Marbury v.

Madison: How John Marshall Changed

History by Misquoting the Constitution1
Winfield H. Rose, Murray State University

Isingle
t goes without saying that Marbury v.
Madison (5 U.S. 137 [1803]) is the
most important decision of the
in which a state shall be a party. In all
other cases, the supreme court shall
have appellate jurisdiction.”
was not amicable and the judiciary was
in the middle of the controversy. The
Jeffersonian Republicans had won ma-
United States Supreme Court and, with In the first sentence, the Chief Justice jorities in both houses of Congress and
its bicentennial at hand, that conclusion reversed the order of the clauses and it was clear John Adams would not re-
will, no doubt, be stated and restated added an “a” before the word “party.” main president. Who would become
many times. Those of us who teach In the second sentence, he dropped president, however, was not clear due to
American government and politics have “the” and “before mentioned” and, in the tie between Thomas Jefferson and
explained its significance in establishing what is the most significant change, put Aaron Burr in the Electoral College.
judicial review countless times to count- a period after “jurisdiction” and entirely The election was decided by the House
less students across the years, and we deleted the phrase “both as to Law and of Representatives on the 36th ballot,
thought we knew what we were talking Fact, with such Exceptions, and under on February 17, 1801, in favor of Jef-
about. Yet, how long has it been since such Regulations, as the Congress shall ferson, and Jefferson was inaugurated
we actually sat down and read the opin- make.” 15 days later, on March 4.
ion? How long has it been since we This raises two questions: (1) Is this The out-going Federalists were busy
went beyond the conventional textbook important? Does it matter? And, if it is during this time. President Adams
wisdom and read it afresh? After having important, (2) is it recognized as such? nominated his secretary of state, John
taught American government and poli- I believe the answers to these questions Marshall, for chief justice on January
tics off and on for 30 years, I recently are “yes” and “no,” but, before proceed- 20 and Marshall was confirmed by the
sat down and read Chief Justice John ing further, we need to review the back- lame-duck Senate on February 4. He
Marshall’s masterpiece from start to fin- ground of the case. continued to serve as secretary of state
ish for the first time since I was in until Adams left office on March 4 but
graduate school and, in doing so, I did not accept the salary of that office.
made an interesting discovery: in writ- Background Also during February, the Federalists
ing his opinion, Marshall seriously mis- passed what is known as the Judiciary
quoted the relevant part of Article III of Pursuant to Article III, the Judiciary Act of 1801. This legislation created
the Constitution, and I believe he did so Act of 1789 (1 Stat. 73 [1789]) deter- 16 new circuit courts so that Supreme
intentionally, to serve his purpose. Arti- mined that the Supreme Court would Court justices no longer had to ride
cle III, Section 2, paragraph 2 says: have six justices and created a system circuit. President Adams quickly nomi-
of three circuit and 13 district courts. nated and the Senate confirmed the
In all Cases affecting Ambassadors, Each of the 13 states constituted a dis- new judges, all Federalists, in what
other public Ministers and Consuls, and trict and each district court had one came to be known as the “midnight
those in which a State shall be Party, judge. The circuits, called the eastern, appointments” process. The act also
the Supreme Court shall have original middle, and southern, grouped various provided that when the next vacancy
Jurisdiction. In all the other cases be- states together and their benches con- occurred on the Supreme Court, the
fore mentioned, the supreme Court shall sisted of two justices of the Supreme number of justices would be reduced
have appellate Jurisdiction, both as to Court and the district judge of the state by one, thereby postponing the new
Law and Fact, with such Exceptions, where the court was sitting. The justices president’s first nomination to the high
and under such Regulations as the Con- of the Supreme Court were thus given court (Morison 1965, 358–363; Smelser
gress shall make. the odious task of “riding circuit.” 1968, 64–72).
In Marbury v. Madison, however, In addition, the act defined, or at- The Federalists had done their best to
Marshall purports to quote the above tempted to define, the respective juris- “stack” the judicial branch in their
passage as follows: dictions of the three levels of courts. In favor, having lost the executive and leg-
so doing, it is clear Congress attempted islative branches, and, in what Corwin
In the distribution of this [the judicial] to follow Article III, Section 2, para- called “Jefferson’s war on the judiciary”
power it is declared that “the supreme graph 2 (quoted above). Section 13 (1919, ch. 3), an infuriated President
court shall have original jurisdiction, in dealt with the jurisdiction of the Jefferson set out to undo their handi-
all cases affecting ambassadors, other Supreme Court and concluded by au- work. First, he persuaded Congress to
public ministers and consuls, and those thorizing it to issue writs of mandamus repeal the Judiciary Act of 1801; this
“in cases warranted by the principles was accomplished by the spring of
and usages of law, to any courts ap- 1802. All the new circuit judges thus
pointed, or persons holding office, under lost their jobs in spite of the provision
Winfield H. Rose received his Ph.D. in po-
the authority of the United States. . . .”2 in Article III, Section 1, that “Judges,
litical science from Duke University and has
been a professor of political science at Mur- By 1800, our political party system both of the supreme and inferior
ray State University since 1983. He teaches had developed to the point that the Courts, shall hold their offices during
political theory, public administration, and elections in November of that year good Behaviour.”3 The size of the
American government. He can be reached at brought about the first transfer of power Supreme Court was increased by one
[Link]@[Link]. from one party to another. That transfer and, in an attempt to delay if not

