upon a portion of the Judicial Act of 1789 , which gave the court the power to issue writs directly to federal office holders, without a plaintiff having to go through a lower court. But as Marshall wrote, Article III, Section 2 of the Constitution already specified that the court had original jurisdiction in limited types of cases involving “ambassadors, other public ministers and consuls, and those in which a state shall be party,” and could only act as an appeals court in all others. Congress’s enlargement of the Supreme Court’s jurisdiction, therefore, was unconstitutional.

“The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written,” Marshall wrote.

As a result, Marshall concluded, “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 instrument.”

Supreme Court's Authority Is Established

The decision in Marbury v. Madison was immediately recognized across the nation as momentous, to the point that many newspapers reprinted it in full, according to Sloan and McKean. Though the idea that the Supreme Court could overrule an act of Congress actually predated Marbury v. Madison— Alexander Hamilton argued that point in The Federalist Papers in 1788—the principle now was firmly established in law.

Just as important, the ruling established the power of the federal courts over other branches of government to interpret the nation’s laws. “It is emphatically the province and duty of the judicial department to say what the law is,” Marshall wrote. “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.” Today, thanks to Marbury v. Madison , the federal courts’ authority is undisputed.

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Marbury v. Madison (1803)

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Marbury v. Madison (1803) was the U.S. Supreme Court case that established the Supreme Court’s power of judicial review . (Read the opinion  here ).

After President John Adams lost the 1800 election, but before he left office, he appointed Marbury as a justice of the peace and signed the commission. Soon thereafter, Thomas Jefferson became President of the United States and refused to allow Secretary of State James Madison to deliver the commission to Marbury. Marbury sued Madison in the Supreme Court to get his commission via a writ of mandamus .

Under Justice John Marshall, the Court specifically held that the provision in the 1789 Act granting the Supreme Court the power to issue a writ of mandamus was unconstitutional . More importantly, however, Marshall’s opinion established that the Supreme Court has the authority, under the  Supremacy Clause  and  Article III, § 2  of the Constitution, to review legislative or executive acts and find them unconstitutional, i.e., the power of judicial review. The Court also delineated the limits of the Supreme Court’s original jurisdiction , namely, stating that political questions are not reviewable by the federal courts. It also described the limitations on federal courts’ jurisdiction set forth in  Article III  of the Constitution. While  Marbury v. Madison limited federal court’s jurisdiction, it cemented the Court’s status as the ultimate interpreter of the Constitution.

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Milestone Documents

Marbury v. Madison (1803)

Citation: Show-cause order served on James Madison, Secretary of State, 1802; Records of the Supreme Court of the United States; Record Group 267; National Archives.

(The document shows damage from the 1898 fire in the Capitol Building.)

View Transcript

The decision in this Supreme Court Case established the right of the courts to determine the constitutionality of the actions of the other two branches of government.

In 1801, outgoing President John Adams had issued William Marbury a commission as justice of the peace — but the new Secretary of State, James Madison, refused to deliver it. Marbury then sued to obtain it. With his decision in  Marbury v. Madison , Chief Justice John Marshall established the principle of judicial review, an important addition to the system of “checks and balances” created to prevent any one branch of the Federal Government from becoming too powerful.

“A Law repugnant to the Constitution is void.” With these words written by Chief Justice Marshall, the Supreme Court for the first time declared unconstitutional a law passed by Congress and signed by the President. Nothing stated in the Constitution gave the Court this specific power. Marshall, however, believed that the Supreme Court should have a role equal to those of the other two branches of government.

When James Madison, Alexander Hamilton, and John Jay wrote a defense of the Constitution in  The Federalist , they explained their judgment that a strong national government must have built-in restraints: “You must first enable government to control the governed; and in the next place oblige it to control itself.” The writers of the Constitution had given the executive and legislative branches powers that would limit each other as well as the judiciary branch.

