Document Type


Publication Date

Winter 2003

Publication Title

Claremont Review of Books


Federalist, American history, Marbury v. Madison, judicial review, Thomas Jefferson, Supreme Court


Though normally not friends of original intent or legal tradition, today's judicial "activists" like to trace their lineage back to the (purported) original judicial activist, to the great Chief Justice who was the first to persuade the Supreme Court to strike down a law of Congress.

According to this conceit, which is now the standard interpretation enshrined in countless histories and hornbooks, Marbury v. Madison was the breakthrough that demonstrated how truly powerful the judiciary could be. In this famous case, decided 200 years ago, Marshall supposedly showed that the Constitution is an elastic document or at least could be turned into one. Therefore, the "living Constitution" is nothing new: John Marshall's own example and authority prove that judicial activisim is as American as apple pie.

Strangely, many conservatives accept this strained interpretation, though for different reasons. They agree that judicial activism is an exaggerated form of judicial review and that the problem is endemic to the Constitution. Reluctantly, they conclude that judicial review is an undemocratic flaw in the constitutional order that needs to be excised or constrained, perhaps by a constitutional amendment that would empower Congress to overrule the Court.

Yet both liberals and conservatives are mistaken, because the prevailing account of Marbury on which they rely is itself wrong.

This is what happened.