Great Ironies of History: The Peculiar Historic Fable of Marbury v. Madison

On the first day of virtually every course in American Constitutional Law the case of Marbury v. Madison is taught. Students are usually told that this is the case that established what we refer to today as judicial review. They are instructed as to the continuing controversy of how The Great Chief Justice, John Marshall, created out of thin air the power or the courts to pronounce acts of the other branches of government unconstitutional. A cursory review of the bare facts of the case usually accompanies the legal analysis of the opinion generally followed by extensive commentary and criticism by put and contemporary legal scholars. All in all the student is left with the impression that the ultimate power that the Supreme Court wields today was invented by, and is a direct lineal descendent of, John Marshall and his opinion in the case of Marbury v. Madison. This paper will briefly attempt to dispel this legend. The first part of this piece will trace some of the origins of judicial review to show that it was not the creation of John Marshall in 1800, but rather sprang from circumstances of a century and a half of history that were peculiar to the American colonies and the new republic. In addition, it will be shown that judicial review had in fact been exercised in the courts of America numerous times before the decision in Marbury, and that this power must have been within the contemplation of the framers at the time the constitution was written. The second part of this paper will examine the whole case and controversy. By examining the events surrounding the case it will be shown that the motives compelling the decision were rooted in a fierce political battle and that the entire issue of judicial review, which need not have been addressed in the decision at all, would never have come up but for this political warfare. The final part of this paper will attempt to show that the case, at the time, did not stand for what it has come to mean today. The continuing controversy that is taught in law schools today is a controversy that did not heat up until long after John Marshall was dead and subsequent Supreme Courts used his eloquence on the matter to expand the power of the Supreme Court to dimensions that John Marshall never had intended nor even imagined possible