Govt of Laws; Not of Men

(Note: This 214 year-old judgement was quoted in the US Court of Appeal last week when dismissing Donald Trump’s Travel Ban appeal. This Chief Justice fought in the US War of Independence, so he is very firm on the importance of the US Constitution for which he and his colleagues risked their lives in a war. Dida).

“The government of the United States

has been emphatically termed

a government of laws, and not of men”


4th Chief Justice US Supreme Court

MARBURY v. MADISON, February 1, 1803 

Chief Justice MARSHALL delivered the opinion of the court.

“The power of the executive over an officer, not removable at the executives will, must cease when the constitutional power of appointment has been exercised”.

“It is the duty of the Secretary of State to conform to the Law, and in this he is an officer of the United States, bound to obey the Laws … He acts, in this respect … under the authority of Law, and not by the instructions of the President. It is a ministerial act which the Law enjoins on a particular officer for a particular purpose”.

“It is therefore decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made … But having once made the appointment, his power over the office is terminated in all cases, where by Law the officer is not removable by him”.

“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. In Great Britain the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court”.

“Commentaries, page 23, Blackstone states … it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at Law whenever that right is invaded … that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the Common Law courts of justice; for it is a settled and invariable principle in the Laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.’

“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”.

(But the contrary in “Foreign Affairs” – Dida) “ … 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 (concern) the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts”.

“But 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 … 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. The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority”.

“Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be, ‘a command issuing in the king’s name from the court of King’s Bench, and directed to any person, corporation, or inferior court of judicature within the King’s dominions, requiring them to do some particular thing therein specified which appertains to their office and duty, and which the court of King’s bench has previously determined, or at least supposes, to be consonant to right and justice. … this writ ought to be used upon all occasions where the Law has established no specific remedy, and where in justice and good government there ought to be one.’

“What is there in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim; or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of congress and the general principles of Law? If one of the heads of departments commits any illegal act, under colour of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the Law”.

“It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined”. “Where the head of a department is directed by Law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden … in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right to be done to an injured individual, than if the same services were to be performed by a person not the head of a department”.

“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”.

“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.”

“Affirmative words are often, in their operation, negative of other objects than those affirmed”

“If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning”.

“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”;

“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”.

“The government of the United States … the powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written … the constitution controls any legislative act repugnant to it”;

“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 … an act of the legislature repugnant to the constitution is void”.

“ … though it be not Law, does it constitute a rule as operative as if it was a Law? This would be an absurdity too gross to be insisted on”.

“It is emphatically the province and duty of the judicial department to say what the Law is … Those then who controvert the principle that the constitution is to be considered, in court, as a paramount Law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the Law … This doctrine would subvert the very foundation of all written constitutions … This is too extravagant to be maintained … the constitution must be looked into by the judges … 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 … It is in these words:

‘I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and Laws of the United States.’

“Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him. If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the Supreme Law of the land, the constitution itself is first mentioned; and not the Laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

“Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a Law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”