Saturday, March 30, 2013

Marbury v. Madison, the US Supreme Court ruled that any law that violates the Constitution is automatically void.


From: V.K.Durham@comcast.net
To: V.K.Durham@comcast.net
Sent: 3/29/2013 7:11:43 P.M. Eastern Daylight Time
Subj: Marbury v. Madison, the US Supreme Court ruled that any law that violates the Constitution is automatically void.


MARBURY v. MADISON, 5 U.S. 137 (1803) 5 U.S. 137 (Cranch)
http://www.rumormillnews.com/cgi-bin/forum.cgi?read=272883

We live under a government that passes unconstitutional laws, then drags its feet when hauled before the Supreme Court to test that law's Constitutionality. But under Marbury v. Madison, the US Supreme Court ruled that any law that violates the Constitution is automatically void. And under John Bad Elk vs United States, any citizen has a right to resist with lethal force any violation of their civil rights by the application of unconstitutional laws.

Joe Biden's claim to a government right to determine what guns We The People may be allowed to own violates both the Second and Tenth Amendments, and under Marbury v. Madison, any laws passed to limit our Second Amendment rights are automatically null and void.

Mr. 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 [p154] 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.

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.

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

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

3. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of inquiry is:

1. 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 eleventh 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. [p155]

It appears from the affidavits that, in compliance with this law, a commission for William Marbury as a justice of 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.

In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.

The second section of the second article of the Constitution declares, "The President shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for."

The third section declares, that "He shall commission all the officers of the United States."

An act of Congress directs the Secretary of State to keep the seal of the United States, to make out and record, and affix the said seal to all civil commissions to officers of the United States to be appointed by the President, by and with the consent of the Senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States.

These are the clauses of the Constitution and laws of the United States which affect this part of the case. They seem to contemplate three distinct operations:

1. The nomination. This is the sole act of the President, and is completely voluntary.

2. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate. [p156]

3. The commission. To grant a commission to a person appointed might perhaps be deemed a duty enjoined by the Constitution. "He shall," says that instrument, "commission all the officers of the United States."

The acts of appointing to office and commissioning the person appointed can scarcely be considered as one and the same, since the power to perform them is given in two separate and distinct sections of the Constitution. The distinction between the appointment and the commission will be rendered more apparent by adverting to that provision in the second section of the second article of the Constitution which authorises Congress to vest by law the appointment of such inferior officers as they think proper in the President alone, in the Courts of law, or in the heads of departments; thus contemplating cases where the law may direct the President to commission an officer appointed by the Courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which perhaps could not legally be refused.

Although that clause of the Constitution which requires the President to commission all the officers of the United States may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed remains the same, as if in practice the President had commissioned officers appointed by an authority other than his own.

It follows, too, from the existence of this distinction that, if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer, and if he was not removable at the will of the President, would either give him a right to his commission or enable him to perform the duties without it.

These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. [p157]

This is an appointment made by the President, by and with the advice and consent of the Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable, it being almost impossible to show an appointment otherwise, than by proving the existence of a commission; still, the commission is not necessarily the appointment; though conclusive evidence of it.

But at what stage does it amount to this conclusive evidence?

The answer to this question seems an obvious one. The appointment, being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him.

Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself, still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete.

The last act to be done by the President is the signature of the commission. He has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the Senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act, and, being the last act required from the person making it, necessaont-family: Arial, sans-serif; font-size: 10pt;">The signature is a warrant for affixing the great seal to the commission, and the great seal is only to be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the e 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 this 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. This idea seems to have prevailed with the Legislature when the act passed, converting the Department [p158] of Foreign Affairs into the Department of State. By that act, it is enacted that the Secretary of State shall keep the seal of the United States, and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the President: . . . provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States, nor to any other instrument or act without the special warrant of the President therefor.

The signature is a warrant for affixing the great seal to the commission, and the great seal is only to be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the Presidential signature.

It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made.

The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it.

This is not a proceeding which may be varied, if the judgment of the Executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. 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, as has been very properly stated at the bar, 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.

If it should be supposed that the solemnity of affixing the seal is necessary, not only to the validity of the commission, but even to the completion of an appointment, still, when the seal is affixed, the appointment is made, and [p159]="MsoNormal"> This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment -- a supposition by no means unquestionable. But, for the purpose of examining this objection fairly, let it be conceded that the principle claimed for its support is established.

The appointment being, under the Constitution, to be made by the President personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the President, also. It is not necessary that the livery should be made personally to the grantee of the office; it never is so made. The law would seem to contemplate that it should be made to the Secretaryears possible to give them, they do not shake the opinion which has been formed.

In considering this question, it has been conjectured that the commission may have been assimilated to a deed to the validity of which delivery is essential.

This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment -- a supposition by no means unquestionable. But, for the purpose of examining this objection fairly, let it be conceded that the principle claimed for its support is established.

The appointment being, under the Constitution, to be made by the President personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the President, also. It is not necessary that the livery should be made personally to the grantee of the office; it never is so made. The law would seem to contemplate that it should be made to the Secretary of State, since it directs the secretary to affix the seal to the commission after it shall have been signed by the President. If then the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the Secretary for the purpose of being sealed, recorded, and transmitted to the party.

But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences [p160] of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign manual of the President and the seal of the United States are those solemnities. This objection, therefore, does not touch the case.

It has also occurred as possible, and barely possible, that the transmission of the commission and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff.

The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment, which must precede it and which is the mere act of the President. If the Executive required that every person appointed to an office should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the President; the transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed, not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post office and reach him in safety, or to miscarry.
It may have some tendency to elucidate this point to inquire whether the possession of the original commission be indispensably necessary to authorize a person appointed to any office to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft might deprive an individual of his office. In such a case, I presume it could not be doubted but that, a copy from the record of the Office of the Secretary of State would be, to every intent and purpose, equal to the original. The act of Congress has expressly made it so. To give that copy validity, it would not be necessary to prove that the original had been transmitted and afterwards, lost. The copy would be complete evidence that the original had existed, and that the appointment had been made, but not that the original had been transmitted. If, indeed, it should appear that [p161] the original had been mislaid in the Office of State, that circumstance would not affect the operation of the copy. When all the requisites have been performed, which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is in law considered as recorded, although the manual labour of inserting it in a book kept for that purpose, may not have been performed.
In the case of commissions, 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 in the book or not, they are in law recorded.
A copy of this record is declared equal to the original, and the fees to be paid by a person requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom, a commission which has been recorded? Or can he refuse a copy thereof, to a person demanding it on the terms prescribed by law?
Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment.
If the transmission of a commission be not considered as necessary to give validity to an appointment, still less is its acceptance. The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept; but neither the one, nor the other, is capable of rendering the appointment a nonentity.
That this is the understanding of the government is apparent from the whole tenor of its conduct.
A commission bears date, and the salary of the officer commences from his appointment, not from the transmission or acceptance of his commission. When a person appointed to any office refuses to accept that office, the successor is nominated in the place of the person who [p162] has declined to accept, and not in the place of the person who had been previously in office and had created the original vacancy.
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 [it] 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 the 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:
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? [p163]
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.
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law.
"In all other cases", he says, "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."
more: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZO.html

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