The Constitution gave Congress the power to impeach and remove officials, including judges or the President himself. The President was given the veto power to restrain Congress and the authority to appoint members of the Supreme Court with the advice and consent of the Senate. In this intricate system, the role of the Supreme Court had not been defined. It therefore fell to a strong Chief Justice like Marshall to complete the triangular structure of checks and balances by establishing the principle of judicial review. Although no other law was declared unconstitutional until the Dred Scott decision of 1857, the role of the Supreme Court to invalidate federal and state laws that are contrary to the Constitution has never been seriously challenged.

“The Constitution of the United States,” said Woodrow Wilson, “was not made to fit us like a strait jacket. In its elasticity lies its chief greatness.” The often-praised wisdom of the authors of the Constitution consisted largely of their restraint. They resisted the temptation to write too many specifics into the basic document. They contented themselves with establishing a framework of government that included safeguards against the abuse of power. When the Marshall decision in  Marbury v. Madison  completed the system of checks and balances, the United States had a government in which laws could be enacted, interpreted and executed to meet challenging circumstances.

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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. . . .

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 remedy?

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? . . .

It [is] decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state. . . .

To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.

This brings us to the second inquiry; which is 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

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. [The] government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. . . .

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. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. . . .

But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But 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. . . .

It is, then, the opinion of the Court [that Marbury has a] 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 enquired whether,

3dly. He is entitled to the remedy for which he applies. This depends on -- 1st. The nature of the writ applied for, and,

2dly. The power of this court.

1st. The nature of the writ. . . .

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 enquired,

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 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 jurisdiction."

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 vested. 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 such 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; then 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 enquire whether a jurisdiction, so conferred, can be exercised.

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 govern-ment, 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.

This theory is essentially attached to a written constitution, and is, conse-quently, 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 duty.

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 the 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 endeavors 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 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!

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 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 instrument.

The rule must be discharged

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New exhibit

The first amendment, supreme court case, marbury v. madison (1803).

5 U.S. 137 (1803)

“It is emphatically the province and duty of the Judicial Department to say what the law is.”

Selected by

Caroline Fredrickson

Visiting Professor, Georgetown University Law Center and Senior Fellow at the Brennan Center for Justice

Ilan Wurman

Associate Professor, Sandra Day O'Connor College of Law at Arizona State University

William Marbury received a judicial appointment from President John Adams, but his commission was not delivered before Adams’s term ended. When President Jefferson refused to deliver Marbury’s commission, Marbury asked the Supreme Court to order the new Administration to deliver it and finalize his appointment under the Judiciary Act of 1789. Although the Supreme Court held that it could not provide a remedy for Marbury’s claim because the relevant part of the Judiciary Act was unconstitutional, the Court’s decision in Marbury confirmed the principle of judicial review—that the Court has the power to declare laws unconstitutional.

Read the Full Opinion

Excerpt: Majority Opinion, Chief Justice John Marshall

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 recognise 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.

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.

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Legal Three

Marbury v. Madison (1803)

IRAC Summary: Marbury v. Madison (1803)

Issue: The primary legal issue in Marbury v. Madison centers on whether the petitioner, William Marbury, has a right to the commission he demands and whether the law provides him a remedy. Moreover, it questions whether the Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional.

Rule: The Constitution is the supreme law of the land, and any act of Congress that is in conflict with the Constitution is null and void. The Judiciary Act of 1789, insofar as it attempts to expand the original jurisdiction of the Supreme Court beyond what is specified in Article III of the Constitution, is in conflict with the Constitution and, therefore, invalid.

Application: Marbury had a right to his commission. The laws of the country afford him a remedy through the courts. However, the particular remedy he sought – a writ of mandamus – was to be issued by the Supreme Court as part of its original jurisdiction, which the Court found it did not have under the Constitution. While the Judiciary Act of 1789 granted the Court this power, the Act itself was unconstitutional to the extent that it expanded the Court’s original jurisdiction beyond what the Constitution permitted.

