Credit: Kami Harris
Article 7.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
(This provision gave the people the right to have the Constitution go into effect as soon as nine states had ratified it.)
Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names.
*All “red” information taken from Making of America chapter 27.
Amendment 1
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; This provision guaranteed to all Americans the right to enjoy the free exercise of the religion of their choice without the government giving any preference to one “establishment” or denomination over another. There was some concern among the Founders lest this prohibition give the impression that the government was hostile to religion. They wanted it clearly understood that the universal, self-evident truths of religion were fundamental to the whole structure of the American system. or bridging the freedom of speech, or of the press; This provision gave the American people the right to have the federal government prohibited from exercising any legal authority over the freedom of speech or the freedom of the press. The Founders wanted any reasonable restrictions, regulations or standards of propriety to be established by the states. or the right of the people peaceably to assemble, This provision guarantees the right of the people to peaceably assemble without any interference by the federal government. and to petition the Government for a redress of grievances. This provision guarantees the people the right to be able to petition the government without intervention or prohibition by the authorities.
Amendment 2
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. This provision guarantees the right of the people to keep and bear arms without interference by the federal government.
Credit: Susan Whittaker Butterfield
To help the scholars understand the different jurisdictions for various court cases, we first found a diagram explaining state courts vs federal courts. Then we copied and cut out the below issues line by line and asked them to place then under the headline they thought they belonged to. *Federal Jurisdiction: more limited subject matter
People between other states Over $75,00
Federal lands
Bankruptcy
Patenting
Copyrighting
Maritime law
Drug trafficking
Interstate Commerce
*State Court:
Car accidents
Contracts
Divorce
Business dispute
Speeding tickets
Credit: Marisa Corless
I like to debrief and then include in the discussion the actual findings and principles: Debrief including Findings of the Supreme Court:
John Marshall, recently appointed Chief Justice was still acting Secretary of State under Adams. Not all the commissions had been delivered and Marshall assumed that the new Sec of State would deliver them since the appointments had been approved and therefore were legal appointments. Jefferson ordered them to not be delivered.
#1 Madison’s refusal to issue the commissions was illegal and correctable.
#2 There should be a remedy and a writ of Mandamus would be the correct remedy
#3 The provision in the Judicial Act 1789 granting the Supreme Court the power to issue writs of mandamus was found unconstitutional therefore the Supreme Court stated they were unable to force Madison and the court didn’t have original jurisdiction
Marbury vs Madison has been criticized because the court shouldn’t have made any other considerations if it didn’t feel it had the authority over the case. Some have argued that the writs of mandamus should have fallen under the jurisdiction of the court because of Article III dealing with public ministers and consuls- James Madison should have fallen under that category.
Irony- Jefferson was staunchly opposed to judicial review as the final say- he said “to consider the judges as the ultimate arbiters of all constitutional questions; a dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so…Their power [is] the more dangerous as they are in office for life, and not responsible as the other functionaries to the elective control.
Results:
#1 Was Marbury entitled to his commission- yes- it was a legal commission
#2 Is there a legal remedy- is the writ of mandamus the answer?- yes
#3 Can the Supreme Court legally issue- no- the Supreme Court does not have original jurisdiction in this case. The Constitution only says there is a Supreme Court but Art. 8 gives Congress power to create the courts. Judiciary Act 1789 says the Supreme Court has original jurisdiction over cases where a state is a party, or when the suit is against an ambassador or other minister and thepublic trial shall be by jury. The Supreme Court has appellate jurisdication and to have power to issue writs of mandamus
The issue of Judicial review came when during arguments the court could have original jurisdiction but also could issue writs of mandamus- the writs were not in the original Constitution so the interpretation was that was not Constitutional and it was struck down because Congress cannot increase the Supreme Courts’s original jurisdiction. Marshall’s opinon was that the intent of the Supreme Court included judicial review
Roles:
You are a justice of the Supreme Court. The year is 1803. The day before John Adams left office, he signed the appointments of 42 federal justices. These justices were to preside in Virginia and D.C. The Senate had already approved their nominations. Because these commissions were signed the day before Adams left office, Thomas Jefferson took office before they could be delivered. William Marbury was one of those appointed. He desired the Supreme Court to issue a write of mandamus (order to follow through with his legal duties) to James Madison the Secretary of State to Jefferson as Madison had refused to deliver the commissions.
It is your job is the listen to the arguments, ask questions to clarify the arguments, and then to evaluate the case and make a determination. You realize there are three questions at stake. You must decide all of the following:
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?
You are the attorney for James Madison, Thomas Jefferson’s new Secretary of State. He is not appearing before court as it is not required of him and he doesn’t recognize the judicial branch as having authority over him.
Your arguments against issue the commissions are
1. The commission is a mere piece of paper until delivered. Since it wasn’t delivered, Marbury has no right to receive the commission.
2. It is not the Judiciary’s role to remedy a legal wrong committed by the Legislature or the Executive Branch
3. The Supreme Court does not have the power to issue an order to the Executive Branch to deliver the commission.
You are the Attorney for William Marbury. Marbury was appointed to serve as a justice of the peace in Alexandria, Virginia by President John Adams under the Judiciary act of 1800. His commission had not yet been delivered when Jefferson took office. When Madison became the new Secretary of State he refused.
Your arguments in favor of delivering the commission are as follows:
Since Marbury’s commission was signed and sealed under proper authority and procedures, he was entitled to his appointment.
The court was authorized to issue the writ of mandamus under the Judiciary Act of 1789
Since Madison- by not having the commission delivered- was not doing his duty as a public official, the court should issue the writ of mandamus to compel him to do so.
Supreme Court: Practice With Precedents
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