This principle of passing on the
constitutionality of a legislative act by the courts had been
established in at least five States before the adoption of the
Constitution. It had been exercised in several cases by the Federal
courts before the case of Marbury _vs._ Madison arose. A new contention
was involved by asking whether the request made to the Supreme Court
to issue a mandamus would hold against the provisions of the
Constitution, which did not include mandamus in the powers specifically
given to the court.
It chanced that the case came before John Marshall, who had recently
assumed the station of Chief Justice, to which John Adams appointed
him in the closing months of his administration. The previous history
of the court, with the exception of two or three cases, had been
insignificant. Its decisions during the first ten years do not fill
as many pages as do those for a single year at the present time. Jay
had resigned its headship to undertake the mission to England, impressed
with the belief, as he afterward said, that the court could never
obtain the energy, weight, and dignity essential to affording due
support to the National Government.
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