John Marshall and the Myth of Marbury
An Alpheus T. Mason Lecture on Constitutional Law and Political Thought: The Quest for Freedom
Robert Lowry Clinton, Southern Illinois University-Carbondale
The U.S. Supreme Court is now widely regarded to be the ultimate authority on constitutional questions in the United States. It has eclipsed the other branches of the national government in this role through development of the power of judicial review. The cornerstone of American judicial review is the case of Marbury v. Madison (1803), in which the Court -- for the first time -- invalidated a provision in a congressional act that the justices believed to be in contravention of the Constitution. Though the conception of constitutional judicial review embodied in Marbury was a very narrow one, betraying Founding era notions about the scope of the judicial function, the case has subsequently been developed as a precedent for a more aggressive form of constitutional review known as “judicial supremacy.” Judicial supremacy in constitutional law raises a serious problem for American constitutionalism by collapsing the distinction between “constitution” and “constitutional law” that is fundamental to any constitutional order based on a written instrument. The reinterpretation of Marbury to support judicial supremacy was part of a larger revision of American constitutional history that was accomplished in the late nineteenth and early twentieth centuries. This historical revision rendered plausible the idea that the Constitution is “what the Court says it is,” an idea that would have seemed absurd to jurists of Marshall’s time. The idea seems plausible to us now only because the jurisprudential world view of the early Supreme Court collapsed in the nineteenth century, giving way to modern legal positivism and a number of other complementary ideologies.