PSOnline [Link] 209

 says that “John Marshall was temporar-
ily shaken by the crisis and suspense.
Some think that if Chase had been
convicted, John Marshall would also
have been removed” (70).
Finally, as if the political environ-
ment were not heated enough, there
was deep personal animosity between
Jefferson and Marshall even though
they were distant cousins from Vir-
ginia. Marshall had served under Wash-
ington in the Continental Army during
the Revolutionary War and endured the
bitter winter at Valley Forge (Bev-
eridge 1916, 119) while Jefferson
served as governor of Virginia 1779
to1781. Marshall, no doubt, was aware
that the Virginia House of Delegates
had voted to investigate Jefferson’s
leadership of the state during the
British invasion (Peterson 1970,
236–239).4 To this Morison adds, “To-
ward Marshall his kinsman Jefferson
entertained an implacable hatred be-
cause he had shown him up and bro-
ken the sentimental French bubble in
John Marshall, U.S. Supreme Court Chief Justice 1801–1835. Illustration: Library of Congress.
the X Y Z affair” (362).5 Needless to
say, Jefferson would not have nomi-
nated Marshall for chief justice and re-
thwart consideration of the repeal of the with ease because Pickering, a Federal- sented losing the opportunity of mak-
Judiciary Act of 1801, the next term of ist, also was mentally ill (Smelser ing the nomination. The animosity
the Supreme Court was set for 1968, 68; Van Tassel and Finkelman between them continued beyond Mar-
February, 1803, meaning it could not 1999, 91–92). bury v. Madison and reached its zenith
meet until then (Morison 1965; Smelser The next “victim” was Supreme during Aaron Burr’s trial for treason in
1968). Court Associate Justice Samuel Chase. 1807 (Smelser 1968, 119–123).
Another weapon in the conflict be- Chase was outspoken and partisan, and Thus, when Chief Justice John Mar-
tween the Federalists and the Republi- likely had incited President Jefferson shall opened the February 1803 term of
cans was the use of impeachment to by charging that, under his presidency, the Supreme Court with Marbury v.
remove Federalist judges (Morison “our republican constitution will sink Madison on its docket, he had to nego-
1965; Smelser 1968; Van Tassel and into a mobocracy, the worst of all pos- tiate a highly charged, highly partisan
Finkelman 1999, chs. 11–12). The con- sible governments” (Morison 1965, political minefield. Jefferson and
gressional elections of 1802 had been 363). Chase was impeached by the friends were playing for keeps. It was
catastrophic for the Federalists; in the House on the same day the Senate re- a dangerous time to be a Federalist
new House the party division was 102 moved Pickering but when the Senate judge—much less the Federalist Chief
Republicans to 39 Federalists and in tried him it failed to convict and re- Justice.
the new Senate move him
it was 25 to (Smelser 1968,
nine (Smelser Marshall had the nerve, 68–69; Van
The Case
1968, 74). The
Republicans ob- the courage, to mis- Tassel and
Finkelman,
William Marbury was one of 42 jus-
tices of the peace for the District of
viously had the
votes to re-
quote the Constitution 101–103). Of
this the noted
Columbia whose nomination had been
part of the “midnight appointments”
move any
judge they
for his own purpose, historian
Samuel Eliot
process. They had been nominated by
out-going President John Adams and
wanted. Six and he had the skill to Morison says, confirmed by the lame-duck Senate but
days before “Had Chase Secretary of State John Marshall had
Marbury v. do it in such a way been found not delivered all their commissions.
Madison was guilty on the When the undelivered commissions
decided on that it has been largely flimsy evidence were found after Jefferson’s inaugura-
February 24,
1803, the
unrecognized for 200 presented, there
is good reason
tion, the new president ordered his new
secretary of state, James Madison, not
House im-
peached Dis-
years. to believe that
the entire
to deliver them, thereby depriving Mar-
bury and colleagues of their positions.
trict Judge John Supreme Court Marbury petitioned the Supreme Court
Pickering of New Hampshire; the Sen- would have been impeached and to issue a writ of mandamus to Madi-
ate convicted and removed him in purged” (363). And, speaking of son compelling the delivery of his
March, 1804. This was accomplished Chase’s acquittal, Marshall Smelser commission.

