Author:Roosevelt, Kermit

Some are born great, some achieve greatness, and some have greatness thrust upon them. --William Shakespeare, Twelfth Night, II.V INTRODUCTION: MARBURY'S GREATNESS

Marbury v. Madison is a great case. (1) That much is undeniable. It is "widely regarded today as the most important case in American constitutional history." (2) Some enthusiasts go farther; in 1901, an Arkansas judge proclaimed it "the most important event in our history" apart from the formation of the government. (3) While the Supreme Court has never gone that far, it tends to invoke Marbury in high-profile and contentious cases: in the hands of the Justices, Marbury is a confidence-booster, an important support for the exercise of judicial review. (4) If there is one proposition that constitutional scholars and judges of all stripes can agree on, it is that "Marbury's place in the constitutional canon is secure." (5)

But why? How did Marbury become great? What does it stand for? And--perhaps most important--does it deserve its lofty standing?

Earlier articles have explored some of these questions. There has been substantial recent scholarship on the process by which Marbury became a great case and the construction of its meaning--the proposition it stands for in contemporary legal discourse. (6) We build on that research to create a platform from which to explore the last question. In line with Voltaire's suggestion that if God did not exist, it would be necessary to invent him, it turns out that Marbury became great because it was needed. People in the legal community--judges, scholars, and advocates--felt that a great case was needed to promote aggressive judicial review. And so they made one.

The use of Marbury as support for judicial review--and more particularly, as support for judicial invalidation of government acts--did not follow immediately or ineluctably from the decision itself. Instead, as we describe in Part I, it appears to have begun during the Lochner era, as advocates of aggressive judicial review of economic regulation looked for support for their preferred stance. After the Lochner jurisprudence went down to defeat in the New Deal era, Marbury too diminished in prominence. It returned in the Warren Court era, beginning with Cooper v. Aaron and continuing thereafter. In some cases, we find it deployed by opponents of judicial invalidation, or by both sides of the decision. Everyone agrees that Marbury is important; everyone wants to have Marbury on their side--even if they cannot agree on what it means.

This much has been said before. The novel move we make is to offer a normative assessment of the canonization of Marbury. Our argument is that Marbury cannot sustain the burden its role demands. The early ascension of Marbury came as part of an era of judicial review now roundly rejected by the Supreme Court and commentators alike. (7) Marbury has come back, miraculously untainted by its association with Lochner (8) But, as we argue in Part II, Marbury cannot escape Lochner, for Lochner (in its symbolic version) is simply the dark side of Marbury, no more separable than its shadow. (9)

Marbury does enunciate or endorse (some form of) judicial review. But it has nothing to say about the crucial question of how judicial review should be exercised: when it should be aggressive and when it should be deferential. (10) (This opacity or lack of content is why the Lochner Court, the Warren Court, and the Rehnquist/Roberts Court can all invoke Marbury for support, even though they have very different theories about the proper exercise of judicial review.) Indeed, if the question is about the proper level of deference rather than the existence or nonexistence of judicial review, Marbury is not a great decision at all. As we argue in Part III, it is a terrible one, worse even than Lochner. (11)

Where does that leave us? It would be nice if there were a canonical early decision that enunciates the principle of judicial review and at the same time says something about when it should be aggressive and when it should be deferential. It would be nice if that opinion were written by the great Chief Justice John Marshall. And for teaching purposes--since the constitutional canon is constructed in large part through the selection of cases for casebooks--it would be nice if the decision illustrated both aggressive and deferential review.

Fortunately, such a decision exists. As we explain in Part IV, it is McCulloch v. Maryland. (12) The last part of the Article examines McCulloch, explaining why it succeeds where Marbury fails. McCulloch, we conclude, should replace Marbury in our constitutional canon as the symbol of judicial review. Whether this will occur in judicial opinions is, of course, up to judges, and we concede that law review articles may have limited impact on judicial practice. (It does, however, appear that law professors and legal activists are responsible for creating the Marbury to which judges now appeal. (13)) Thus we have an additional suggestion, which law professors can implement on their own. McCulloch should replace Marbury as the first case that students encounter in their constitutional law courses.

