MARBURY V. MADISON DOES NOT
PREVENT CONGRESS FROM USING
THE CONSTITUTION TO PRE-EMPT
THE SUPREME COURT
Marbury was awarded a
commission as a justice of
the peace for the county of
Washington, District of
Madison, the Secretary of State, refused to deliver the commission to
Marbury so Marbury filed a suit seeking a writ of mandamus to compel
Madison to deliver the commission to Marbury.
Marbury based his request in seeking a writ of mandamus on an act of
Congress authorizing the federal courts to issue writs of mandamus to
Chief Justice Marshall made reference to Article III, 2.2 of the U.S.
Constitution which makes clear that this provision of the U.S.
Constitution gives the U.S. Supreme Court appellate jurisdiction, with
such exceptions and under such regulations as the Congress shall make.
Chief Justice Marshall recognized that the issuance of a writ of
mandamus is a remedy of original jurisdiction, not appellate
jurisdiction, and therefore concluded that when Congress passed the law
which authorized the courts of the United States to issue writs of
mandamus – a remedy of original jurisdiction, it was
Stated another way, the U.S. Constitution gave appellate jurisdiction
to the courts of the United States, hence the act of Congress to give
the U.S. courts authority to issue writs of mandamus – a remedy
of original jurisdiction – was unconstitutional.
This 1803 decision of the U.S. Supreme Court is recognized among most
legal scholars as the seminal decision whereby the U.S. Supreme court
declared it has the authority to declare acts of Congress
S520 and HR1070, The Constitutional Restoration Act of 2005 utilizes
express provisions of the Article III, 2.2 whereby Congress has the
authority to take away
jurisdiction from the U.S.
Supreme in contrast to
Marbury v. Madison where
the U.S. Supreme Court
concluded that the effort of
Congress to add to
the jurisdiction of the
courts of the United States
to issue writs of mandamus