Teacher Resources: Lesson Plan

Signed, Sealed and Delivered: Marbury v. Madison and an Independent Judiciary

Overview

When Chief Justice John Marshall wrote in his decision for Marbury v. Madison, "It is emphatically the province and duty of the judicial department to say what the law is," he took the extremely short and sketchy third article of the U.S. Constitution which created the judiciary branch and transformed it from paper to power. In this lesson, students will examine the interconnection between the signed, sealed but undelivered warrant for William Marbury's appointment as a justice of the peace, the Judiciary Act of 1789, and the decision of the Supreme Court in Marbury v. Madison which established the independence of the judiciary branch. Students will examine extracted original documents and Senate debate, complete a worksheet to learn how Marshall structured the argument of his decision and write a culminating paper. This lesson is designed for high school students in either U.S. History or Government/Civics, grades 9-12.

National Curriculum Standards met by this lesson

For a list of standards that this unit addresses, click here.

Ties to your Curriculum

This lesson ties into United States History when studying:

This lesson ties into United States Government/Civics when studying:

Time required

The lesson will take one class period if reading and written work is done outside of class.

Materials

Or the facsimile read at the Library of Congress website's A Century of Lawmaking for a New Nation, U.S. Congressional Documents and Debates 1774-1875 at http://lcweb2.loc.gov/cgi-bin/ampage?collId=llac2&fileName=012/llac012.db&recNum=14)

The Lesson

Anticipatory Set

  1. Ask students to examine the L'Enfant Plan for Washington and determine:
    • Where is the legislative branch to be housed?
    • Where is the executive branch to be housed?
    • Where is the judicial branch to be housed?
  2. Ask students what might account for the lack of a "Court's house" on L'Enfant's plan. Explain that the unmarked square two blocks to the right of the area labeled D on L'Enfant's is Judiciary Square. (You may choose for students to look at a current map of modern Washington, DC to deduce the information.) In 1820 the Old District of Columbia Courthouse was built on the square, but the Supreme Court did not get a building of its own until 1935.

Procedures

  1. Ask students if they have ever heard the expression "signed, sealed, and delivered" and discuss what it means both in common usage and legally. Then, have them read the segment in their textbook about the case of Marbury v. Madison or a summary of the case such as that at the website Oyez, http://www.oyez.org/oyez/resource/case/224/ or the Wikipedia article at http://en.wikipedia.org/wiki/Marbury_v._Madison. Marbury's commission as justice of the peace had been signed and sealed on March 3, 1801, but was not delivered to him by Secretary of State John Marshall before the end of lame-duck President John Adams' term of office. Marshall had also been appointed Chief Justice of the United States Supreme Court on February 4 by President Adams and in that capacity administered the oath of office on March 4 to Thomas Jefferson. Newly inaugurated President Thomas Jefferson ordered the new Secretary of State, James Madison, not to deliver the commission. Failure to do so would effectively void Marbury's commision along with those of 24 other "midnight judges" appointed by former president John Adams. Discuss with the class whether they think Marshall's and Jefferson's actions were a) fair and b) legal.
  2. The Judiciary Act of 1789, section 13, authorized the U.S. Supreme Court to issue writs of mandamus; in this case the writ of mandamus would have ordered James Madison to deliver the commission so Marbury could become a justice of the peace for the District of Columbia. Under the provisions of the Judiciary Act of 1789, Marbury filed a petition for a writ of mandamus directly with the Supreme Court, and the case entered the docket as Marbury v. Madison. Ask students to read the following extracts and decide:
    • Does the U.S. Constitution explicitly authorize the Supreme Court to issue a writ of mandamus?
    • Are the areas of original jurisdiction listed in Article III of the U.S. Constitution a complete list which cannot be changed, or does Congress have the power to add to the list?
    • If the list cannot be changed, which has the final say, Congress or the U.S. Constitution?
    • If there is a conflict between Congress and the U.S. Constitution, who decides which one has the final say?

    (Students may look at the original Judiciary Act at the links mentioned in the Materials section.)

    United States Constitution, Article III, Section 2

    Section 2. 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.

    In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be 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.

