Reading Tasks: Students will closely read what the text is saying and make inferences when necessary. Students will determine central ideas and analyze how they are developed



Download 107.45 Kb.
Date31.05.2016
Size107.45 Kb.
Marbury v. Madison – A Close and Critical Reading

Brian Weaver – Big Rapids High School



Reading Tasks: Students will closely read what the text is saying and make inferences when necessary. Students will determine central ideas and analyze how they are developed. Students will analyze the how and why this document was written, and how the ideas are developed in writing. Students will analyze the structure of the text, and assess the point of view of the writer. Students will evaluate the arguments and claims within the text.

Vocabulary Tasks: While meaning of the words will initially be derived with help from the teacher, the meaning within the context of the passage will be discerned by students as they read the various components of the declaration.

Discussion Tasks: Students will evaluate the arguments and claims within the text. Students will analyze how and why the document was written, and how the ideas are developed in writing.

Writing Tasks: Students will write an argument with claims supported by using valid reasoning and evidence from the text. Students will produce clear writing which is developed with an essential question in mind. Students will gather evidence from their reading to write in response to the anchor questions. Students will clarify their writings over the course of the lesson. Students will draw evidence from the primary source in all their writings within the unit.

Essential Question(s):

What is the role of the Supreme Court regarding laws passed by Congress and state legislatures, and how did John Marshall's decision in the case of Marbury v. Madison help to underscore the Court's pre-eminence?

Why was the establishment of the notion of judicial review so important for the future history of the Supreme Court and the United States?
Text Selection (Background):

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.


Target Span: High School Civics Students
Reading Standards hit: R1, R2, R3, R4, R5, R6, R8
Writing Standards hit: W1, W4, W5, W8, W9

Directions/Introduction

As written, this lesson will guide students through multiple days of looking at a historical document. It is meant to be a teachable model, but is freely available to be changed based on your students own unique needs.

What should be understood however, is that with the Common Core State Standards covering literacy in Social Studies, we need to give our students rich, complex texts in order to deepen their understanding of our important content, as well as give them opportunities to practice literacy across the content areas. If this is their first time, it may be rough, but students will get better at it the more practice they have.

We chose to follow the advice of Mike Schmoker, who, in his book Focus: Elevating the Essentials to Radically Improve Student Learning, recommends that any vocabulary which could hinder a student’s understanding be taught in advance (Schmoker, 2011). The Core standards call for students to be able to identify the meaning of words by the context in which they are used (National Governors Association, 2011), and by pre-teaching the vocabulary here, students still have to do this important step, even though the vocabulary was taught in advance.

In trying to provide a research based model, for vocabulary we’re following Marzano. Marzano identifies six steps to teaching vocabulary. We will be combining two steps (provide and restate) and eliminating step 6 which is practicing with games (Marzano & Pickering, 2005). You may adapt the lesson to include this step if you choose.



The recommended model for teaching each day is as follows:

Day 1: Provide Student Handout to students. Their document is complete and should be referred to every day of the lesson. You would then do vocabulary instruction as a group (just the words for the day from the teacher handout) and then follow the teacher directions within the document itself.

Day 2: Begin with vocabulary instructions, then follow the directions in the teacher Stage 2 handouts.

Day 3: Begin with vocabulary instruction, then follow the directions in the teacher Stage 3 handouts.

How you choose to assess this beyond what is provided here is up to you, but a discussion and activity based around the focus question is included in Day 3.

Section/Stage 1 Teacher Page



Text Under Discussion

Vocabulary

Directions for Teachers

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



U.S. Constitution : Article III

Section 2 - Judicial power; to what cases it extends. Original jurisdiction of Supreme Court Appellate. Trial by Jury, etc. Trial, where

1. The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and Citizens of another state, between Citizens of different states, between Citizens of the same state, claiming lands under grants of different states, and between a state, or the Citizens thereof, and foreign states, Citizens or subjects.

2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before-mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

3. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Marbury v. Madison (1803)
Background and Explanation


-- Melvin I. Urofsky

Just as George Washington helped shape the actual form that the executive branch would take, so the third chief justice, John Marshall, shaped the role that the courts would play.

