We present in broad outline a theory of document acts, using the influential Supreme Court opinion in Marbury v. Madison (1803) as our principal test case. Marbury has a superabundance of rhetorical questions. They make up a significant and stylistically prominent portion of the total linguistic material of the text, yet they all but disappear from Marbury’s citation history and thus its content as an enduring jurisprudential entity. To account for these facts, we examine Marbury as a whole text addressing a particular situation, as a pastiche of constructions, and as a tool of jurisprudential decision-making. The intersection and independence of these ‘modes of being’ call for an overarching theoretical framework capable of accounting for facets of documents’ existence at three distinct but interpenetrating strata: system, artifact, and construction. We base our theory on primordial cognitive capacities for joint attention and joint commitments, with the strata as consequences of embodied human minds born into and embedded in intersubjective environments filled with and shaped by documents and their circulation. The closed system of United States Supreme Court opinions makes an excellent case for a theory of document acts that will eventually be used to understand and explain more open-ended systems.

Leipzig 1989: dissolution of the East German state people or Staatsvolk – Karlsruhe 2020: dissolution of the German people – Courts and the people as a neglected constitutional relationship – Bundesverfassungsgericht's versions of the people – Analysis of the concept of people – Forms of action – Political people breaks down into two: original and electoral people – Marbury v. Madison – Duality as a matter of doctrine and principle – Duality in Lissabon Urteil – Conflation and reduction of authority to vote – Subordination of electoral to original people – The Court's logic pushed into motion – Exposing the constitution