210 PS April 2003

 The case, therefore, hinged on the appellate jurisdiction, both as to Law has come to be known, he dismissed
Court’s power to issue a writ of man- and Fact” instead of “In all the other its relevance out of hand.6 Thus, my
damus to Secretary of State Madison Cases before mentioned, the supreme basic contention is that Marshall inten-
under its original jurisdiction. Notwith- Court shall have appellate jurisdiction, tionally misconstrued Article III, Sec-
standing that Marshall should have re- both as to Law and Fact, with such Ex- tion 2 in three closely-related ways.
cused himself, he knew that if he issued ceptions, and under such Regulations, as The first was when he said Marbury
the writ Jefferson would, at a minimum, the Congress had gone to the
direct Madison not to comply, and shall make.” In wrong court,
thereby embarrass him and the Court. other words, Marshall’s arguments that is, the
This, of course, he wished to avoid. the Constitution Supreme Court
As we have seen, the power to issue gave Congress were clever contrivances could hear the
writs of mandamus had been given the
Supreme Court by Congress in Section
the power to
adjust the origi- to extricate himself and case only under
appellate rather
13 of the Judiciary Act of 1789. Mar-
shall agreed that Marbury had been
nal and appel-
late jurisdic-
the Court from the than original ju-
risdiction; this
wronged and that he had a right to a
remedy but he also said Marbury had
tions of the
Supreme Court
political predicament is how he
solved his prob-
gone to the wrong court to obtain it via the excep- in which they found lem with Jeffer-
because Congress had violated Article tions and regu- son. The second
III in Section 13 when it gave the lations clause themselves and to was when he
mandamus power to the Supreme Court
under its original jurisdiction. Hence,
and Marshall
removed it be- establish the Supreme said the
Supreme Court
Section 13, in relevant part, was un-
constitutional and null and void, and
cause doing so
enabled him to
Court as a truly equal could not issue
a writ of man-
judicial review was thereby established.
And, at the same time, Marshall very
avoid a con-
frontation with
third branch of govern- damus under its
original juris-
adroitly avoided a dangerous confronta- Jefferson, on ment diction, mean-
tion with President Jefferson with the one hand, ing that the rel-
whom he obviously was not on good and to establish evant part of
terms. judicial review, his greatest legacy, on Section 13 of the Judiciary Act of
Marshall ruled that the Supreme the other. The misquotation is the single 1789 violated Article III; this is how
Court could not issue a writ of man- most important part of the opinion in he established judicial review. Finally,
damus under its original jurisdiction, that it is the cornerstone upon which the third was when he simply dropped
saying, “To enable this court . . . to everything else rests. If we read Article the phrase “both as to Law and Fact,
issue a mandamus, it must be shown to III, Section 2, paragraph 2, as correctly with such Exceptions, and under such
be an exercise of appellate jurisdiction written, Marshall is wrong; if we read it Regulations, as the Congress shall
. . .” Yet, as we have seen, Article III, as he misquoted it, he is right. make” from Article III; this had to be
Section 2, paragraph 2, reads as fol- In a later reference to this slight of done in order to accomplish his first
lows: “In all Cases affecting Ambas- hand, Marshall says, “The subsequent two objectives. Whatever validity may
sadors, other public Ministers and Con- part of the section is mere surplussage inhere in other parts of the opinion,
suls, and those in which a State shall . . . entirely without meaning . . .” Yet, the plain and simple truth is, in my
be Party, the supreme Court shall have in one of the most famous passages in view, that all of Section 13 of the Ju-
original jurisdiction.” It was reasonable the Marbury opinion, he also says, “It diciary Act of 1789 was a completely
for Marbury to conclude that he was a cannot be presumed that any clause in lawful exercise of congressional author-
public official who had been nominated the constitution is intended to be with- ity. Marshall’s arguments to the con-
by President Adams and confirmed by out effect . . .” He was right the second trary were clever contrivances to extri-
the Senate but whose office was being time, not the first. The “subsequent cate himself and the Court from the
unlawfully withheld from him. It also part” most definitely is not “mere sur- political predicament in which they
was reasonable for him to take his com- plussage without meaning” because the found themselves, on the one hand,
plaint to the Supreme Court under its framers put it there to allow Congress and to establish the (Federalist-domi-
original jurisdiction, pursuant to Article to adjust the jurisdictions of the nated and Marshall-controlled) Supreme
III, Section 2, paragraph 2 as quoted Supreme Court as it saw fit. Thus, for Court as a truly equal third branch of
above. That seemingly correct but polit- Marshall to dismiss their words as government, on the other. That he was
ically risky action required Marshall’s “mere surplussage” was incorrect and successful on both counts is beyond
considerable ingenuity to unravel. He improper. And, when he said, “If Con- dispute.
was up to the task. gress remains at liberty to give this
Marshall accomplished his objective court appellate jurisdiction, where the
by misquoting Article III, Section 2, constitution has declared it shall be
Recognition
paragraph 2, as shown at the beginning original; and original jurisdiction where
of this paper, the most significant part the constitution has declared it to be I am not the first to contend that
of which was the deletion of the phrase appellate; the distribution of jurisdic- Marshall’s reasoning was flawed. The
“with such Exceptions, and under such tion, made in the constitution, is form well-known constitutional scholar Ed-
Regulations, as the Congress shall without substance,” he simply was ward S. Corwin wrote, “In short there
make” from the second sentence. Thus, wrong. was no valid occasion in Marbury v.
that sentence, in effect, was made to While it is true that, later on in the Madison for any inquiry by the court
read “In all the other Cases before men- opinion, Marshall made a passing ref- into its prerogative in relation to acts of
tioned, the supreme Court shall have erence to the exceptions clause, as it Congress. . . . To speak quite frankly,

