John Marshall's Magical Feat

I'm not necessarily against it, but the logic of it is essentially the following:

1) John Marshall: The Supreme Court is the ultimate arbiter of the U.S. Constitution.

2) Critic: Who says?

3) JM: The Constitution itself.

4) Critic: Hey, Article III, the one setting up the Court, certainly does not say that in so many words. On what authority are we to read the Constitution that way?

5) JM: Please pay closer attention to step 1.

It is very similar to the way the Pope became infallible.


  1. Anyone can make such a claim. The trick is getting people to accept it.

  2. Some would say "the arising under" clause, though Alexander Bickel argued that this was insufficient.

    1. That certainly would be a vague way to say step 1!

      And no one seemed to know that's what it meant until Marshall.

  3. I like this story as much as the next guy, but judicial review really antedates Marbury v. Madison. It was very much part of American legal culture by the time the Constitution was getting rolling, and you can see that the federal judiciary's right to exercise the power was presupposed during the Philadelphia convention itself.

    None of this means that judicial review is a good idea. But the power was not founded on usurpation, at least as far as the federal courts are concerned.

    1. Well, P.S., I am just finishing a history of the Supreme Court by Peter Irons, who has written about a dozen books on that topic, and he says, no, Marbury really was a break through here, and no one was really sure who had "supreme" power until Marshall unilaterally declared his crew did and managed to pull it off. Sorry, I'm going to have to go with his opinion on this unless and until I have time to study the issue as deeply as he has.

    2. And of course, Marshall did not spin this out of whole cloth: without a tradition to back him up he never could have pulled it off.

    3. If you're interested (or if anyone else is), the origin of judicial review is analyzed in great detail by Philip Hamburger in his magisterial Law and Judicial Duty (2008).

      "Marshall did not spin this out of whole cloth: without a tradition to back him up he never could have pulled it off."

      It sounds like we don't disagree as much as I thought we did. You have a "higher" (lower?) view of Marbury than I do, but we both disagree with the "One day, Marshall dreamt up judicial review" story.


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