    Judiciary Act of 1789

    SEC. 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

    1. Marbury's lawyer recommended that he petition the U.S. Senate for proof that it had voted to approve his appointment. The appointment was made in a secret session and recorded in the Executive Journal. Marbury requested the Senate for access to this secret journal as evidence for his case. (The request was refused in a party line vote with Federalists voting to support the petition and Democratic-Republicans voting against the petition. The outcome of the Senate vote had no bearing on Marshall's decision but sets the case into the context of partisan politics.) Ask students to read up to ten extracts from the Senate debate over whether Marbury might have access to the Executive Journal; students should summarize the main argument(s) offered by each senator. The teacher may choose to conduct this as a mock session of the Senate and assign the roles of the senators (Mason, Breckenridge, Morris, Baldwin, Clinton, Ross, Jackson, Tracy, Hillouse, and Wright) to students so they may read aloud the historical arguments in the debate.
    2. Afterwards, ask students if the debate is a primary source. Ask students to evaluate how reliable a primary source it is, not only in terms of what was said, and the partisan sentiments, but the truth of what was said--does political point-of-view affect the reliability of the information in this document about Marbury and his appointment? What are some of the arguments about separation of powers and checks and balances in the debate? [Note: Senator Gouvernour Morris was a member of the Constitutional Convention in 1787 and is responsible for writing the Preamble to the Constitution and coining the phrase, "We, the People."]

    Mr. [Jonathan] MASON [F, Massachusetts] observed it was true, as the honorable gentleman from Georgia had stated, a motion similar to the present resolution, he had himself made at the last session, and for the same purpose...It was time now to consider the propriety of granting it, when the parties themselves applied in writing, stating the purposes for which they wanted it, and upon this and the motion was either withdrawn or rejected. In the present case they had applied in a respectful manner, in form of memorial, and had stated the reasons of their application, and the use they wished to make of the copy, to establish an existing right. They were citizens and parties to the Government and to its privileges. The principles upon which this Government was founded were freedom and equality of rights, and a protection to these rights. The petitioners now claim that protection, by a request that we would grant to them our knowledge of the existence of a fact necessary to establish one of their rights. Publicity of record was a Constitutional provision, and a check in favor of the people. It was a right belonging to the meanest citizen to inspect the records of the Government, unless the divulging of these records would be inconsistent with the public safety and interest. And when that was not the case it was our duty to grant the request--they had a right to demand it. It was upon the same ground that every citizen had a right to demand and compel the testimony of his fellow-citizens, upon peril of damages equal to the loss of his testimony; it is an implied promise, founded upon mutual protection and aid to each other in the support of their individual rights. It is one of the great reasons for which men associate. The same justice is due from public bodies, though compulsory process is not in both cases to be had.

    Mr. JOHN BRECKENRIDGE [DR, Kentucky] thought it improper to grant the prayer of the petitioners. The Executive Journal is kept only for the private use of the Senate and there is an express rule that extracts should not be given without the order of the House. He knew of no instance in which they could with propriety be claimed or given, but if there were any Such; he begged gentlemen to point them out: As to the case in question, to grant the prayer of. the petition would, he said, administer to the means of assailing the Executive Department of the Government. He considered the President as in some measure a party to the Executive Journal, end therefore an extract of it ought not to be communicated without his consent. The Senate ought to protect the dignity of that branch in which they participate. The suit is now pending on a mandamus to the Secretary of State [James Madison]. The Senate ought not to aid the Judiciary in their invasion of the rights of the Executive. There could be no use in giving such extracts, and there might be mischief.

