The Rhetorical Uses of Marbury V. Madison: The Emergence of a 'Great Case'

Abstract

Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury was not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review and nineteenth-century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of judicial review became far more controversial. Proponents of judicial review seized upon the Marbury decision to legitimize their claims for an expansive conception of the doctrine - particularly after the Court engaged in an extraordinarily controversial exercise of judicial review in 1895 in the Pollock decisions declaring the newly enacted federal income tax unconstitutional. In the process, Marbury became, for the first time, a "great case" - as measured by its treatment in judicial opinions, legal treatises, and casebooks - a moniker that would have been ill applied to the decision for most of the nineteenth century. Marbury's significance today cannot be attributed to the pathbreaking character of the decision. Rather, Marbury became "great" because proponents of an expansive doctrine of judicial review have needed it to assume greatness.