PSOnline [Link] 211

this decision bears many of the ear-
marks of a deliberate partisan coup”
(1914, 542–543).7
Referring to Article III, Section 2,
clause two of the Constitution, William
W. Van Alstyne (1969, 31–32) says,
The clause readily supports a meaning-
ful interpretation that the Court’s origi-
nal jurisdiction may not be reduced by
Congress, but that it may be supple-
mented by adding to it original jurisdic-
tion over some cases which would
other-wise fall only within its appellate
jurisdiction. Such a reading makes sense
and makes no part of the clause sur-
plusage. Thus it might be supposed that
certain kinds of cases – those affecting
Ambassadors, other public Ministers and
Consuls, and those in which a state
shall be a Party . . . constitute an irre-
ducible minimum of Supreme Court
original jurisdiction . . . [and that] Con-
gress may except certain cases otherwise
subject only to the Court’s appellate ju-
risdiction by adding them to the Court’s
original jurisdiction, which, it might be
added, is precisely what Congress did in
Section 13 of the Judiciary Act.
William W. Crosskey (1980, 1039–
1041) likewise concludes,
. . . the fact that section 13 of the first
Judiciary Act could not have been un-
constitutional in any very obvious way
seems certain; and when the ground the
Court put forward in 1803 to justify its
decision is scrutinized, it becomes per- Stacking the Bench. On his appointment of John Marshall to the Supreme Court, President John
fectly obvious that section 13 was not Adams said, “My gift of John Marshall to the people of the United States was the proudest act of my
unconstitutional at all. . . . What, then, life.” Illustration: Library of Congress.
was the Supreme Court doing in Mar-
bury v. Madison? . . . the decision must in cases where the Constitution pro- book about it. Yet, of those I have read,
have been motivated on a political vided for original.8 only two said anything about Marshall
basis only. misquoting Article III. In addition, I have
Finally, Leonard W. Levy (1988, 81) checked with colleagues, practicing attor-
After reviewing Marbury v. Madison argues that, neys, and former students now in law
on Article III and Section 13, David P. school, and Marshall’s single-handed
Currie (1985, 68–69) says, . . . section 13, contrary to Marshall,
did not add to the Court’s original juris- amending of Article III was news to
This reasoning is far from obvious. It diction. . . . Marshall grossly misinter- them all. I also examined works by
would not have been idle for the preted the statute and Article III, as well Charles Warren (1926 and 1930), Robert
Framers to make a provisional distribu- as the nature of the writ, in order to L. Clinton (1989), Lee Epstein and
tion of the Court’s jurisdiction pending find that the statute conflicted with Arti- Thomas Walker (2001), and William E.
congressional revision; that is precisely cle III so that he could avoid issuing the Nelson (2000) with the same result.
what they did with respect to the ap- writ without appearing to buckle before What I, however, did find was the
pellate jurisdiction by empowering political enemies. following. Morison wrote intriguingly
Congress to make “exceptions.” Indeed, that “By a legal twist, which the Jeffer-
the exceptions clause itself arguably While I concur with the powerful ar- sonians considered mere chicanery, the
authorized the grant of original man- guments presented by these scholars, I Chief Justice managed to deliver an
damus jurisdiction: Congress had made believe they do not go far enough. I opinion which has become classic . . .”
an “exception” to the appellate jurisdic- submit that the scholarship on Marbury (363)9 but he did not explain what the
tion by providing original jurisdiction v. Madison, as extensive as it is, has “twist” was. Van Alstyne quoted the
instead, and it had made an “excep- failed to recognize the critical impor- missing clause but did not note that
tion” to the otherwise applicable con- tance of Marshall’s misquotation of Marshall omitted it (32). Crosskey
stitutional division. . . . Marshall him- Article III. quoted Article III, Section 2, paragraph
self was to reject the implications of As the most significant court case in 2 (not entirely correctly) and italicized
the Marbury reasoning in Cohens v. American history, Marbury v. Madison is “with such exceptions . . . as the Con-
Virginia, where he declared that Con- likely also the most analyzed and I can- gress shall make” but made no mention
gress could grant appellate jurisdiction not claim to have read every article or of Marshall’s omission (1041). Currie