    Mr. [Gouvernour] MORRIS [F, Pennsylvania] was much in opinion with Mr. B[reckenridge]. He thought that the rule respecting the Executive Journal was wise, and that extracts ought not to be given for trivial purposes that it might be a means of embarrassing the Government, and lessening the respect due to those who administer it. That he had no apprehension of any such on the part of the Judiciary; he was persuaded they would treat with due respect the other parts of the Government. But such attempts might be made by others, and therefore it was not prudent to furnish the means, or to establish a rule of which designing men might avail themselves for bad purposes. For these reasons he was inclined to reject the proposed resolution. On the other hand he considered the application of a suitor for evidence to support his right, as of a very serious nature. A denial of that evidence might amount to a denial of justice. He was not prepared to go so far. If in possession of a deed making a link in the chain of a suitor's title, the courts might compel him to appear, and bring with him the deed; he did not feel himself justified in using the authority with which, as a Senator, he was invested, for the purpose of refusing that which another could rightfully demand; and oblige him by law, as a private citizen, to give. That in the present case, the merits of which were unknown to him, it was possible, as has been suggested, that other evidence might be produced, and though of inferior force, be validated by the refusal of the Senate. Perhaps, too, the court might issue process, compelling the Secretary to appear and bring with him the Journal. It was equally possible that they might not think it proper to issue such process, or that the Secretary [of the Senate] might refuse to answer, alleging his duty to keep the secrets of the Senate. That if from these or any other causes, the Court should declare they could not do right because the Senate withheld the evidence, he should feel himself guilty of a denial of justice. That in effect the assent of the Senate being a pre-requisite to the appointment of an officer, it might be necessary to show that assent when his authority should be legally questioned. If the Senate refuse on the present occasion, where the evidence is said to be necessary to obtain the office, how could they grant it on another occasion where it would be necessary to preserve the office? On the whole, Mr. MORRIS declared he should reluctantly give his vote in favor of the resolution, because the greater weight of reason was in favor of it, and because he could not answer to the world, or to his own conscience, the delay or denial of justice...

    [Mr. MORRIS, later in the debate] Although I have already spoken longer than I intended, I must pray one moment's attention. That honorable gentleman thinks there should be a perfect unity in the Executive power. The division of it is inconsistent with his ideas of good government, and therefore he would admit of no inquiry as to facts which may have happened in the course of Executive volition, but give full credit to the commissions and proclamations of the President. These ideas, sir, consist well with monarchic institutions. Our Sovereign Lord, the King, is indeed possessed of the fullness of Executive power. and may exercise it at his pleasure. But as to our Sovereign Lord the President, the case is widely different. The American Constitution has given to this Senate a wholesome check upon his sovereign will: But according to the doctrine which gentlemen now advance, this check is nugatory--neither the people nor the courts shall question his commissions nor his proclamations. His commissions, it seems, confer complete authority. His proclamations are the supreme law. He may form what leagues he pleases with foreign Powers, and when he shall proclaim them, we are held to implicit obedience. To these doctrines, sir, I take leave to enter my dissent. I hope that when the rights of American citizens are invaded, not only the Supreme Court of the United States, but the lowest county court of the most remote district will dare to examine, to judge, and to redress. I hope this Senate will never, by an admission of such base and slavish doctrines, surrender the authorities conferred on them by our Constitution. I hope they will ever be ready to aid the cause of freedom and justice. And in this hope I shall give my vote for the resolution on your table.

    Mr. [Robert] WRIGHT [DR, Maryland] said he was opposed to the resolution; he could not discover that the applicants had any right to the extract prayed for. The Senate had by a specific rule declared the Executive records a secret. But he could not conceive what benefit they (the petitioners) could derive from an extract if they obtained it. They ask that the Secretary of the Senate may be allowed to certify facts from the Executive record; but the Supreme Court, nor no court; would admit such a certificate as testimony, because the Secretary had no seal. In order to get any benefit from this record, the court should allow the petitioners a subpoena to the Secretary of the Senate, with a duces tecum. He challenged all lawyers upon this subject, and all men of common sense; they must all agree with him that the thing prayed for could do the petitioners no good without a seal. But, Mr. Wright said, he had further objections against passing the resolution. It was well known why this certificate was requested. It was to aid in an audacious attempt to pry into Executive secrets, by a tribunal which had no authority to do any such thing; and to enable the Supreme Court to assume an unheard of and unbounded power, if not despotism. It was to enable the Judiciary to exercise an authority over the President, which he could never consent to. It was well known that the persons applying were enemies to the President, and that the court were not friendly to him, and, under these circumstances, to interfere in the business would be making the Senate a party. No court on earth could control the Legislature, and yet it had been held here on this floor that they could, and this was a part of the same attempt to set the court above the President, and to cast a stigma upon him. The President had a right to withhold the commissions from these justices, because they did not hold their offices de bene merito but de bene placito.