Conclusion: The Supreme Court held that Marbury was entitled to his commission, but it did not have the authority to issue a writ of mandamus because the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim to the Supreme Court was unconstitutional. This case established the principle of judicial review, giving the courts the power to strike down laws, statutes, and some government actions that contravene the U.S. Constitution.

Detailed IRAC Outline of Marbury v. Madison (1803)

Issue: – Whether Marbury is entitled to his commission as a justice of the peace. – Whether the Supreme Court has the authority to issue a writ of mandamus in this case. – Whether the Supreme Court has the power to declare an act of Congress unconstitutional.

Rule: – The Constitution is the paramount law and any legislative act contrary to the Constitution is not valid. – Article III of the Constitution defines the extent of the judiciary’s powers and Congress cannot expand it through the Judiciary Act of 1789. – A writ of mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.

Application: – Marbury’s Right to Commission: Marbury was entitled to his commission as it had been signed by the President and sealed by the Secretary of State. – Remedy: The law must provide a remedy for wrongful deprivation of Marbury’s commission. – Issuance of Writ of Mandamus: The Supreme Court analyzed whether it had the authority to issue a writ and concluded that the Judiciary Act of 1789, which gave the Court the power to issue writs of mandamus to public officers, extended the Court’s original jurisdiction in a manner inconsistent with the Constitution. – Power to Declare Unconstitutional Acts: The Supreme Court reasoned that it is emphatically the province and duty of the judicial department to say what the law is. If two laws conflict with each other, the court must decide on the operation of each. If a law is in opposition to the Constitution, the court must determine the application of the law and the Constitution, and where an act is contrary to the Constitution, it is the judiciary’s duty to adhere to the Constitution and treat the act as void.

Conclusion: – The Supreme Court concluded that Marbury had a legal right to his commission but that the Court did not have the authority to issue a writ of mandamus forcing its delivery because the provision of the Judiciary Act of 1789 that granted the Court this power was unconstitutional. – This landmark decision established the principle of judicial review, which allows the judiciary to declare a legislative or executive act as unconstitutional, thus providing a check on the other branches of government and upholding the rule of law.

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• Administrative Law Cases
• Judicial Review Cases

Marbury v Madison [1803] 5 US 137

Judgement for the case marbury v madison, table of contents.

An Act of Congress is a law passed by both houses and signed by the President.

The Secretary of War oversaw military affairs, now replaced by the Secretary of Defense.

The Report of Commissioners is an official document offering insights based on investigations.

A vested legal right is a secure entitlement, often rooted in statutes or contracts.

Original jurisdiction allows a court to hear a case for the first time. Appellate jurisdiction lets a higher court review and revise decisions made by lower courts.

Constitutional interpretation involves deciphering the U.S. Constitution's meaning.

The Oath of Office is a commitment taken by officials pledging allegiance and dedication to uphold their duties.

These elements shape the American legal and political system, ensuring governance, justice, and the protection of individual rights.

In the last days of President John Adams' term, he appointed several justices of the peace for the District of Columbia, including William Marbury.

The commissions, however, were not delivered before Adams's presidency ended. When Thomas Jefferson assumed office as the new president, his Secretary of State, James Madison, refused to deliver the undelivered commissions.

Marbury petitioned the Supreme Court for a writ of mandamus, a court order compelling an official to perform a duty, directing Madison to deliver the commissions.

Chief Justice John Marshall, who was also acting as Secretary of State at the time of the appointments, heard the case.

The central issue was whether the Judiciary Act of 1789, which granted the Supreme Court the power to issue writs of mandamus, was constitutional.

Chief Justice Marshall acknowledged that William Marbury had a legal right to his commission as a justice of the peace and that his appointment was valid.

The Court, however, declared that the portion of the Judiciary Act of 1789 that granted the Supreme Court the authority to issue writs of mandamus, including the one Marbury sought, was unconstitutional.

