KC Johnson

The Evolution of American Constitutionalism

John Marshall, Chief Justice of the Supreme Court (1801-1835)

John Marshall, Chief Justice of the Supreme Court (1801-1835)

Kyvig, Explicit & Authentic Acts, pp. 110-133.

Today’s class is the first of many over the course of the term in which we’ll be reading excerpts from Supreme Court decisions. Below is a primer on how to read court decisions, followed by excerpts from two key decisions of the Marshall Court: Marbury v. Madison (1803) and Dartmouth College v. Woodward (1819).


Primer on Reading Supreme Court Decisions

Keep the following points in mind when you read the case excerpts:

  • The title. The title in criminal cases always contains at least two names. The first name refers to the party that brought the action. It is always the government at the trial stage because the government initiates all criminal cases in the United States. The v. is an abbreviation of the Latin versus, meaning “against.” The second name refers to the party against which the action was brought. In Bostick v. State, for example, the title tells us that a person named Bostick appealed a decision by the state, in this case the state of Florida.
  • Appealing parties. The cases refer variously to parties that seek review of lower-court decisions. Most commonly, the appellate courts refer to the party who appeals as the appellant and to the party appealed against as the appellee. Both of these terms originate from the word appeal. A petitioner is a defendant whose case has come to the higher courts by petition. The principal petitions are certiorari, Latin for “to be certified,” and habeas corpus, Latin for “you should have the body.” Habeas corpus, a collateral attack, or separate proceeding from the criminal case itself, requires jailers, prison administrators, and others who hold defendants in custody to justify the detention of defendants who have petitioned the higher court to hear their cases. You can tell these proceedings by their title. Instead of a government name and a person’s name in the title, you will find two persons’ names, such as Adams v. Williams (Adams was the warden of the prison holding Williams; Williams was the prisoner).
  • The opinions. Most of the cases have at least two types of opinions, and sometimes three. The majority opinion, if one exists, is the law in the case. The Supreme Court currently has nine members; each has a vote and the right to submit an opinion. If all justices participate, five, a majority, can make the law. If the five agree to both the reasoning and the judgment or decision, the opinion is called a majority opinion. Sometimes, justices agree with the decision, or result, in the case, but they do not agree with the reasons for the decision. They write separate, concurring opinions, giving their own reasons for the decision.
  • If a majority of the justices agree with a result in the case but they cannot agree on the reasons for the result, the opinion with the reasoning agreed to by the largest number of justices is called a plurality opinion. Suppose, for example that seven justices agree with the result and four give one set of reasons, three give another set of reasons, and two dissent. The opinion to which the four subscribe is the plurality opinion. If justices do not agree with the court’s decision, whether plurality or majority, they can vote against the decision and write their own dissenting opinions explaining why they do not agree with either the reasoning, the result, or both. Often, the dissenting opinions point to the future; many majority opinions of today are based on dissents from the past. The late Chief Justice Charles Evans Hughes once said a dissent should be “an appeal to the brooding spirit of the law, to the intelligence of a future day.”

    The conflicting arguments and reasoning in the majority, plurality, concurring, and dissenting opinions will challenge you to think about the issues in the cases because, most of the time, all of the justices convincingly argue their views of the case. First, the majority’s and the concurring justice’s arguments will convince you; then, the dissent will lead you to the opposite conclusion. This interplay teaches you an important point: Plausible arguments support both the government’s position and the defendant’s position in most cases.

    The arguments in the majority, concurring, and dissenting opinions refer frequently to other cases that the court in this case or some other court has decided in the past. The prior cases are called precedent. The judges draw upon precedent to support their decisions because of the doctrine of stare decisis. The doctrine requires that once courts have decided cases, these prior decisions (precedent) bind later courts to follow them. The doctrine applies only to the prior decisions of their own court or courts superior to them in their own jurisdiction (the geographical area or the subject matter over which the court has the authority to make decisions).

    Supreme Court Justice Benjamin Cardozo once said about precedent and the doctrine of stare decisis: “It is easier to follow the beaten track than it is to clear another. In doing this, I shall be treading in the footsteps of my predecessors, and illustrating the process that I am seeking to describe, since the power of precedent, when analyzed, is the power of the beaten path.”