    Mr. [James] HILLOUSE [F, Connecticut] remarked that he did not discern anything in the resolution under consideration that had the smallest relation to the character and conduct of the President, nor was there anything in the application that could lead to such a conclusion. It is said there is a cause pending before the Supreme Court of the United States, in which it is important to ascertain the fact, that the Senate did advise and consent to the appointment of the individuals named in this application to be justices of the peace for this territory, and a copy of the journals of the Senate is requested for that purpose--the journals of the Senate being the only evidence of the fact, can that evidence with propriety be withheld? The opinion that such copy would not be admitted as evidence cannot be correct, for it is the only mode in which many important facts in relation to appointments to office, and the ratification of treaties, can be proved. For what purpose are the journals (which are the only record of the proceedings of the Senate) kept, if they are not to be resorted to as evidence of what is done in Senate?

    Suppose a question to arise in a court of justice relative to the office of the marshal or judge, and it should be claimed that there had never been a Constitutional appointment to such office; for that the nomination had been rejected by the Senate, and their advice and consent had never been obtained--or in case of a treaty with a foreign nation the President should by Proclamation declare the ratification, and promulge the same as the Supreme law of the land, where the Senate had Refused their advice and consent to such ratification--in neither case would the act of the President be valid without the previous advice and consent of the Senate, and how can it be proved that such advice and consent has been had but by a resort to the journals of the Senate? Surely the commission or proclamation of the President could not be conclusive, because the Senate is an independent body on whom the Constitution has devolved certain Executive duties of which the President can have no personal knowledge; the performance of which duties are by the Constitution made indispensable to the validity of certain acts of the President. In all these cases the President may be deceived; the Secretary of the Senate may by mistake or fraud certify that the advice and consent of the Senate has been had to an appointment to office, or the ratification of a treaty, when the fact is otherwise; and where, but to the journals of the Senate, can we resort to correct the error? It is a possible case that a President may assume the right, in opposition to the opinion of the Senate, to make appointments to office and ratify treaties, and shall it be said his commission or proclamation is to be admitted as conclusive evidence, which cannot be questioned, and in that way evade the Constitution ? This would be giving to the President high prerogatives indeed; it would be investing him with the absolute power of appointment; and declaring that his proclamation shall be the supreme law of the land. The commission of the President is undoubtedly high evidence of the appointment to office and the proclamation of the ratification of a treaty, but cannot be conclusive, because the Constitution has made the advice and consent of the Senate a prerequisite, and indispensable to the validity of the appointment or ratification, and nothing can come in place of it. A rejection of this resolution will be a denial of right to an individual, and, under any Government, would be considered as an arbitrary, tyrannical act. Under these impressions, he should give his vote in favor of the resolution.

    Mr. [James] JACKSON [DR, Georgia] said, the Executive Journal ought not to he given to any applicants, much less to these. He considered the whole as an attempt to injure the Executive. The applicants had a process before the Supreme Court, and let them get along with it as well as they could; if they could obtain a decision of court in their favor, let them make the most of it; he hoped the Senate would not interfere in it, and become a party to an accusation which might end in an impeachment, of which the Senate were the Constitutional judges. One case, he would agree, might occur, when the Senate must give up their Executive records, and everything else, if required by the House of Representatives, as evidence to support an impeachment; their call would be omnipotent, in his opinion. But he thought the commission of the President was the only evidence of an appointment, and in all cases conclusive. And he would never lend his aid to set the Judiciary above the Executive. Let the applicants inform the House of Representatives, if any officer of the Government had injured them, and procure an impeachment, if they could; this would be the proper remedy.

    Mr. [Uriah] TRACY [F, Connecticut] said he was not sorry for this discussion, and as there had never, to his knowledge been a similar application, the decision on this would form an important precedent; he therefore thought it best that the subject should be examined in all its bearings....Let us see, said he, what the facts are. The request is for an extract from the Executive Journal of the Senate, as testimony in a court of justice, and claimed to be absolutely necessary to establish the rights of individuals. He knew nothing of the cause, except what he derived from the petition, and the declarations of gentlemen in debate, by which he learnt that a mandamus was prayed for against the Secretary of State for withholding certain commissions which had been completed by the President, and left with the Secretary for delivery. The court was authorized by statute of the Federal Legislature, among other things, to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding offices under the authority of the United States.