Chief Justice Marshall established the principle of judicial review. He argued that the judiciary had the duty to interpret the Constitution and determine the constitutionality of laws. In this case, Marshall asserted that the Court had the power to review acts of Congress and determine their constitutionality.

Marshall clarified that the Constitution's grant of original jurisdiction to the Supreme Court did not extend to cases like Marbury's. As a result, the Court could not issue a writ of mandamus in this circumstance.

Marbury v. Madison (1803) involved William Marbury's petition for a writ of mandamus to force Secretary of State James Madison to deliver his justice commission.

Chief Justice John Marshall acknowledged Marbury's right but declared the Judiciary Act of 1789 unconstitutional, establishing the principle of judicial review.

Marshall clarified the Constitution's original jurisdiction did not apply, preventing the Court from issuing the writ. T

his case shaped constitutional interpretation, affirming the judiciary's role in reviewing laws' constitutionality.

President John Adams' final days, he appointed justices of the peace, including William Marbury.

The undelivered commissions became a point of contention when President Thomas Jefferson took office, and Secretary of State James Madison refused to deliver them.

Marbury petitioned the Supreme Court for a writ of mandamus, compelling Madison to deliver the commissions.

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Marbury v. Madison, 5 U.S. 137 (1803)

Congress does not have the power to pass laws that override the Constitution, such as by expanding the scope of the Supreme Court’s original jurisdiction.

Thomas Jefferson defeated John Adams in the presidential election of 1800, which was decided on February 17, 1801. Before Jefferson took office on March 4, Adams and Congress passed the Judiciary Act of 1801, which created new district courts, expanded the number of circuit courts, added more judges to each circuit, gave the President more control over appointing federal judges, and reduced the number of Supreme Court Justices from six to five. This law essentially was an attempt by Adams and his political party to frustrate the incoming opposition, since he used his new power to appoint 16 new circuit judges and 42 new justices of the peace, a group known as the "Midnight Judges." The incoming appointees were approved by the Adams Senate, but their appointments were not valid until each of their commissions was delivered by John Marshall in his capacity as acting Secretary of State. Justices of the peace were entitled to serve a term of five years. One of the new appointees was William Marbury, a long-standing supporter of Adams who received the position of justice of the peace in the District of Columbia. As was the case with a handful of other new appointees, Marshall failed to deliver Marbury's commission before Adams left office and was succeeded by Jefferson. With the change in administration, Marshall also left his position as Secretary of State and was succeeded by James Madison. However, Jefferson ordered acting Secretary of State Levi Lincoln to cease delivering the commissions, thus preventing the new appointees from taking their positions. He assumed that they could be considered void, since they were not delivered on time. The machinations did not end there, moreover. The Jefferson Congress proceeded to replace the Judiciary Act of 1801 with a new Judiciary Act of 1802 that essentially restored the initial Judiciary Act of 1789. It also sought to delay the Supreme Court in hearing the inevitable challenge to the constitutionality of Jefferson's maneuver by canceling its term in June 1802. Marbury then filed a writ of mandamus with the Supreme Court, asking it to order the executive branch to deliver his commission.

• John Marshall (Author)
• William Paterson
• Samuel Chase
• Bushrod Washington

This was a rare case that arrived at the Supreme Court as the court of original jurisdiction rather than as an appeal from a lower court. Marshall and the other Justices needed to determine not only whether Marbury had a right to his commission but whether he had a remedy that could be enforced through the courts. Marshall found that a remedy could be implied because no right could exist without a remedy. Also, delivering the commission was a purely ministerial function of the executive branch. By ordering it to comply with its ministerial duties, the Court would not violate the separation of powers by encroaching on another branch's discretion. Marshall also ruled that a writ of mandamus was the proper way to seek a remedy but grappled with the question of whether the Supreme Court could issue it. He identified a conflict between the Judiciary Act of 1789 and the Constitution, each of which provided different parameters for the Court's original jurisdiction. Marshall rejected Marbury's argument that the Constitution merely served as a foundation on which Congress could build with later laws, finding that the Constitution trumped any laws and that Congress did not have the power to modify the Constitution through regular legislation. In explaining why the Constitution was supreme to all laws, he noted that the Supremacy Clause places the Constitution before the laws and that judges must take an oath to uphold the Constitution As a result, Marshall found that the section of the Judiciary Act of 1789 that purported to give the Supreme Court original jurisdiction over these matters was invalid because it violated the Constitution. [The Supreme Court consisted of only six Justices at this time, so Marshall's four-Justice opinion was unanimous because two of the Justices recused themselves.]

