Teaching Marbury v Madison

TPS. — Teaching with Primart Sources

Marbury v Madison 5 US 137 (1803)

Review the case

Issue:  Deliverability of a commission issued to Marbury as part of Adam’s Midnight Appointees

Background:  President John Adams is going out of office.  On the last day in office a group of Adams Federalist judges are approved by the Federalist controlled Senate and their commissions to office are signed and sealed by outgoing Secretary of State John Marshall.  Marbury’s is left laying on a desk to be delivered in DC the next day.  Jefferson’s new Secretary of State, Madison, refused to deliver the commission thereby preventing Marbury from taking office as a Justice of the Peace.  Marbury sues Madison to compel the delivery of the commission allowing him to assume office.  The case is heard by the Supreme Court of the United States (SCOTUS) with the newly appointed Chief Justice Mr. John Marshall presiding.  It is CJ Marshall who writes the decision of the unanimous court.

Plaintiff’s argument:  Mr Marbury was appointed a Justice of the Peace, confirmed by the Senate, and his commission to said office signed and sealed by Secretary of State John Marshall prior to his leaving office at the end of President John Adam’s term.  Mr. Marbury THEREFORE has every just expectation that his commission will be delivered so that he may assume office.  Mr. Marbury asks the Court to I join the current Secretary of State, James Madison forcing him to produce and then deliver the commission.  As statutory author for issuing this injunction plaintiff cites the Judiciary Act of 1789. 

Mr. CJ Marshall’s reasoning in the decision for the Court:  

  1. Marshall acknowledges the facts presented by Marbury are correct.
  2. Marshall states that Marbury by rights should receive his commission BUT
  3. Marshall states that the Court (SCOTUS) DOES NOT have the authority to issue the desired injunction forcing delivery by Secretary of State Madison because that provision of the Judiciary Act of 1789 is unconstitutional as written. 
  4. THUS Marshall uses his decision to institutionalize the constitutional principle of JUDICIAL REVIEW.  
  5. Marshall reasons that it is the primary duty of the courts to say what the law is.  AS the Constitution is the First Law of the Land, it is the courts duty to say what the Constitution means.  IT FOLLOW THAT the Court should then apply it meanings to existing statutes to see that comply with the Constitution.  Those statutes that DO NOT COMPLY with the Constitutional are declared null and void.  

Read Mr. CJ Marshall’s decision for the Court in its entirety. 

Read Thomas Jefferson’s comments/complaints on the case.

Jefferson to Abigail Adams 11 September 1804. 

Jefferson to James Madison 25 May 1810. 

Jefferson to William Johnson 12 June 1823 


Working to a conclusion:  

Consider Mr. CJ Marshall’s opinion.  

Then consider Jefferson’s objections in the three letters.  

  • What do you conclude with regard to this case?  
  • On what basis do you make your conclusions?
  • How do your conclusions affect the balance of power between the branches of the federal government?
  • Is this result the one the founders intended?  Check federalist papers.
  • Is this result one we today find desirable?  If yes, state why.  If not, explain why it is bad for governance.  


Marbury v Madison whiteboard presentation Kahn Academy

Marbury v Madison Bill of Rights Institute

Marbury v Madison ABA video

Marbury v Madison:  the case of the missing commission — American Heritage

Other Lesson Plans

EDCITment lesson plan — Marbury v Madison

iCivics Marbury v Madison  


Robert Brady

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