    A plain simple proceeding, before a court competent to hear and decide. What reasonable cause of alarm could this be to the friends of the President?

    Mr. [Abraham] BALDWIN [DR, Georgia] had not been in the House when the debate commenced. He thought, as it related to Executive business, it ought to have been conducted as such business usually is; that, as the question then stood, he should be against the resolution. He considered it as relating to a part of our Constitution, which the sages who framed, and certainly those who adopted, it, had always considered as peculiarly delicate... He thought no general rule should be made, either to grant or to withhold extracts from that journal. Every application should, he thought, be considered and decided under its particular circumstances. That the present case was an application for a mandamus to the Secretary of State, by persons conceiving or, stating themselves to be justices of the peace; that, even if they could obtain the extract they ask for, it would not answer their purpose; for, although the Senate approved of an officer when nominated by the President, it did not follow that the President would make the appointment--circumstances might arise to alter his opinion. The applicant therefore for a mandamus must be defeated, if he could not produce the President's commission, and if he could, that was a sufficient evidence of his right, without the extract asked for. Mr. B[aldwin]. was therefore of opinion that the petitioners had asked for a thing which was useless; and he was convinced that the Senate, exercising a sound discretion, would not grant a thing which must be useless, and which might, perhaps, be productive of evil consequences.

    Mr. [DeWitt] CLINTON [DR, New York] said that everything which had been uttered in the debate confirmed the first impression of his mind against the propriety of granting the prayer of the petition. But we are told, said Mr. C[linton], by my colleague, that perhaps the Supreme Court may send a subpoena for our Secretary, and compel him to produce the Journal, in spite of our order forbidding him. Such a step would certainly bring things to a crisis, and for his own part he thought it desirable that measures might be taken for ascertaining the real extent of the power of the court. He was sure if they possessed the power contended for, the rule of the Senate ought to be altered, so as to forbid our Secretary from divulging the secret journal unless by order of the Senate or of the Supreme Court.

    Mr. [James] Ross [F, Pennsylvania] said that although, the Senate decided upon all Executive business with closed doors, yet Executive proceedings were never considered secret, except in two cases: when the Senate imposes an injunction of secrecy upon the members, and in cases of confidential messages from the President. In all other cases the Executive business of the body is no secret; it has never been so considered in practice, for it is communicated by Senators without reserve; and when nominations are of moment they get into the newspapers before the Senate has decided upon them. Entire lists of nominations have been published antecedent to the sanction of the Senate, and yet no complaint was ever made here that a rule of this body had been violated. It cannot therefore be pretended that there is any injunction of secrecy to forbid the copy prayed for by the petitioners. The whole difficulty arises from a rule directing our Secretary not to give certified extracts of the Journal without express permission of the Senate. This regulation is wise and very useful. It represses idle curiosity, which, for improper purposes, might publish the votes of the Senate respecting officers to nomination, or nominations made and withdrawn by the President, before the Senate acted upon them.

    But when a citizen states that he has a suit in a high court of justice; that the acts of this body and copies of our journals will be material testimony in his cause; when that part of the Journal asked for is not under any injunction of secrecy, or in its nature confidential, what pretence can there be for withholding it?

    5. Direct students to read the extracts from John Marshall's opinion for Marbury v. Madison and complete the worksheet.

    6. As a culminating activity, ask students to write an opinion paper or essay on one of the following:

    • Whether Marbury v. Madison fulfilled the original intent of the Constitution, or not, by giving the judiciary judicial review and the power to enforce checks and balances
    • Whether the terms ‘strict construction' and ‘judicial activism' are capable of being applied in the context of judicial review, or not

    Mr. Chief Justice MARSHALL delivered the opinion of the court.

    At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a mandamus [5 U.S. 137, 154] should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the district of Columbia.

    No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the opinion to be given by the court is founded...

    In the order in which the court has viewed this subject, the following questions have been considered and decided.