Under the administrations of Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the bench, and under the terms of the Constitution, they held office for life during "good behavior."  Thus, when the opposing Republicans won the election of 1800, they (the Republicans) found that while they controlled the presidency and Congress, the Federalists still dominated the judiciary. One of the first acts of the new administration was to repeal the Judiciary Act of 1800, which had created a number of new judgeships. Although President Adams had attempted to fill the vacancies prior to the end of his term, a number of commissions had not been delivered, and one of the appointees, William Marbury, sued Secretary of State James Madison to force him to deliver his commission as a justice of the peace.

The new chief justice, John Marshall, understood that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law.

Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Republicans and yet not create a situation in which a court order would be flouted.

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. But through its role as arbiter of the Constitution, it has, especially in the twentieth century, been the chief agency for the expansion of individual rights.


constitution

ascertain

irreconcilable

equity


treaties

original jurisdiction

appellate jurisdiction

impeachment

jury

chief justice



Federalist Party

Republicans

vacancies

Secretary of State

null and void

flouted


unconstitutional

arbiter


sparingly


Start with a Vocabulary Game: Matching game to learn vocabulary: Randomly pass out slips of paper with one vocabulary word per slip to half the class and then pass out definitions to match those words to the other half of the class. Allow students to move about the room matching words and definitions, sitting down once they have a match. Repeat this process until most of the definitions are understood. If there are an

Activity One: What Does Article III Say?

Introduce the topic by sharing the quotes to the left with students.

Ask Students: What does Hamiliton mean by “fundamental law?” What do you think this activity is going to be about?

Have students read the excerpt from the Constitution in small groups or out loud as a class. Lead a discussion of the questions below.

Discussion:

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 Two – Part A: Marbury v Madison

Have students read the background and explanation together in small groups. Then lead a discussion using the questions below.

Discussion:

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?

Performance Activity: Entrance Ticket

What is the primary importance of the Marbury v. Madison decision of the Supreme Court?




Stage 1 – Additional Information/Instructions/Performance Task

Section/Stage 2 Teacher Page



Text Under Discussion

Vocabulary

Directions for Teachers

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."



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.




warranted

conferred

repugnant

deemed


fundamental

transcended

restrained

abolish


obligation

ordinary act

contrary

paramount

oblige

gross


emphatically

expound


controvert

obligatory

effectual

omnipotence

sufficient

extravagant




Activity Two – Part B:

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. 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.

Part II: What is the job of the Supreme Court in cases where a law passed by Congress contradicts/violates part of the Constitution? Students will read these paragraphs, and using the worksheet, students will rewrite each paragraph of this section, and then summarize what Marshall is saying.

Performance Activity: Exit Ticket

What is the job of the Supreme Court in cases where a law passed by Congress contradicts/violates part of the Constitution? 


Stage 2 – Additional Information/Instructions/Performance Tasks

Section/Stage 3 Teacher Page



Text Under Discussion

Vocabulary

Directions for Teachers

Background/Review: 

When John Marshall (1755-1835) became the nation's fourth Chief Justice in 1801, the court lacked prestige and public respect. Presidents found it difficult to get people to serve as justices. The court was considered so insignificant that it held its sessions in a clerk's office in the basement of the Capitol. During the 34 years he served as Chief Justice, he transformed the Supreme Court into a vigorous third branch of government.

Marshall was born in the foothills of the Virginia's Blue Ridge Mountains in 1755, far from the wealthy tobacco and slave Tidewater region of the state. During the Revolution, he led a company of riflemen and spent the terrible winter of 1777 at Valley Forge. Out of his Revolutionary war experiences he became a staunch nationalist who distrusted state governments, which, he believed, had failed to support the soldiers.

Marshall delivered his first landmark opinion two years after joining the court. John Adams had appointed a loyal Federalist, William Marbury (1761?-1835), to a judgeship at the very end of his term. Although approved by the Senate, Marbury never received his letter of appointment. When Jefferson became president, Marbury demanded that the new Secretary of State, James Madison, issue the commission. Madison refused and Marbury sued, claiming that under section 13 of the Judiciary Act of 1789, the justices could issue a court order compelling Madison to give him his judgeship.

The case threatened to provoke a direct confrontation between the judiciary and the Republicans. If the Supreme Court ordered Madison to give Marbury the judgeship, the secretary of state was likely to ignore the court and Congress might limit the high court's power.

