John Marshall, Marbury v. Madison, and Judicial Review

Until 1803, it was not a foregone conclusion that the Supreme Court of the United States would have the power to review laws, 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.

The above video from the History Channel on Marbury v. Madison illustrates why this 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:

• Supreme Court Chief Justice John Marshall
• William Marbury, a Maryland citizen who in 1801 sought to become justice of the peace for the District of Columbia
• Secretary of State James Madison
• Presidents John Adams (outgoing Federalist in 1801) and Thomas Jefferson (incoming Democrat Republican in 1801)
• Charles Lee, Marbury's attorney

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 the Supreme Court for the first time declared an act of Congress unconstitutional. 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.

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)

NCSS.D1.1.9-12. Explain how a question reflects an enduring issue in the field.

NCSS.D2.Civ.3.9-12. Analyze the impact of constitutions, laws, treaties, and international agreements on the maintenance of national and international order.

NCSS.D2.Civ.4.9-12. Explain how the U.S. Constitution establishes a system of government that has powers, responsibilities, and limits that have changed over time and that are still contested.

NCSS.D2.Civ.8.9-12. Evaluate social and political systems in different contexts, times, and places, that promote civic virtues and enact democratic principles.

NCSS.D2.His.1.9-12. Evaluate how historical events and developments were shaped by unique circumstances of time and place as well as broader historical contexts.

NCSS.D2.His.2.9-12. Analyze change and continuity in historical eras.

NCSS.D2.His.3.9-12. Use questions generated about individuals and groups to assess how the significance of their actions changes over time and is shaped by the historical context.

• Review the lesson plan and the websites used throughout. Locate and bookmark suggested materials and websites. Bookmark or download and print out documents you will use and duplicate copies as necessary for student viewing.
• Article III of the Constitution, from the Avalon Project at Yale University, an EDSITEment-reviewed website;
• The full text of the Marbury v. Madison decision is available through the Legal Information Institute at Cornell University, linked to History Matters, an EDSITEment-reviewed website;
• A letter from Marshall in 1823 about his view of judicial review, linked to the EDSITEment-reviewed Digital History site.

Activity 1. What does Article III say?

"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

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 collect information in order to explain what they believe to be the job of the Supreme Court as defined in the Constitution. The short video below addresses the debate that occurred over judicial review at the time.

Leave time for discussion to ensure these questions are answered:

• What is the job of the Supreme Court as described in Article III?
• Is there any indication in this section that the Supreme Court has the "right" or "responsibility" to determine whether laws are constitutional—meaning whether they violate or go against what is written in the Constitution?
• Is there any reference to the term "judicial review" in the Constitution?
• Does Article III establish the limits of the Court's powers?

Activity 2. Marbury v. Madison

Students should read this 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 was William Marbury's complaint and how did it arise?
• What did Marbury hope to achieve by suing Secretary of State James Madison?
• Who "won" the case?
• What did this decision say about the role of the Supreme Court? Why is it still relevant to us today?

Activity 3. John Marshall's Opinion

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 collect information in order to provide an explanation of 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? Based on their analysis, students will collect information to inform a rewriting of the paragraphs within 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:

First excerpt:

• What has supremacy-the Constitution or ordinary laws?
• How does the Constitution limit the power of legislative bodies?
• Why is this limitation so important, in Marshall's view?
• What would happen if the Constitution and "ordinary legislative acts" were on equal footing?

Second excerpt:

• What does Marshall mean when he writes, "it is the duty of the judicial department to say what the law is"?
• Why is this so fundamentally important to this case?
• How does his reasoning in Part II support the theoretical foundation he established in Part I?

Activity 4. Alexander Hamilton on Judicial Review

Did Marshall's ideas about judicial review have support from other Founders? Students will read a collection of views on Federalist #78, to develop a position on Judicial Review. As another option, teachers may want their students to read Federalist #78 in its entirety.

Activity 5. Marshall's Later Defense of Judicial Review

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.

Historians, lawyers, and judges are meeting to discuss the history of judicial review and you have been invited to give a presentation on the topic. Your presentation can be delivered as a paper, a multimedia storyboard, in character as a member of the U.S. government in 1803, or some other form of presenting information that addresses the following:

• explain the context and importance of Marbury v. Madison;
• explain the role of the Supreme Court in interpreting the Constitution;
• explain and evaluate the concept of judicial review;
• cite one other example from history to illustrate your position on how the U.S. system of government has been affected by the establishment of judicial review.

• Students should be encouraged to pursue Marshall's remarkable track record in a number of other historically significant cases, as well as his legacy.
• What were the political dynamics of the era—and how does this case fit into that context? Students should already have some background about the fight between Federalists and Democratic-Republicans from their study of the 1790s. The following excerpt from Jefferson's speech at his 1801 inauguration confronts the issue; use the questions below to push students to explore the text further.

Excerpt from Jefferson's First Inaugural Address:

"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.

• What is Jefferson saying about the political climate of the U.S. in 1800?
• Why is he saying this—what has been going on for the past 8 years or so?
• Does he make a convincing case—would a Federalist have been convinced of his sincerity and "right" intentions? Why was Marbury upset about not receiving his commission? What was the big deal—how was he "wronged"? If you and your students want to learn more about Marbury, this essay on "Marbury's Travail" explains his background and the meaning of being a justice of the peace in the Early Republic.