Marbury v. Madison: Document J, Unanimous Majority Opinion, Marbury v. Madison, 1803

Do you use document-based questions in your classroom?

This summer the Bill of Rights Institute is blogging a document-based question on the Supreme Court case Marbury v. Madison (1803). Each weekly post will feature an excerpted document related to the case, along with some questions to guide your thinking on it. Each document should be used to address the question: “Argue whether or not the Supreme Court should have the power to overturn unconstitutional federal laws.”

Check out our previous posts for Document A, an excerpt from the Anti-Federalist Papers; Document BDocument C, and Document D, excerpts from Federalist no. 78; Document E, an excerpt from Federalist no. 81; Document F, an excerpt from Article III of the US Constitution; Document G, the Supremacy Clause of the US Constitution; Document H, an excerpt from the Judiciary Act of 1789; and Document I, the Kentucky Resolution.

Unanimous Majority Opinion, Marbury v. Madison, 1803

The authority … 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….

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….

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 decideon 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….

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.

>Why does this ruling argue that the Supreme Court has the power to interpret the Constitution?

>What does Marshall call the “very essence of judicial duty”?

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Check back each week to see the next document and how it might change your thinking on this important question that affects all public school teachers and students in the U.S.! If you are enjoying this DBQ – be sure to check out our curriculum Supreme Court DBQs: Exploring the Cases the Changed History.

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