• William Cushing (Author)
• Alfred Moore

The Supreme Court uses its own understanding of the Constitution in reviewing the legitimacy of acts by other branches of the government, even though this power is not apparent from the plain text of the document. This case established the legitimacy of judicial review as well as the primacy of the Constitution over any other source of law. Many legal scholars of both Marshall's period and the contemporary era found the opinion's logic strained, basing a sweeping conclusion on relatively little textual support. Still, the concept of judicial review has long been accepted without challenge. Unfortunately for Marbury, he never received his appointment as a justice of the peace in the District of Columbia, merely because the commission was not delivered before Adams left office.

U.S. Supreme Court

Marbury v. Madison

5 U.S. (1 Cranch) 137

The clerks of the Department of State of the United States may be called upon to give evidence of transactions in the Department which are not of a confidential character.

The Secretary of State cannot be called upon as a witness to state transactions of a confidential nature which may have occurred in his Department. But he may be called upon to give testimony of circumstances which were not of that character.

Clerks in the Department of State were directed to be sworn, subject to objections to questions upon confidential matters.

Some point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And the power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission.

If the act of livery be necessary to give validity to the commission of an officer, it has been delivered when executed, and given to the Secretary of State for the purpose of being sealed, recorded, and transmitted to the party.

In cases of commissions to public officers, the law orders the Secretary of State to record them. When, therefore, they are signed and sealed, the order for their being recorded is given, and, whether inserted inserted into the book or not, they are recorded.

When the heads of the departments of the Government are the political or confidential officers of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But 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.

The President of the United States, by signing the commission, appointed Mr. Marbury a justice of the peace for the County of Washington, in the District of Columbia, and 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 the appointment conferred on him a legal right to the office for the space of five years. Having this legal right 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 the country afford him a remedy.

To render a mandamus a proper remedy, the officer to whom it is directed must be one to whom, on legal principles, such writ must be directed, and the person applying for it must be without any other specific remedy.

Where a commission to a public officer has been made out, signed, and sealed, and is withheld from the person entitled to it, an action of detinue for the commission against the Secretary of State who refuses to deliver it is not the proper remedy, as 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. It is a plain case for a mandamus, either to deliver the commission or a copy of it from the record.

To enable the Court to issue a mandamus to compel the delivery of the commission of a public office by the Secretary of State, it must be shown that it is an exercise of appellate jurisdiction, or that it be necessary to enable them to exercise appellate jurisdiction.

It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create the cause.

The authority given to the Supreme Court by the act establishing the judicial system of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution.

It is emphatically the 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 the rule. If two laws conflict with each other, the Court must decide on the operation of each.

If 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.

At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel,

Page 5 U. S. 138

severally moved the court for a rule to James Madison, Secretary of State of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the District of Columbia. This motion was supported by affidavits of the following facts: that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late President of the United States, nominated the applicants to the Senate for their advice and consent to be appointed justices of the peace of the District of Columbia; that the Senate advised and consented to the appointments; that commissions in due form were signed by the said President appointing them justices, &c., and that the seal of the United States was in due form affixed to the said commissions by the Secretary of State; that the applicants have requested Mr. Madison to deliver them their said commissions, who has not complied with that request; and that their said commissions are withheld from them; that the applicants have made application to Mr. Madison as Secretary of State of the United States at his office, for information whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory information has not been given in answer to that inquiry, either by the Secretary of State or any officer in the Department of State; that application has been made to the secretary of the Senate for a certificate of the nomination of the applicants, and of the advice and consent of the Senate, who has declined giving such a certificate; whereupon a rule was made to show cause on the fourth day of this term. This rule having been duly served,

Page 5 U. S. 139

Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court and were required to give evidence, objected to be sworn, alleging that they were clerks in the Department of State, and not bound to disclose any facts relating to the business or transactions of the office.