    1. Has the applicant a right to the commission he demands?

    2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

    3. If they do afford him a remedy, is it a mandamus issuing from this court?

    The first object of inquiry is,

    1. Has the applicant a right to the commission he demands?

    ...Mr. Marbury, then, since his commission was signed by the president and sealed by the secretary of state, was appointed; and as the law creating the office gave the officer a right to hold for five years independent of the executive, the appointment was not revocable; but vested in the officer legal rights which are protected by the laws of his country.

    To withhold the commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.

    This brings us to the second inquiry; which is,

    2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? [5 U.S. 137, 163] The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court...

    It is then the opinion of the court,

    1. That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice [5 U.S. 137, 168] of peace for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years.

    2. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.

    It remains to be inquired whether,

    3. He is entitled to the remedy for which he applies. This depends on,

    1. The nature of the writ applied for. And,

    2. The power of this court.

    1. The nature of the writ.

    ... It is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute.

    It is to deliver a commission; on which subjects the acts of congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the executive; and being so [5 U.S. 137, 173] appointed, he has a right to the commission which the secretary has received from the president for his use. The act of congress does not indeed order the secretary of state to send it to him, but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by another person.

    It was at first doubted whether the action of detinue was not a specific legal remedy for the commission which has been withheld from Mr. Marbury; in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold, is incapable of being ascertained; and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission, or a copy of it from the record.

    This, then, is a plain case of a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired,

    Whether it can issue from this court.

    The act to establish the judicial courts of the United States authorizes the Supreme Court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.'

    The secretary of state, being a person, holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.

    The constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present [5 U.S. 137, 174] case; because the right claimed is given by a law of the United States.

    In the distribution of this power it is declared that 'the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.'

    It has been insisted at the bar, that as the original grant of jurisdiction to the supreme and inferior courts is general, and the clause, assigning original jurisdiction to the Supreme Court, contains no negative or restrictive words; the power remains to the legislature to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.

    If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction made in the constitution, is form without substance.

    Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all.

    It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it. [5 U.S. 137, 175] If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction.

    When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning.

    To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

    It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original.

    It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to [5 U.S. 137, 176] appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.

    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 recognise 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 pro- [5 U.S. 137, 177] hibited 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. [5 U.S. 137, 178] 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 he 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 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. [5 U.S. 137, 179] 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.

    In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?

    ...From these and many other selections which might be made, it is apparent, that the framers of the consti- [5 U.S. 137, 180] tution contemplated that instrument as a rule for the government of courts, as well as of the legislature.

    Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

    The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.'

    Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.

    If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

    It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

    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.

    The rule must be discharged.

     

    1. Has the applicant a right to the commission he demands? Why?
    2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? Why?
    3. If they do afford him a remedy, is the writ of mandamus the appropriate remedy? Why?
    4. If they do afford him the remedy of the writ of mandamus, does the act to establish the judicial courts of the United States (the Judiciary Act of 1789) authorize the Supreme Court to issue the writ?
    5. Is the Secretary of State the type official who may be served a writ of mandamus?
    6. The Constitution gives the express power of the Supreme Court to hear what cases?
    7. The Constitution allows the court to issue a mandamus in case of which jurisdiction, appellate or original?
    8. What is the essence of appellate jurisdiction?
    9. Is the authority given to the Supreme Court by the act establishing the judicial courts of the United States supported by the Constitution?
    10. Can an unconstitutional act passed by the legislative branch become the law of the land or are the powers of the legislature defined and limited by the Constitution?
    11. Is the Constitution ordinary or superior and paramount law?
    12. What is the province and duty of the judicial department?
    13. How does the oath of office support the idea that the Constitution is the form of rule for the government?
    14. What is the supreme law of the land?
    15. Is it in the power of the Supreme Court to issue the mandamus?

