WHY 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 Columbia.

             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 public officers.

             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 unconstitutional. 

            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 unconstitutional.

             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 was unconstitutional.