Judicial Review—Marbury v. Madison1803

Class Length: 2-3 Class Meetings


Students will be able to:

  1. Describe the significance of the Marbury v. Madison court case of 1803 as it relates to the court system today.
  2. Read important documents with a critical eye.
  3. Define the term judicial review.
  4. Critically analyze a political cartoon.


- Copies of Anti-Federalist 78-79 and The Power of the Judicial Branch: The Federalist Number 78 (cited reference #1)

- Copies of Judicial Branch political cartoon (cited reference #3)

- Copies of the Judiciary Act of 1789 (cited reference #4)


- Judicial Review

- James Madison

- William Marbury

- John Marshall

- John Adams

- Thomas Jefferson

- Federalist

- Anti-federalist

- Judiciary Act of 1789


Teacher will introduce the following scenario and questions to the class:

- The Congress passes a law that says all land-owning citizens must use all of their land or else it will be repossessed by the government. Citizens have 6 months to comply. The president signs this law and asks the military to enforce it.

- Questions to Consider:

o Do the people any say in this decision?

o The United States judicial system is designed to have a variety of courts review the constitutionality of the decisions of the Executive and Legislative Branches, with the final decision resting with the nine appointed judges (8 appointed Justices and 1 Chief Justice). Do you think this is a fair system? Should nine people determine the fate of millions? Why/Why not?

o How would our government work without a system of judicial review?

Teacher will briefly explain the Marbury v. Madison case of 1803 to the class (For instructional assistance teacher can refer to http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm for instructional notes):

- Famous case that established the concept of judicial review; after Thomas Jefferson was elected President in 1800, following the John Adams administration.

- In opposition to the Jefferson administration’s ideals, outgoing Federalist President Adams sought to keep federalist power in the government by appointing several federalist judges for life. These judges were approved by the Senate, all commissioned by then outgoing Secretary of State John Marshall,

- All judges except for one were commissioned; the one was William Marbury who was restricted commission by President Jefferson. Marbury brought his grievances to the Supreme Court, demanding the new Secretary of State James Madison commission into judgeship.

- The Supreme Court made a 4-0 decision. In his new role of Chief Justice, John Marshall made a ruling that said that Marbury was entitled to his commission. Marshall noted, however, that a law that gave the Supreme Court the power to rule on the case was unconstitutional, thus negating the Supreme Court to give Madison the authority to commission Marbury.

The teacher will distribute The Power of the Judicial Branch: The Federalist Number 78, placing particular focus on the following passages (adapted from http://www.landmarkcases.org/marbury/home.html):

- "The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution . . . [it] may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

o Students will write about the author’s meaning of this quotation.

- "For there is no liberty, if the power of judging be not separated from the executive and legislative powers."

o Students will explain how this quotation relates to the United States’ system of government.

o Why do you think judges have permanent tenure?

o What attitude does this document convey about the Supreme Court of the United States?

The teacher will distribute the Anti-Federalist 78-79, and have students consider the following questions (adapted from http://www.landmarkcases.org/marbury/home.html):

  1. What differences are described between the court systems of Great Britain and the United States?
  2. Comparing this document with the “Federalist Number 78,” what are the critical areas on which the authors agree and disagree?

Students will imagine that the Anti-Federalist proposals had been adopted instead of the Federalist ideas. How would the United States de different today?

How would the United States be different today if the proposals outlined in the Anti-Federalist had been accepted?

Students will receive text on the Judiciary Act of 1789, (referenced and adapted from http://usinfo.state.gov/usa/infousa/facts/democrac/8.htm) playing particular attention to sections 1 and 13, and the United States Constitution, paying particular attention to Article III. Students will compare and contrast these documents, and consider the following questions:

- U.S. Constitution, Article III, Section 1: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

- U.S. Constitution, Article III, 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 Land 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.

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.

o Under the Constitution, who has the power to create the court system?

o Does the Congress have the authority to change the jurisdiction of the Supreme Court?

- Judiciary Act of 1789, Sec. 1: Be it enacted. That the supreme court of the United States shall consist of a chief justice and five associate justices

- 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 principle and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. . . .

o What powers are granted to the Supreme Court that are not provided in the United States Constitution?

o Who should the people side with if an Act of Congress and the United States Constitution contradict or are pitted against one another?

o Do you think the Supreme Court should have the power to grant someone authority? How did this relate to William Marbury’s situation?

Teacher will present the students with the following scenario:

- The concept of judicial review, as has just been discussed, surfaced as a result of President Adam’s attempt to maintain federalist power in the Executive Branch after his administration had left office. President Andrew Jackson had what is referred to as a Kitchen Cabinet, in that he appointed his best friends and allies, able journalists and editors of influential regional newspapers, to Cabinet positions during his administration. The current George W. Bush administration has followed in similar fashion: Secretary of Commerce, Donald Evans, is reported to be President Bush’s best friend (referenced from ?).

o Should kitchen cabinets be allowed? Why/Why?

o How does such a system influence the balance of powers in the U.S. Government?

o Describe a time (for a school project, chores at home, at work, etc) where they were forced to work with someone they didn’t like or approve of. Students will consider the advantages and disadvantages of working with people in such a situation. What would you do to ensure your time together was successful?

o How does someone attain the right to decide authority (parents, teachers, bosses, etc)? Do you think the process is fair? Relate this process to the one describe via Marbury v. Madison. Would you have determined a different outcome? Why/why not?

Students will receive a political cartoon concerning the role of the federal court system as it relates to the Marbury v. Madison case:


(Cartoon source from )

Students will analyze this cartoon, and determine what relation the Marbury v. Madison case has on today’s court system.

- Teacher will note the cartoon explains the court pays close attention to issues of the past and also to the affects on contemporary issues.


FindLaw (2007). The power of the judicial branch: The federalist number 78 and the anti-

federalist. Marbury v. Madison1803. Retrieved November 13th, 2007 from http://www.landmarkcases.org/marbury/home.html

International Information Programs (2007). Marbury v. Madison. Basic Readings in U.S.

Democracy: 1 Cranch 137 (1803). Retrieved November 13th, 2007 from


International Information Programs (2007). Political cartoon. Current EJournals:

Landmark Decisions. Retrved Novemebr 13th, 2007 from

International Information Programs (2007). The judiciary act of 1789. Basic Readings in

U.S. Democracy: U.S. Statutes at Large 1 (1789): 73. Retrieved November 13th,

2007 from

Pearson Education Inc. (2007). Kitchen cabinet. TeacherVision: Family Education.

Retrieved November 13th, 2007 from

Rowan, B. (2007). Cabinet members of george w. bush: The first term. Infoplease.

Pearson Education Inc. Retrieved November 13th, 2007 from


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