In his opinion in Marbury v. Madison, Marshall ingeniously expanded the court's power without directly provoking the Jeffersonians. He conceded Marbury's right to his appointment, but ruled that the court had no authority to order the Secretary of State to act, since the section of the Judiciary Act that gave the court the power to issue an order was unconstitutional. A landmark in American constitutional history, the decision asserted the power of federal courts to review the constitutionality of federal laws and to invalidate acts of Congress when they are found to conflict with the Constitution. This power, known as judicial review, provides the basis for the important place that the Supreme Court occupies in American life today.

In fact, the Supreme Court did not invalidate another act of Congress for half a century. But the assertion of this power proved enormously controversial. In 1823, Senator Richard M. Johnson (1781-1850) proposed that more than a simple majority of judges must agree in order to declare a law unconstitutional. Here, Justice Marshall responds.

Marshall’s Response to Senator Johnson

That gentleman [Senator Richard M. Johnson], I perceive has moved a resolution requiring a concurrence of more than a majority of all the Judges of the supreme court to decide that a law is repugnant to the constitution....

If Congress should say explicitly that the courts of the Union should never enter into the enquiry concerning the constitutionality of a law, or should dismiss for want of jurisdiction, every case depending on a law deemed by the Court to be unconstitutional, could there be two opinions disputing such an act?....

When we consider the remoteness, the numbers, and the ages of the Judges, we cannot expect that the assemblage of all of them [a unanimous decision]...will be of frequent recurrence. The difficulty of the questions, and other considerations, may often divide those who do attend. To require almost unanimity is to require what cannot often happen, and consequently to disable the court from deciding constitutional questions.

A majority of the court is according to the...common understanding of mankind, as much the court, as the majority of the legislature, is the legislature; and it seems to me that a law requiring more than a majority to make a decision as much counteracts the views of the constitution as an act requiring more than a majority of the legislature to pass a law.

Resources:

EdSitement - http://edsitement.neh.gov/lesson-plan/john-marshall-marbury-v-madison-and-judical-reviewmdashhow-court-became-supreme#sect-activities

Digital History - http://www.digitalhistory.uh.edu/documents/documents_p2.cfm?doc=350

Pat McLarty – Kathleen Senior High School - http://www.polk-fl.net/staff/teachers/tah/documents/turningpoints/lessons/b-marburyvmad-mclarty.pdf


prestige

landmark opinion

nationalist

provoke



Activity Three: 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.

Start the day by reviewing the previous two days.

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?

Have students read the background/Review and the excerpt from Marshall’s response to Senator Johnson in small groups or individually.

After reading Marshall’s letter

http://www.digitalhistory.uh.edu/documents/documents_p2.cfm?doc=350

use the annotation tool

http://chnm.gmu.edu/edsitement/login/ to rewrite his key argument, explaining his viewpoint about the issue of judicial review by the Court.

Listen to a “conversation” between John Marshall and Thomas Jefferson at the conclusion of the court case. This conversation can be found at http://www.imao.us/sound/Marbury.mp3

Discuss as a class.

Connection to today

http://www.colbertnation.com/the-colbert-report-videos/219668/february-24-2009/cliff-sloan



Concluding Activity: Review how this case is still affecting the court system. Discuss Brown v. Board of Education and

Bush v. Gore and their relationship to this decision.

Stage 3 – Additional Information/Instructions/Performance Tasks

Student Page



Text Under Discussion

Vocabulary

My Thoughts/Notes

Stage 1

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

U.S. Constitution : Article III

Section 2 - Judicial power; to what cases it extends. Original jurisdiction of Supreme Court Appellate. Trial by Jury, etc. Trial, where

1. The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and Citizens of another state, between Citizens of different states, between Citizens of the same state, claiming lands under grants of different states, and between a state, or the Citizens thereof, and foreign states, Citizens or subjects.

2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before-mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

3. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.


Marbury v. Madison (1803)
Background and Explanation


-- Melvin I. Urofsky

Just as George Washington helped shape the actual form that the executive branch would take, so the third chief justice, John Marshall, shaped the role that the courts would play.

Under the administrations of Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the bench, and under the terms of the Constitution, they held office for life during "good behavior."  Thus, when the opposing Republicans won the election of 1800, they (the Republicans) found that while they controlled the presidency and Congress, the Federalists still dominated the judiciary. One of the first acts of the new administration was to repeal the Judiciary Act of 1800, which had created a number of new judgeships. Although President Adams had attempted to fill the vacancies prior to the end of his term, a number of commissions had not been delivered, and one of the appointees, William Marbury, sued Secretary of State James Madison to force him to deliver his commission as a justice of the peace.