The court ordered the witnesses to be sworn, and their answers taken in writing, but informed them that, when the questions were asked, they might state their objections to answering each particular question, if they had any.

Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated in the affidavits occurred, was called upon to give testimony. He objected to answering. The questions were put in writing.

The court said there was nothing confidential required to be disclosed. If there had been, he was not obliged to answer it, and if he thought anything was communicated to him confidentially, he was not bound to disclose, nor was he obliged to state anything which would criminate himself.

The questions argued by the counsel for the relators were, 1. Whether the Supreme Court can award the writ of mandamus in any case. 2. Whether it will lie to a Secretary of State, in any case whatever. 3. Whether, in the present case, the Court may award a mandamus to James Madison, Secretary of State.

Page 5 U. S. 153

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Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

Required Supreme Court Case: Marbury v. Madison (1803)

To score well on your AP ® U.S. Government and Politics Exam, it is important to become familiar with all of the required Supreme Court cases. In the free-response section of your AP U.S. Government Exam, you will have to answer four essay questions. The third of these questions is a SCOTUS comparison essay, in which you will be required to compare a non-required Supreme Court case with a required Supreme Court case, so get to know each required Supreme Court case as well as possible!

The required Supreme Court cases for the AP U.S. Government and Politics Exam  in 2021 are:

Marbury v. Madison (1803) McCulloch v. Maryland (1819) Schenck v. the United States (1919) Brown v. Board of Education (1954) Engel v. Vitale (1962) Baker v. Carr (1962) Gideon v. Wainwright (1963) Tinker v. Des Moines Independent Community School District (1969) New York Times Co. v. United States (1971) Wisconsin v. Yoder (1972) Roe v. Wade (1973) Shaw v. Reno (1993) United States v. Lopez (1995) McDonald v. Chicago (2010) Citizens United v. Federal Election Commission (2010)

Marbury v. Madison

Marbury v. Madison is one of the required Supreme Court cases for AP U.S. Government and Politics . This case resulted in the landmark decision that established the authority of American courts to overturn laws and invalidate government actions that violate the Constitution.

Tom Richey delves deeper into the facts of the case in this video:

FACTS OF THE CASE

At the end of his presidency, Federalist John Adams appointed numerous individuals to positions within the government. The formalized appointments, known as commissions, were not delivered before the presidential turnover for four of these individuals, including William Marbury. When Democratic-Republican President Thomas Jefferson assumed office, his Secretary of State, James Madison, refused to deliver the commissions.

Marbury and the other three individuals who were refused their commissions sued and asked the Supreme Court to deliver a writ of mandamus, or judicial command, to force James Madison to deliver the commissions. The plaintiffs argued that section 13 of the Judiciary Act of 1789 gave the Court the authority to deliver a mandamus that would compel Madison to act.

THE DECISION

In a unanimous opinion, the Court ruled that the relevant provision within the Judiciary Act of 1789 was unconstitutional, noting that issuing writs of mandate was outside of the “original jurisdiction” of the Supreme Court as established in Article III of the constitution. Furthermore, the Court ruled that the Congress, in creating the Judiciary Act, had exceeded its authority. When an act of Congress is in conflict with the Constitution, Marshall wrote, the Court must uphold the Constitution as supreme.

The decision in Marbury v. Madison , written by Chief Justice John Marshall, was one of the most influential Supreme Court findings in American history. For the first time, the Court used the Constitution to overrule Congress. The decision played a crucial role in establishing the judiciary as equal to the executive and legislative branches of government and remains one of the foundational pillars of the American system of checks and balances. Because the Constitution itself says very little about the specific functions of the federal court system, the decision in Marbury v. Madison has become the pillar upon which every other Supreme Court decision stands.