As a starting point, we turn now to the story of Marbury. How did it become the decision it is today?


    In its fledging years, Marshall's now-famous opinion was rarely cited in cases or treatises. This is likely because judicial review, the principle that eventually elevated Marbury to greatness, was widely accepted and commonly used in the years prior to Marbury. (14) That is not to say there was no debate over the operation of judicial review and its scope - there was. But Marbury actually says very little about those issues. (15) The issue for which Marbury has become famous--whether the power of judicial review exists at all--had been largely settled. The suggestion, occasionally seen in celebrations of the opinion, that Marbury created judicial review or was the first instance of its exercise is simply wrong. (16) More striking, the arguments that Marbury marshals in favor of judicial review were not novel. Marshall's argument--and even his rhetorical flourishes--borrow from Alexander Hamilton's Federalist 78 to an extent that would support charges of academic dishonesty in an undergraduate term paper. (17)

    Given that Marbury said nothing novel about judicial review, it is not surprising that up through the mid-nineteenth century the attention it garnered was for other aspects of its discussion. Marbury was cited largely for its analysis of the availability of mandamus and the scope of original jurisdiction. (18) When the Supreme Court eventually found another occasion to exercise judicial review to invalidate an act of Congress in the infamous Dred Scott case, it did so without mention of Marbury. (19) After a half-century drought, Dred Scott opened the floodgates of judicial review, as nineteen decisions invalidated acts of Congress between 1857 and 1893. (20) In none of those cases, however, did the Court cite Marbury. Presumably, doing so seemed neither necessary nor valuable to the opinion writers. When, then, did Marbury take the stage as support for the exercise of judicial review?

    Surprisingly, the answer originates in another infamous case, which former Supreme Court Chief Justice William Howard Taft believed did more to damage the Court's prestige than any other, Pollock v. Farmers' Loan & Trust Co. (1895). (21) Pollock marked the Supreme Court's first invocation of Marbury when using judicial review to invalidate a federal statute. (22) The majority opinion in Pollock, a 5-4 decision, elicited strong rebukes from the dissenting Justices, (23) incited controversy and led to both Democrats and Populists adopting anti-Court and anti-Marbury rhetoric in the elections of 1896. (24) Ultimately, Pollock was reversed by a constitutional amendment (the sixteenth). (25)

    Despite the reaction, opinion-writers apparently absorbed the lesson that Marbury helped: after Pollock, invocations of Marbury increased notably. (26) While Pollock's opponents "regarded Marbury as a "usurpation" of legislative authority, and judicial review as an unwarranted power," its defenders hailed Marbury as fundamental to American liberty. (27) By the early twentieth century, the conservative faction, including much of the elite American bar, orchestrated the canonization of Marbury and deification of its author, John Marshall, whose 1901 commemoration featured several of the Pollock majority Supreme Court Justices. (28) In lockstep, throughout the early 1900s, constitutional treatises, once nearly devoid of Marbury's judicial review holding, began expounding Marbury's primacy. (29) As noted by Davidson M. Douglas, "Constitutional law treatises published after 1900 bore a very different quality with respect to judicial review and the importance of Marbury in comparison with their nineteenth-century predecessors. Almost without exception, the status of Marbury is significantly elevated. Most early twentiethcentury treatises devoted a separate section to a discussion of the case." (30)

    By the 1920s, nearly every treatise exalted (or inflated) Marbury's status, as it became the leading case for learning about the Court's role in overturning unconstitutional laws. (31) Indeed, in some Constitutional texts, Marbury made up the entire discussion of judicial review. (32)

    The same pattern exists within constitutional law casebooks. As late as 1894, prominent casebooks' discussions of judicial review either omitted Marbury or included it as simply one of several sources without attaching special significance to it. (33) But beginning in the twentieth century, constitutional law casebooks recognized and facilitated Marbury's ascendancy, often singling it out as the case on judicial review, or marking it as first among equals. (34) Although there remained a bloc of intransigent scholars refusing to acquiesce to Marbury's...

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