P4 | APUSH | Ms. Wiley | The Judiciary (1800-‘20), D___
Name:
Article III of the U.S. Constitution [The Judiciary]
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.
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.
Section. 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their
Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court.
The Judiciary and the Constitution:
 The Constitution (Article III) created one Supreme Court to hear cases and specified that Congress could establish
lower courts
 ______________________ jurisdiction: All cases affecting ambassadors and those in which a state shall be a party
 ______________________ jurisdiction: Congressional discretion to shape through legislation
 Authorized to hear actual cases and controversies only; power does not extend to cases which are
______________________
 President appoints; ______________________ confirms all federal judges and Supreme Court justices
Judicial Independence:
 The idea that the judiciary needs to be “kept away” from the other branches of government
 Should not be subject to improper partisan, popular influences
 To promote such “independence”, the U.S. grants ______________________ for judges (on “good behavior,” i.e. no
treason, high crime/misdemeanor, etc.) and forbids decreasing the salary of judges during their service
 Frees them to decide cases and make rulings fairly, even if those decisions are ____________________________ or
opposed by powerful interests
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The “Least Dangerous” Branch:
 Despite the undemocratic nature of the judiciary, the founders agreed that the
judiciary would be the least dangerous of the branches
 “The Executive not only dispenses the honors, but holds the
______________________ of the community. The legislature not only commands the
______________________, but prescribes the rules by which the duties and rights of
every citizen are to be regulated. The judiciary, on the contrary, has no influence over
either the sword or the purse…It may truly be said to have neither FORCE or WILL,
but merely ______________________.” – Alexander Hamilton, Federalist No. 78,
1788
Judicial Review:
 Power to declare national, state, and local laws invalid if in violation of the Constitution
 Constitution does not ______________________ provide the judiciary with this power
 Some argued it was implied and most of the founders believed it was an appropriate power
 “Where the will of the legislature, declared in its statutes, stands in
__________________________________________, declared in the ______________________, the judges ought to
be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws,
rather than by those which are not fundamental.” – Alexander Hamilton, Federalist No. 78, 1788
Marbury v. Madison, 1803:
 The Court inferred the power of judicial review from the text and structure of the
Constitution, explicitly stating their “right” to declare a law invalid in Marbury v.
Madison (1803)
 Declared a section of the ____________________________ to be unconstitutional
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In the final days of John Adams’s presidency, William Marbury (see image) and others
were appointed to government posts, but the appointments were
______________________
Newly arrived Jefferson administration had little interest in delivering the required
documents
To secure their jobs, Marbury invoked an act of Congress to obtain the papers
The Judiciary Act of 1789 ______________________ the Supreme Court to issue orders against government officials
Marshall, Chief Justice, observed that the act of Congress that Marbury invoked to sue in the Supreme Court
conflicted with Article III of the Constitution, which did not authorize such suits
The essential question facing the Court was must the Court follow the ______________________ (Judiciary Act of
1789) or the ______________________?
Supreme Court held that the Constitution was the law of the nation and that an act of the legislature, repugnant to
the Constitution, is invalid and void
Established the Supreme Court as the authority on the ______________________ of the Constitution
Jefferson’s Response:
 Jefferson lamented: “To consider the judges as the ultimate authorities of all constitutional questions [is] a very
______________________ doctrine indeed…our judges are as honest as other men and not more so. They have with
others the same passions for party, for power, and…privilege.”
1. Do you agree with Jefferson? Is it undemocratic to entrust justices with the power to make the “final decision” on
Constitutional issues? OR, do you agree with the Court that the judiciary needs the power of judicial review?
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The Countermajoritarian Difficulty:
 The exercise of judicial review – an appointed branch’s checking of an elected branch in the name of the Constitution
– appears to run counter to democratic theory
 This “political might” lay in the hands of appointed judges, people who are not ______________________ to the
electorate
 Judges can operate counter to majoritarian rule by invalidating the actions of people’s elected representatives
The Countermajoritarian Difficulty: Response
 Alexander Hamilton had already responded to such fears in Fed. No. 78
 Judiciary lacks the strength of the sword or the purse; has neither force nor will; merely judgment
 Judicial review is an essential ______________________ to legislative oppression
 Executive and legislative branches could completely ignore the Constitution…so long as they had the support of the
people
 Courts have historically used judicial ______________________ (used judicial review sparingly)
Marbury v. Madison (1803)
2. Evaluate Jefferson’s/Madison’s decision to disregard the undelivered commissions:
3. Why did Marbury petition the Supreme Court for a legal order?
4. Do you think the Supreme Court was correct in asserting that Section 13 of the Judiciary Act of 1789 was
unconstitutional?
5. Explain why a founder who crafted the Constitution at the Convention in 1787 would be happy with this decision.
Discuss specific political principles evident in the Constitution. (See P3D8)
6. What would be a better way to prevent tyranny: State nullification rights (see Sources on Adams Administration) or
judicial review? Explain.
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McCulloch v. Maryland (1819)
7. What was Maryland arguing in this case? Do you sympathize with their argument(s)? Why or why not?
8. How did the Court defend its position that the national bank was constitutional?
9. Do you agree with the Court’s decision? Why or why not?
10. Why would a proponent of states’ rights likely oppose this ruling?
11. How do both Marbury v. Madison (1803) and McCulloch v. Maryland (1819) highlight the Federalist legacy in
national politics/promote the idea of national supremacy?
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