Chief Justice John Marshall (r.) and Associate Justice Joseph Story discussing the 1803 Marbury v. Madison opinion in front of the U.S. Capitol. It should be noted that Justice Story did not join the Court until 1811, eight years after this historic decision was handed down. From the bronze doors of the Supreme Court building, Washington, DC.
Credit: Image courtesy of The Supreme Court of the United States.
A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
—Alexander Hamilton, Federalist No. 78
"It is emphatically the province and duty of the judicial department to say what the law is."
—Chief Justice John Marshall, in Marbury v. Madison, 1803
Who was the most influential American of the founding era of the United States: George Washington, due to his military and political achievements? Thomas Jefferson, for the Declaration of Independence and the acquisition of the Louisiana Purchase? James Madison, for his "writing" of the Constitution and subsequent service in the House of Representatives, as Secretary of State, and President? Or might it be John Marshall, who served as Chief Justice of the U.S. Supreme Court for 34 years, longer than any other Chief Justice, and whose ground-breaking decisions still affect the lives of every American?
It is safe to say that as Madison was the "father" of the Constitution and Washington the "father of the powers of the Presidency," Marshall was the "father of the Supreme Court," almost single-handedly clarifying its powers.
What if the Supreme Court did not have the power to review laws or executive decisions, to overturn those that are "unconstitutional" - how different might life be in the United States? Until 1803, it was not a foregone conclusion that the Supreme Court of the United States would have that power, despite the fact that judicial review had its origins in early seventeen-century England and had been asserted by James Otis in the period leading up to the American Revolution. A relatively minor lawsuit led to one of the most important Supreme Court decisions in American history, Marbury v. Madison, laying the foundation for the Court's ability to render its decisions about laws and actions. In Marbury v. Madison, the Supreme Court claimed the power to review acts of Congress and the president and deem them unconstitutional, creating a precedent for an American process of judicial review. Through the decision of Chief Justice John Marshall, then, the court assumed the powers with which it has since played such a vital role in American life.
This lesson is designed to help students understand Marshall's strategy in issuing his decision, the significance of the concept of judicial review, and the language of this watershed case.
After completing this lesson, students will be able to explain
For background information on the powers of the federal judiciary, teachers should examine the EDSITEment website The Supreme Court: The Judicial Power of the United States, a series of lessons and background information about how the judiciary system was created and functions.
Marbury v. Madison is one of the most important cases in U.S. legal history. As such it is sometimes presented as a straightforward assertion of the power of the judiciary. In fact, it is a complex and complicated case, fully enmeshed in the politics of the time, demonstrating the political nature of Supreme Court decisions—then and now.
To teach this lesson, it is necessary for teachers to have background knowledge about the origins and facts of the case, which include passage of the Federal Judiciary Acts of 1789 and 1801, as well as the political struggle between the Federalists and the Democratic-Republicans in the 1790s. The article "The Trial of a Young Nation" by Charles Hobson, online courtesy of EDSITEment's creator the National Endowment for the Humanities, explains the political and historical context in which the case took place.
The key players in this case are:
In brief, the case arose in the context of the political infighting between the outgoing Adams and incoming Jefferson administrations, particularly in the Federal judiciary. At the conclusion of Adams' administration, he appointed Federalists to many federal judicial positions in order to perpetuate his party's influence in the government. As soon as Jefferson's new administration took office, it repealed a law that had created many of these new judgeships, including that of Marbury, who subsequently sued Secretary of State Madison to deliver the commission that would allow him to assume his job. Marshall faced a dilemma. If the Court asserted its power and ruled that Madison had to give Marbury his commission, Jefferson was likely to instruct Madison to ignore the ruling, thereby showing the weakness of the court.
Marshall's decision offered something to everyone: it said that Marbury had a right to his appointment as the justice of the peace; chastised Jefferson (mildly, it is true) for not having given it to him; explained that Marbury had a right to try to reclaim what was offered to him; and then concluded with an explanation of why the Supreme Court could not provide a remedy. The Judiciary Act of 1789, which had granted the Supreme Court the power to issue orders to members of the government, was unconstitutional because it expanded the Court's role beyond what was permitted by the Constitution. As a result, the Court could not act on Marbury's behalf.
This case is significant because for the first time, the Supreme Court declared an act of Congress unconstitutional because it was contrary to the Constitution. This decision was the foundation for the Supreme Court's power of "judicial review," the power by which the Court could determine the constitutionality of laws passed by Congress.
For a good overview of judicial review and the evolution of the role and powers of the Supreme Court, read The Supreme Court in the American System of Government, linked to the Center for History and New Media, an EDSITEment-reviewed website.
Finally, the term mandamus comes up in all articles about the case; it means: "The writ issued by a court of superior jurisdiction to an inferior tribunal, to a corporation, or to any person commanding the performance of some clear public duty imposed by law." (Webster's Third New International Dictionary)
This case is all about the power of the Supreme Court as outlined in the Constitution in relationship to the other two branches. So what does the Constitution say is the job of the Supreme Court? Students will read Article III, Section 2 of the Constitution and then, using the PDF, students will "explain" what they believe to be the job of the Supreme Court as defined in the Constitution. Leave time for discussion to ensure these questions are answered:
Students should read this short background piece about Marbury v. Madison to get an overview of the details and complexities of the case. The teacher should pose these questions to students to ensure understanding of the background reading:
What did John Marshall write about the power of the Supreme Court in the actual decision? In groups, with partners, or alone, students will do a close textual analysis of excerpts of the decision to understand Marshall's argument. They may use class time or analyze these excerpts as homework; a final discussion in-class will check students' understanding and sum up.
Part 1: What is the relationship of the Constitution to ordinary laws? Students will read these paragraphs, and using the worksheet, explain Marshall's point of view on this question. Teachers may want to explore the differences between a Constitution and statutory law, at this time, if it is something with which their students are not familiar.
Excerpted from Marbury v. Madison:
The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.
The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration."
Part II: What is the job of the Supreme Court in cases where a law passed by Congress contradicts/violates part of the Constitution? Using the PDF, students will rewrite each paragraph of this section, and then summarize what Marshall is saying.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions — a written constitution — would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.
The judicial power of the United States is extended to all cases arising under the constitution.
Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained….
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
Part III: Once students have analyzed the excerpts, the teacher should lead a discussion to ensure that ALL students have grasped the scope and significance of Marshall's decision.
Teachers may want to consider these questions, among others:
Did Marshall's ideas about judicial review have support from other Founders? Students will read a short portion of Alexander Hamilton's views in Federalist #78, to see what he thought of Judicial Review. As another option, teachers may want their students to read Federalist #78 in its entirety, which can be found at this site.
At the time the decision in Marbury v. Madison was made and since then, opponents have challenged the Supreme Court's power to interpret the Constitution. In 1823, Marshall answered one of his critics, Senator Richard M. Johnson, who thought it should take more than a simple majority of the Supreme Court to declare a law unconstitutional.
What if … John Marshall had not made this decision? A conference of historians is meeting to look at the issue, and you are one of them. You've been asked to present a paper at the conference. You must:
During the contest of opinion through which we have passed, the animation of discussion and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the constitution, all will, of course, arrange themselves under the will of the law, and unite in common efforts for the common good. All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression. Let us, then, fellow citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things. And let us reflect that having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions. During the throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long-lost liberty, it was not wonderful that the agitation of the billows should reach even this distant and peaceful shore; that this should be more felt and feared by some and less by others; that this should divide opinions as to measures of safety. But every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all republicans-we are all federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."
Ask students to answer the following questions in note form or as an essay, in class or for homework. You may wish to follow-up with a class discussion.
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