212 PS April 2003

also quoted the missing clause but said what it is if Marshall had either issued date a federal statute was next exercised
nothing about Marshall leaving it out the writ of mandamus to Madison or dis- by the Court. Had the Marshall Court
(68). In his chapter on Marbury v. missed the case for want of jurisdiction, not taken its stand, more than sixty
Madison, Clinton devoted a short sec- his most obvious other two options. years would have passed without any
tion to the exceptions clause but, again, Thirdly, if, as I claim, the misquotation question arising as to the omnipotence
did not note that Marshall left it out is critical to a complete understanding of of Congress. After so long a period of
(1991, 94–97). the opinion, it seems clear that academia judicial acquiescence in Congressional
Corwin, however, in his now-obscure needs to modify the way it teaches the supremacy, it is probable that the oppo-
1914 article, did write that “ . . . the Marbury case. sition then would have been futile.12
words thus pointed to are followed by Fourthly, when scholars undertake a
the words—which the Chief Justice fails critical examination of a case or issue,
to quote—‘with such exceptions . . . as Explanation it is important that it be not only signif-
the Congress shall make’ ” (540).10 But How might we explain why Mar- icant but challenging, not trivial and
he made no use of his discovery and, in shall’s misquotation has been routinely easy. But, as we have seen, Marbury v.
a later work, went so far as to say, overlooked? I offer the following com- Madison is not complicated at all. Mar-
“ . . . the case . . . marches to its conclu- plementary possibilities. Levy says that, shall arrived at his desired result by
sion with all the precision of a demon- “The partisan coup by which Marshall simply misquoting the Constitution.
stration from Euclid” and “There is not denounced the executive branch, not the Finally, when scholars read a court
a false step in Marshall’s argument” grand declaration of the doctrine of ju- opinion by the chief justice of the
(1919, 67, 70). Levy also noted that dicial review for which the case is re- United States, they instinctively assume
Marshall omitted the exceptions clause membered, was the focus of contempo- that quotes are correct. This is such a
and like Corwin and all the others, he rary excitement” (83). According to this part of our ethic that to question other-
did not mention the other liberties Mar- view, it was the politics of the opinion, wise is unthinkable. Today, scholars and
shall took with Article III (81–82). not its scholarship, which attracted at- students can get into a lot of trouble
While his forceful and rather acerbic tention, and this is, no doubt, correct. over this assumption, but it was not un-
analysis makes many points diametri- Smelser (68) states, thinkable for Marshall and he did not
cally opposed to Corwin’s stated get into a lot of trouble over it. He was
above,11 he did not declare the misquot- The Republican press boiled over not in my class.
ing of Article III, section 2, paragraph 2 briefly, but other pressing problems soon
to be the key to unlocking the case as I distracted public attention from the case.
have done here. In depriving poor Marbury of his
It seems, then, that Marshall’s mis- sinecure and status, the administration Conclusion
quoting Article III is routinely unrecog- had won a battle, but Marshall, while I have used the term “intentionally”
nized or, at best, unutilized. Now that pulling off a partisan coup, had also here with regret. It is not my purpose to
we know this, what do we do with it? written a bare, didactic argument which, diminish Marshall’s place in history. This