The new chief justice, John Marshall, understood that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law.

Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Republicans and yet not create a situation in which a court order would be flouted.

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. But through its role as arbiter of the Constitution, it has, especially in the twentieth century, been the chief agency for the expansion of individual rights.

Stage 2

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."



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.



Stage Three

Background/Review: 

When John Marshall (1755-1835) became the nation's fourth Chief Justice in 1801, the court lacked prestige and public respect. Presidents found it difficult to get people to serve as justices. The court was considered so insignificant that it held its sessions in a clerk's office in the basement of the Capitol. During the 34 years he served as Chief Justice, he transformed the Supreme Court into a vigorous third branch of government.

Marshall was born in the foothills of the Virginia's Blue Ridge Mountains in 1755, far from the wealthy tobacco and slave Tidewater region of the state. During the Revolution, he led a company of riflemen and spent the terrible winter of 1777 at Valley Forge. Out of his Revolutionary war experiences he became a staunch nationalist who distrusted state governments, which, he believed, had failed to support the soldiers.

Marshall delivered his first landmark opinion two years after joining the court. John Adams had appointed a loyal Federalist, William Marbury (1761?-1835), to a judgeship at the very end of his term. Although approved by the Senate, Marbury never received his letter of appointment. When Jefferson became president, Marbury demanded that the new Secretary of State, James Madison, issue the commission. Madison refused and Marbury sued, claiming that under section 13 of the Judiciary Act of 1789, the justices could issue a court order compelling Madison to give him his judgeship.

The case threatened to provoke a direct confrontation between the judiciary and the Republicans. If the Supreme Court ordered Madison to give Marbury the judgeship, the secretary of state was likely to ignore the court and Congress might limit the high court's power.

In his opinion in Marbury v. Madison, Marshall ingeniously expanded the court's power without directly provoking the Jeffersonians. He conceded Marbury's right to his appointment, but ruled that the court had no authority to order the Secretary of State to act, since the section of the Judiciary Act that gave the court the power to issue an order was unconstitutional. A landmark in American constitutional history, the decision asserted the power of federal courts to review the constitutionality of federal laws and to invalidate acts of Congress when they are found to conflict with the Constitution. This power, known as judicial review, provides the basis for the important place that the Supreme Court occupies in American life today.

In fact, the Supreme Court did not invalidate another act of Congress for half a century. But the assertion of this power proved enormously controversial. In 1823, Senator Richard M. Johnson (1781-1850) proposed that more than a simple majority of judges must agree in order to declare a law unconstitutional. Here, Justice Marshall responds.

Marshall’s Response to Senator Johnson

That gentleman [Senator Richard M. Johnson], I perceive has moved a resolution requiring a concurrence of more than a majority of all the Judges of the supreme court to decide that a law is repugnant to the constitution....

If Congress should say explicitly that the courts of the Union should never enter into the enquiry concerning the constitutionality of a law, or should dismiss for want of jurisdiction, every case depending on a law deemed by the Court to be unconstitutional, could there be two opinions disputing such an act?....

When we consider the remoteness, the numbers, and the ages of the Judges, we cannot expect that the assemblage of all of them [a unanimous decision]...will be of frequent recurrence. The difficulty of the questions, and other considerations, may often divide those who do attend. To require almost unanimity is to require what cannot often happen, and consequently to disable the court from deciding constitutional questions.

A majority of the court is according to the...common understanding of mankind, as much the court, as the majority of the legislature, is the legislature; and it seems to me that a law requiring more than a majority to make a decision as much counteracts the views of the constitution as an act requiring more than a majority of the legislature to pass a law.


constitution

ascertain

irreconcilable

equity


treaties

original jurisdiction

appellate jurisdiction

impeachment

jury

chief justice



Federalist Party

Republicans

vacancies

Secretary of State

null and void

flouted


unconstitutional

arbiter


sparingly

warranted

conferred

repugnant

deemed

fundamental



transcended

restrained

abolish

obligation



ordinary act

contrary


paramount

oblige


gross

emphatically

expound

controvert



obligatory

effectual

omnipotence

sufficient

extravagant

prestige


landmark opinion

nationalist



provoke







Share with your friends:




The database is protected by copyright ©essaydocs.org 2020
send message

    Main page