    Assessment

    The students' opinion papers may be evaluated on a twenty-point scale (which may be multiplied by five to convert to 100-point scale or for conversion to letter grades) using the following rubric:

     

    Excellent

    Good

    Fair

    Not Satisfactory

    No Work

    Historical Comprehension

    10 points

    (10) Written assignment presents opinion while demonstrating excellent

    • analysis of information
    • command of facts
    • synthesis of information
    • interpretation

    (9-8) Written assignment presents opinion while demonstrating good

    • analysis of information
    • command of facts
    • synthesis of information
    • interpretation

    (7-6) Written assignment presents opinion while demonstrating fair

    • analysis of information
    • command of facts
    • synthesis of information
    • interpretation

    (5-1) Written assignment provides opinion but with little historical

    • analysis of information
    • command of facts
    • synthesis of information
    • interpretation

    0

    Technical Writing Skills

    10 points

    (10) Written assignment shows excellent

    • compositional structure
    • sentence structure and variety
    • vocabulary use
    • grammar, spelling, punctuation

    (9-8) Written assignment shows good

    • compositional structure
    • sentence structure and variety
    • vocabulary use
    • grammar, spelling, punctuation

    (7-6) Written assignment shows adequate

    • compositional structure
    • sentence structure and variety
    • vocabulary use
    • grammar, spelling, punctuation

    (5-1) Written assignment shows inadequate

    • compositional structure
    • sentence structure and variety
    • vocabulary use
    • grammar, spelling, punctuation

    0

    Related Works

    "John Marshall," Remarks by Chief Justice William H. Rehnquist, October 6, 2000 at the College of William and Mary at http://www.supremecourtus.gov/publicinfo/speeches/sp_10-06-00.html

    "Judicial Review and the Supreme Court" from the Famous Trials in American History website developed by Professor Doug Linder at the University of Missouri-Kansas City Law School at: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm

    George Mason University's Birth of the Nation: The First Federal Congress 1789-1791 online exhibit for the First Federal Congress Project has a section, Creation of the Judiciary, which includes facsimiles and transcriptions of the Senate draft and final print version of the Judiciary Act of 1789, and Congressional portraits and comments about the judiciary at http://www.gwu.edu/~ffcp/exhibit/index.html.

    The National Archives has two publications which provide background information, facsimiles of documents and trace the impact of the Judiciary Act of 1789 and Marbury v. Madison. The Judiciary Act of 1789 is a booklet in the Milestone Documents in the National Archives series, published in 1989. Milestone Documents in the National Archives, published in 1995, features Marbury v. Madison.

    The American Heritage History of the Law in America, written by Bernard Schwartz and published in 1974 has excellent illustrations and useful information about the John Marshall and the Supreme Court.

    "William Marbury, Plaintiff" is the James Madison Center's brief, illustrated introduction to the man whose justice of the peace appointment triggered Marbury v. Madison: http://www.jmu.edu/madison/center/main_pages/madison_archives/era/judicial/plaintiff.htm. David Forte's full article for the Catholic University Law Review, "Marbury's Travail: Federalist Politics and William Marbury's Appointment as Justice of the Peace" may be read at: http://www.jmu.edu/madison/center/main_pages/madison_archives/era/judicial/article1.htm

    Equal Justice Under Law is an old series of 30-minute videos with teachers guide about the decisions of Chief Justice John Marshall including Marbury v. Madison, Gibbons v. Ogden, McCulloch v. Maryland, and the Trial of Aaron Burr. They are designed for use with students and present the issues through historical recreations. If not available through the district, check with the state bar association.

    Interdisciplinary Links

    Art and Architecture: The Supreme Court has been in its own building only since 1935. The story and illustrations of the "Homes of the Court" may be viewed at the Supreme Court Historical Society website at: http://www.supremecourthistory.org/02_history/subs_sites/02_d.html The Old Supreme Court Chamber may also be viewed at the U.S. Capitol website at: http://www.aoc.gov/cc/capitol/oscc.cfm. Ask students to research court facilities from the 18th century with those of the 19th century and then 20th century. They may

    • create an image portfolio
    • compare and contrast the prevailing styles during the 18th, 19th and 20th centuries
    • explore the symbolism in the architecture of the present U.S. Supreme Court building

    Language Arts: Ask students to write a letter from the point of view of either William Marbury or Thomas Jefferson about John Marshall's decision in Marbury v. Madison.

    Music: Stevie Wonder wrote "Signed, Sealed, Delivered I'm Yours." Look at the lyrics and listen to it, and then create a play list of songs about justice, law, judges, and/or the courts.