One of the men who did not get his commission for justice of the peace was William Marbury.4.

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             William Marbury then sought a writ of Mandamus from the Supreme Court, to get Madison to deliver the commissions he was withholding. Marbury had taken the action directly to the Supreme Court through section 13 of the Judiciary Act of 1789, which gave the court the right to hear mandamus cases against federal officials without the case being tried in a lower court.5 .

             Ten days after the case was heard, the Court through Marshall announced its decision. The main part of Marshall"s decision was made up of answering three basic questions. The first question asked if Marbury had a right to get his commission as a justice of the peace. The second question was could Marbury get a writ of mandamus to make Madison deliver his commission. And the last question asked was could the Court issue this order.6.

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             The answer to the first question was yes, because the president had signed the commission, and the seal of the United States had been put on it. And Marbury could get a writ of mandamus to make Madison deliver the commission, but this is not what Marshall wanted to do. If he did order Madison to deliver the commission, the Court would have no power to enforce this, but if he decided to dismiss Marbury"s action this would be "abdicating the essentials of "The Judicial Power" conferred on the court by the Constitution."7 Marshall chooses neither while answering the third question. He said that section 13 of the Judiciary Act was unconstitutional because in the Constitution the Supreme Court only had original jurisdiction on cases involving ".ambassadors, other public ministers and consuls and those in which a state shall be a party."8 This meant that the Supreme Court could not issue the writ, Marbury would have to get his commission from a trial court, because the Supreme Court should not have been able to hear the case in the first place.