What difference does it make? Judicial in generations to come, was to establish was the first important case in the first
review is firmly established; it is not the Supreme Court, and the federal judi- term of his long career as Chief Justice,
going to be undone, and rightfully so. ciary as a whole, in the position Mar- and he obviously grew intellectually and
Perhaps the most important contribu- shall thought it should occupy . . . judicially as the years passed. But, in my
tion this discovery makes to the ad- Thus, new issues came to the fore, view, the changes he made in Article III,
vancement of knowledge is to make us rather quickly, and displaced Marbury Section 2, paragraph 2 are too extensive
even more aware of what a political ge- v. Madison from public attention. Ex- and their implications are too important
nius John Marshall was. He knew what amples would be the impeachments of for them to have been oversights or
his problem was and he solved it. He Pickering and Chase, the Napoleonic careless mistakes. Marshall was too intel-
had the nerve, the courage, to misquote regime in France, the Louisiana Pur- ligent and too diligent for that.
the Constitution for his own purpose, chase, the Barbary pirates, and so forth. Moreover, he quoted the Constitution
and he had the skill to do it in such a Another, and more important, factor is five other times in the Marbury opinion
way that it has been largely unrecog- that the establishment of judicial review and in four of those he did so totally
nized for 200 years. In doing so, he was more important than how it was correctly; in the fifth there was a minor
traded away the microscopic power of done. Generally sympathetic to the con- variation that did not change the mean-
issuing writs of mandamus in original cept, analysts have focused on Mar- ing. He also quoted Blackstone correctly
jurisdiction cases for the huge power of shall’s theoretical defense of judicial re- four times. It, therefore, seems obvious
judicial review, while avoiding a consti- view, on the pros and cons of judicial to me that Marshall had his sources in
tutional showdown with Jefferson, pre- review, on its consequences, and on how front of him when he wrote and, conse-
serving the prestige of the Supreme it has been manifested through the years. quently, I must conclude that he knew
Court, and avoiding impeachment. In- That is what was seen as important. As what he was doing. As Corwin
deed, this was a coup d’ etat! Bernard Schwartz (1993, 41) put it, (1941,vii) put it,
Another contribution we may derive is
how very political this entire affair was. Marbury v. Madison is the great case in However welcome or unwelcome the
It was not an exercise in lofty jurispru- American constitutional law because it truth, it is ever the responsibility of cen-
dence; it was an exercise in pure politics, was the first case to establish the ters of learning to discover and commu-
both institutional and personal. That be- Supreme Court’s power to review con- nicate it. Upon no other basis may
ing the case, perhaps we need to spend stitutionality. Indeed, had Marshall not scholars, as scholars, lay claim to the
some time contemplating the implications confirmed review power at the outset . . deference of their fellow men, and there
of what Marshall did, for good and ill, . it is entirely possible it would never is no way by which the claim to such
given the likelihood that our history have been insisted upon, for it was not deference vanishes so quickly as through
would have been very different from until 1857 that the authority to invali- failure to meet this responsibility.