    JAMES MADISON, Secretary of State of the United States.

    February, 1803

    Mr. Chief Justice MARSHALL delivered the opinion of the court

    . . . The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it require a complete exposition of the principles on which the opinion to be given by the court is founded.

    These principles have been, on the side of the applicant very ably argued at the bar. In rendering the opinion of the court, there will be some departure in form, though not in substance, from the points stated in that argument.

    In the order in which the court has viewed this subject, the following questions have been considered and decided.

    1st. Has the applicant a right to the commission he demands?

    2d. If he has a right, and that right has been violated, do the laws of his country afford him a 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?

    His right originates in an act of congress passed in February, 1801, concerning the District of Columbia.

    After dividing the district into two counties, the 11th section of this law enacts, “that there shall be appointed in and for each of the said counties, such number of discreet persons to be justices of the peace as the president of the United States shall, from time to time, think expedient, to continue in office for five years.

    It appears, from the affidavits, that in compliance with this law, a commission for William Marbury, as a justice of the peace for the county of Washington, was signed by John Adams, then President of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out . . . It is, therefore, 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.

    Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable, and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.

    The discretion of the executive is to be exercised until the appointment has been 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 right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.

    Mr. Marbury, then, since his commission was signed by the President, and sealed by the Secretary of State, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country.

    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

    2d. If he has a right, and that right has been violated, do the laws of this 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. 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 . . . 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.

    It is, then, the opinion of the Court,

    1st. That by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace for the county of Washington, in the District of Columbia; and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment, and that the appointment conferred on him a legal right to the office for the space of five years.

    2d. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.

    It remains to be inquired whether,

    3d He is entitled to the remedy for which he applies. This depends on,

    1st. The nature of the writ applied for; and,

    2d. The power of this court.

    . . . This, then, is a plain case for a mandamus either to deliver the commission, or a copy of it from the record; and it only remains to be inquired,

    Whether it can issue from this court.

    The act to establish the judicial courts of the United States authorizes the Supreme Court to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

    The Secretary of State, being a person holding an office under the authority of the United States, is precisely within the letter of the description, and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.

    The constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and, consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.

    In the distribution of this power it is declared that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.

    It has been insisted, at the bar, that if 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 motion for that paper, and, therefore, seems not to belong to appellate but to original jurisdiction. Neither is it necessary in such a case as this to enable the court to exercise its appellate jurisdiction.

    The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution and it becomes necessary to inquire whether a jurisdiction so conferred can be 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 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 he 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 were 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 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 given 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 favor 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 it 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 tobaco 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 he 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 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.

    The rule must be discharged.


    U.S. Supreme Court

    Trustees of Dartmouth Coll. v. Woodward, 17 U.S. 4 Wheat. 518 518 (1819)




    The charter granted by the British Crown to the trustees of Dartmouth College, in New Hampshire, in the year 1769, is a contract within the meaning of that clause of the Constitution of the United States, art. 1, s. 10, which declares that no state shall make any law impairing the obligation of contracts. The charter was not dissolved by the Revolution.

    An act of the State Legislature of New Hampshire altering the charter without the consent of the corporation in a material respect, is an act impairing the obligation of the charter, and is unconstitutional and void.

    Under its charter, Dartmouth College was a private, and not a public, corporation. That a corporation is established for purposes of general charity, or for education generally does not, per se, make it a public corporation, liable to the control of the legislature.

    Mr. Chief Justice MARSHALL delivered the opinion of the Court.

    . . . The Superior Court of judicature of New Hampshire rendered a judgment upon this verdict for the defendant, which judgment has been brought before this court by writ of error. The single question now to be considered is do the acts to which the verdict refers violate the Constitution of the United States?