PRECEDENT & SUBSEQUENT CASES

There is no precedent for Marbury v. Madison , but nearly all subsequent Supreme Court cases rely upon the precedent set in this case.

Judicial Review The power of federal courts to declare laws and government actions invalid when those laws of actions conflict with the Constitution. Separation of Powers/Checks and Balances  The American model of government wherein the legislative, executive, and judicial branches have independent powers and areas of responsibility; no individual branch has unchecked power. Writ of Mandamus An order from a court to a government official to fulfill their official duties.

The best way to get better at something is by practicing.

That’s why it’s so important that you take practice tests to help you get better at the AP U.S. Government and Politics Exam. Only then can you expect to get a good score—and even improve your score.

Download your free AP U.S. Government and Politics practice test HERE .

Download your printable study guide for all of the required supreme court cases here ..

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You must not:

• Modify copies of any materials from this site.
• Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
• Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.

If you wish to make any use of material on the Website other than that set out in this section, please contact us

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

Trademarks, logos, service marks, trade names, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors (collectively, the “ Trademarks ”). You must not use such Trademarks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.

Prohibited Uses

You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:

• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
• To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards set out in these Terms of Use.
• To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
• To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website or expose them to liability.

Additionally, you agree not to:

• Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
• Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
• Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
• Use any device, software, or routine that interferes with the proper working of the Website.
• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
• Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere with the proper working of the Website.

If you use, or assist another person in using the Website in any unauthorized way, you agree that you will pay us an additional $50 per hour for any time we spend to investigate and correct such use, plus any third party costs of investigation we incur (with a minimum $300 charge). You agree that we may charge any credit card number provided for your account for such amounts. You further agree that you will not dispute such a charge and that we retain the right to collect any additional actual costs.

User Contributions

The Website may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, “ Interactive Services “) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “ post “) content or materials (collectively, “ User Contributions “) on or through the Website.

All User Contributions must comply with the Content Standards set out in these Terms of Use.

Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

You represent and warrant that:

• You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
• All of your User Contributions do and will comply with these Terms of Use.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

For any academic source materials such as textbooks and workbooks which you submit to us in connection with our online tutoring services, you represent and warrant that you are entitled to upload such materials under the “fair use” doctrine of copyright law. In addition, if you request that our system display a representation of a page or problem from a textbook or workbook, you represent and warrant that you are in proper legal possession of such textbook or workbook and that your instruction to our system to display a page or problem from your textbook or workbook is made for the sole purpose of facilitating your tutoring session, as “fair use” under copyright law.

You agree that we may record all or any part of any live online classes and tutoring sessions (including voice chat communications) for quality control and other purposes. You agree that we own all transcripts and recordings of such sessions and that these Terms of Use will be deemed an irrevocable assignment of rights in all such transcripts and recordings to us.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website.

Monitoring and Enforcement: Termination

We have the right to:

• Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
• Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public, or could create liability for the Company.
• Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
• Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we do not undertake to review material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Content Standards

These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:

• Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
• Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
• Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
• Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy .
• Be likely to deceive any person.
• Promote any illegal activity, or advocate, promote, or assist any unlawful act.
• Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
• Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
• Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
• Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

(collectively, the “ Content Standards ”)

Copyright Infringement

If you believe that any User Contributions violate your copyright, please contact us  and provide the following information:

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
• A description of the copyrighted work that you claim has been infringed;
• A description of where the material you claim is infringing is located on the website (and such description must reasonably sufficient to enable us to find the alleged infringing material);
• Your address, telephone number and email address;
• A written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
• A statement by you, made under the penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

We may terminate the accounts of any infringers.