PSOnline [Link] 213

Notes
1. I wish to thank the anonymous PS re- tion in all other cases, with such exceptions as and Judicial Review, University Press of
viewers as well as my son Scott (J.D., Univer- congress might make, is no restriction; unless Kansas, 1991, 94–97.
sity of Virginia, 2000) for their helpful com- the words be deemed exclusive of original ju- 9. Emphasis added.
ments and suggestions. risdiction.” Certainly this is not a restriction; it 10. Emphasis added. This quote may be found
2. A writ of mandamus is an order from a is the removal of a restriction. on page 5 of the reprinted book in note 7
court to a public official to perform an act re- 7. An almost but not entirely identical ver- above.
quired by his position. sion of this article appeared as chapter 1 in 11. To give only two examples, on page 75
3. This action was sustained by the Supreme Corwin’s book The Doctrine of Judicial Re- Levy calls Marbury v. Madison “one of the
Court a few days after the Marbury decision in view: its Legal and Historical Basis, originally worst opinions ever delivered by the Supreme
Stuart v. Laird, 5 U.S. 299 (1803). published by Princeton University Press in Court.” And, on page 88 he states that, “To the
4. Jefferson regarded this as a vote of cen- 1914 and reprinted by Peter Smith of Glouces- extent that national judicial review rests on
sure but the assembly later rescinded it and ter, MA in 1963. This quote is on page 9 in Marbury, it rests on rubbish . . .” This is not to
thanked him for his service; yet it was the low the reprint. say that his book is not worth reading; quite
point of his public life. 8. Cohens v. Virginia may be found at 19 the contrary, it is well worth reading.
5. The X Y Z affair occurred in 1797–1798. U.S. 392. Clinton rejects this line of reasoning 12. The 1857 case was Dred Scott v. Sand-
6. “That they should have appellate jurisdic- and supports Marshall in Marbury v. Madison ford, 60 U.S. 393.

References
Beveridge, Albert J. 1916. The Life of John States. Chicago: University of Chicago Press. Schwartz, Bernard. 1993. A History of the
Marshall. vol. I. New York: Houghton Currie, David P. 1985. The Constitution in the Supreme Court. New York: Oxford Univer-
Mifflin. Supreme Court. Chicago: University of sity Press.
Clinton, Robert L. 1989. Marbury v. Madison Chicago Press. Smelser, Marshall. 1968. The Democratic Re-
and Judicial Review. Lawrence: University Epstein, Lee, and Thomas G. Walker. 2001. public 1801–1815. New York: Harper &
Press of Kansas. Constitutional Law for a Changing America. Row.
Corwin, Edward S. 1914. “Marbury v. Madison 4th ed. Washington, DC: Congressional Van Alstyne, William W. 1969. “A Critical
and the Doctrine of Judicial Review.” Quarterly Press. Guide to Marbury v. Madison.” Duke Law
Michigan Law Review. 12:538–572. Levy, Leonard W. 1988. Original Intent and the Journal. 1969: 1–47.
. 1919. John Marshall and the Constitu- Framers’ Constitution. Chicago: Ivan R. Van Tassel, Emily F., and Paul Finkelman.
tion. New Haven: Yale University Press. Dee. Originally published by Macmillan. 1999. Impeachable Offenses: A Documen-
. 1941. Constitutional Revolution, Ltd. Morison, Samuel E. 1965. The Oxford History tary History from 1787 to the Present.
Claremont: Claremont Colleges. of the American People. New York: Oxford Washington, DC: Congressional Quarterly,
. 1963. The Doctrine of Judicial Review: University Press. Inc.
Its Legal and Historical Basis. Gloucester, Nelson, William E. 2000. Marbury v. Madison: Warren, Charles. 1926. The Supreme Court in
MA: Peter Smith (reprint edition). Origi- The Origins and Legacy of Judicial Review. United States History. Boston: Little, Brown
nally published in 1914 by Princeton Uni- Lawrence: University Press of Kansas. and Company.
versity Press. Peterson, Merrill D. 1970. Thomas Jefferson . 1930. Congress, the Constitution, and
Crosskey, William W. 1980. Politics and the and the New Nation: A Biography. New the Supreme Court. Boston: Little, Brown
Constitution in the History of the United York: Oxford University Press. and Company.

214 PS April 2003