    This court can be insensible neither to the magnitude nor delicacy of this question. The validity of a legislative act is to be examined; and the opinion of the highest law tribunal of a State is to be revised — an opinion which carries with it intrinsic evidence of the diligence, of the ability, and the integrity, with which it was formed. On more than one occasion, this Court has expressed the cautious circumspection with which it approaches the consideration of such questions, and has declared that in no doubtful case would it pronounce a legislative act to be contrary to the Constitution. But the American people have said in the Constitution of the United States that “no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” In the same instrument, they have also said, “that the judicial power shall extend to all cases in law and equity arising under the Constitution.” On the judges of this Court, then, is imposed the high and solemn duty of protecting, from even legislative violation, those contracts which the Constitution of our country has placed beyond legislative control; and however irksome the task may be, this is a duty from which we dare not shrink.

    . . . The points for consideration are, 1. Is this contract protected by the Constitution of the United States? 2. Is it impaired by the acts under which the defendant holds?


    We are next led to the inquiry for whose benefit the property given to Dartmouth College was

    This is plainly a contract to which the donors, the Trustees, and the Crown (to whose rights and

    . . . The opinion of the Court, after mature deliberation, is that this is a contract the obligation of which cannot be impaired without violating the Constitution of the United States. This opinion appears to us to be equally supported by reason and by the former decisions of this Court.

    2. We next proceed to the inquiry whether its obligation has been impaired by those acts of the Legislature of New Hampshire to which the special verdict refers.

    From the review of this charter which has been taken, it appears that the whole power of governing the College, of appointing and removing tutors, of fixing their salaries, of directing the course of study to be pursued by the students, and of filling up vacancies created in their own body, was vested in the Trustees. On the part of the Crown, it was expressly stipulated that this corporation thus constituted should continue forever, and that the number of Trustees should forever consist of twelve, and no more. By this contract, the Crown was bound, and could have made no violent alteration in its essential terms without impairing its obligation.

    By the revolution, the duties as well as the powers, of government devolved on the people of New Hampshire. It is admitted that among the latter was comprehended the transcendent power of Parliament, as well as that of the executive department. It is too clear to require the support of argument that all contracts and rights respecting property, remained unchanged by the revolution. The obligations, then, which were created by the charter to Dartmouth College were the same in the new that they had been in the old government. The power of the government was also the same. A repeal of this charter at any time prior to the adoption of the present Constitution of the United States would have been an extraordinary and unprecedented act of power, but one which could have been contested only by the restrictions upon the legislature, to be found in the constitution of the State. But the Constitution of the United States has imposed this additional limitation — that the legislature of a State shall pass no act “impairing the obligation of contracts.”

    . . . According to the tenor of the charter, then, the Trustees might, without impropriety, appoint a President and other professors from their own body. This is a power not entirely unconnected with an interest. Even if the proposition of the counsel for the defendant were sustained, if it were admitted that those contracts only are protected by the Constitution, a beneficial interest in which is vested in the party, who appears in Court to assert that interest, yet it is by no means clear that the Trustees of Dartmouth College have no beneficial interest in themselves. But the Court has deemed it unnecessary to investigate this particular point, being of opinion on general principles that, in these private eleemosynary institutions, the body corporate, as possessing the whole legal and equitable interest and completely representing the donors for the purpose of executing the trust, has rights which are protected by the Constitution.

    It results from this opinion that the acts of the Legislature of New Hampshire which are stated in the special verdict found in this cause are repugnant to the Constitution of the United States, and that the judgment on this special verdict ought to have been for the plaintiffs. The judgment of the State Court must, therefore, be reversed.

    3 Responses

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    1. kcjohnson9 said, on February 18, 2009 at 3.27pm

      Upon what constitutional basis (if any) did Marshall base his decision in Marbury?

    2. Allen Korman said, on February 18, 2009 at 6.59pm

      Marshall used the concept that the Constitution was more than just another law. The Constitution, he felt, was the basic root that all laws that were passed by Congress grew out of. That if a law was passed that was not within the spirt of the Constitution, then it had to be unconstitutional.

    3. Matt Vadala said, on February 19, 2009 at 12.25pm

      Amusingly, the sole part of Marshall’s decision that had any constitutional basis was where he mentions the 2 possible jurisdictions the court may possess. He provides an analysis of this and determines the court has appellate jurisdiction. The analysis provided on the congressional legislation giving the court to pass writs of mandamus was as just stated, congressional legislation, not constitutional mandate.

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