Reliance on Information Posted

From time to time, we may make third party opinions, advice, statements, offers, or other third party information or content available on the Website or from tutors under tutoring services (collectively, “Third Party Content”). All Third Party Content is the responsibility of the respective authors thereof and should not necessarily be relied upon. Such third party authors are solely responsible for such content. WE DO NOT (I) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY THIRD PARTY CONTENT ON THE SITE OR ANY VERIFICATION SERVICES DONE ON OUR TUTORS OR INSTRUCTORS, OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY TUTOR OR INSTRUCTOR OR ANY PARTY THAT APPEARS ON THE WEBSITE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSBILE OR LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONENT POSTED ON OR AVAILBLE FROM THE WEBSITE.

Changes to the Website

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

Information About You and Your Visits to the Website

All information we collect on this Website is subject to our Privacy Policy . By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

Online Purchases and Other Terms and Conditions

All purchases through our site or other transactions for the sale of services and information formed through the Website or resulting from visits made by you are governed by our Terms of Sale, which are hereby incorporated into these Terms of Use.

Additional terms and conditions may also apply to specific portions, services, or features of the Website. All such additional terms and conditions are hereby incorporated by this reference into these Terms of Use.

Linking to the Website and Social Media Features

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.

This Website may provide certain social media features that enable you to:

• Link from your own or certain third-party websites to certain content on this Website.
• Send emails or other communications with certain content, or links to certain content, on this Website.
• Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.

You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:

• Establish a link from any website that is not owned by you.
• Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
• Link to any part of the Website other than the homepage.
• Otherwise take any action with respect to the materials on this Website that is inconsistent with any other provision of these Terms of Use.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Use.

You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

We may disable all or any social media features and any links at any time without notice in our discretion.

Links from the Website

If the Website contains links to other sites and resources provided by third parties (“ Linked Sites ”), these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. You acknowledge and agree that we have no control over the contents, products, services, advertising or other materials which may be provided by or through those Linked sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

You agree that if you include a link from any other website to the Website, such link will open in a new browser window and will link to the full version of an HTML formatted page of this Website. You are not permitted to link directly to any image hosted on the Website or our products or services, such as using an “in-line” linking method to cause the image hosted by us to be displayed on another website. You agree not to download or use images hosted on this Website or another website, for any purpose, including, without limitation, posting such images on another website. You agree not to link from any other website to this Website in any manner such that the Website, or any page of the Website, is “framed,” surrounded or obfuscated by any third party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Website be discontinued, and to revoke your right to link to the Website from any other website at any time upon written notice to you.

Geographic Restrictions

The owner of the Website is based in the state of New Jersey in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, your User Contributions, any use of the Website’s content, services, and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Website.

Governing Law and Jurisdiction

All matters relating to the Website and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction).

Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of New Jersey in each case located in the County of Monmouth although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. You may not under any circumstances commence or maintain against us any class action, class arbitration, or other representative action or proceeding.

Arbitration

By using this Website, you agree, at Company’s sole discretion, that it may require you to submit any disputes arising from the use of these Terms of Use or the Website, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying New Jersey law. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and us. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights may be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Any proceeding to enforce this arbitration provision, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration provision is for any reason held to be unenforceable, any litigation against Company must be commenced only in the federal or state courts located in Monmouth County, New Jersey. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.

Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Waiver and Severability

No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

Entire Agreement

The Terms of Use, our Privacy Policy, and Terms of Sale constitute the sole and entire agreement between you and Marco Learning LLC regarding the Website and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.

Communications and Miscellaneous

If you provide us your email address, you agree and consent to receive email messages from us. These emails may be transaction or relationship communications relating to the products or services we offer, such as administrative notices and service announcements or changes, or emails containing commercial offers, promotions or special offers from us.

Your Comments and Concerns

This website is operated by Marco Learning LLC, a New Jersey limited liability company with an address of 113 Monmouth Road, Suite 1, Wrightstown, New Jersey 08562.

Please contact us   for all other feedback, comments, requests for technical support, and other communications relating to the Website.

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