Take any American history or political science course and you are certain to talk about the landmark Supreme Court case of Marbury v. Madison. I could probably also surmise that you will be told this is precisely the role the Constitution gave the judicial branch.

That, of course, would be wrong, but this would be one of many events the modern American educational system muffs on a regular basis.

Marbury v. Madison was not even the first case to establish so-called judicial review. That would be the case of Hylton v. United States where our good friend Alexander Hamilton argued in favor of an unconstitutional federal tax on carriages. Marbury v. Madison codified the implied power of judicial review and the decision struck down a portion of the Judiciary Act of 1801, and because of Chief Justice John Marshall’s imposing stature on the Court for over three decades, the Marbury decision has been recognized as one of the defining cases in American legal history.

If only everyone thought that way when Marshall declared that it was the job of the Supreme Court to tell the Congress and the executive “what the law is.”

Thomas Jefferson and James Madison certainly didn’t buy it, nor did other Americans writing stinging denunciations of the decision in the press. They viewed the States as the fourth leg of government and correctly reasoned that the people of the States can, and should, have the ability to check unconstitutional federal power through State action.

Marshall thought otherwise and indirectly lectured Jefferson and Madison on American government. He should not have been so bold, particularly when he went back on his Virginia Ratification Convention promise that the Supreme Court would never invalidate a State law. That came later, and was perhaps more controversial than his stance in 1803, but regardless, Americans need to understand the inconsistencies in Marshall’s Marbury decision, the fallout from that decision, and why teaching Americans that this is the way the Constitution structured Court power lacks the complexity of the originalist position. That might be too much to ask, but I go for it in Episode 157 of The Brion McClanahan Show.

Brion McClanahan
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