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SYMPOSIUM ARTICLE: WHY I DO NOT TEACH MARBURY (EXCEPT TO EASTERN EUROPEANS) AND WHY YOU SHOULDN'T EITHER

Sanford Levinson*


 
* W. St. John Garwood and W. St. John Garwood Centennial Chair in Law, University of Texas Law School. This was originally written to generate discussion at the Symposium at Wake Forest University School of Law, though I also presented it to a gathering at the University of Minnesota Law School on February 24, 2003, the 200th birthday of Marbury. One result of thinking of what I have to say at symposia celebrating (or at least commemorating) the bicentennial of Marbury is to reinforce my animus against the case and, even more so, against the centrality that we assign to it in our courses (and impose on our hapless students).

SUMMARY:
... I do not generally teach Marbury v. Madison. ... I take it that everyone agrees that the substantive legal topic of Marbury - i.e., the ability of Congress to add to the original jurisdiction of the Supreme Court - is of no real significance, especially if we apply the following test: Would any serious adult ever lie awake at night worrying about what the answer to this question is outside of a very particular context where, for example, the fortunes of one's client depended on an answer? Many students look forward to taking constitutional law because of their belief that the subject actually involves important issues; it is nothing short of bizarre that most courses (and casebooks) begin with a case about a truly trivial subject (unless, of course, one embeds the case in its specific history). ...  

TEXT-1:
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I do not generally teach Marbury v. Madison. n1 The exceptions, over the past ten years, have involved teaching a five-hour constitutional law course at New York University ("NYU") and, more significantly, a two-week introduction to American constitutional law for a group of Eastern European lawyers at the Central European University in Budapest. As for the NYU course, I concluded when it was over that I would return to my common practice of deleting the case from the syllabus even were I ever again to have the opportunity to teach a five-unit course, which, of course, only reinforced my decision not to teach it in the four-hour introductory course that I teach at the University of Texas Law School. I would, therefore, be extremely surprised if I ever again teach Marbury at an American law school, outside of some specialized seminar.

I suppose I should note that I do assign Robert McCloskey's classic The American Supreme Court, n2 which includes what David Engdahl has described as an "absurd, [and] romanticized account of Marshall's opinion as a "masterwork of indirection.'" n3 I certainly  [*554]  agree that it is romanticized; I am not willing to admit to its absurdity, especially after reading Bruce Ackerman's as yet unpublished account of the Election of 1800 and its aftermath n4 or, for that matter, my colleague Scot Powe's excellent description of the politics of Marbury in his contribution to this Symposium. n5 In any event, McCloskey's book certainly provides students with enough information to make them "culturally literate," one of the functions of the "canon" in constitutional law, n6 and my conscience is clear about spending no class time on the opinion.

I will turn later to why I can imagine teaching it again to Eastern Europeans. The brunt of the remarks that follow, however, goes to why I do not teach it to American students. My purpose is not only autobiographical. It would be disingenuous to deny that I also hope to convince readers that they - or you! - should stop teaching it as well. Or, if they are unwilling to follow me down this seemingly heretical path, then at least I hope that I convince them not to teach it at the beginning of the introductory course in constitutional law. One of the oddities of the case, though, is that the only other time it makes sense to teach it, if one feels that one must, is at the very conclusion of the course.

Let me lay out my brief, then, for why Marbury should lose its pride of place in the current conception of how to teach (and structure casebooks about) American constitutional law:

I. Understanding the importance of Marbury requires a depth of historical knowledge that almost none of our students possess and that we do not have time to teach.
 
The importance of the actual case of Marbury v. Madison, as distinguished from the icon taught in our courses, obviously derives from its place in the remarkable four-year drama surrounding the election of Thomas Jefferson and his displacement of the Federalist hegemons who had viewed national leadership as simply their prerogative. n7 Those four years include, at the very least, the initial Electoral College fiasco that resulted in a tie vote between Jefferson  [*555]  and Aaron Burr; the deadlock in the House of Representatives that followed, as a result of the "one-state/one-vote" rule for breaking electoral college deadlocks; the linked threats both to deprive Jefferson of his de facto electoral victory and, should the Federalists succumb to those temptations, to call out the state militias in response; the repeal of the Federalist bill, passed by a lameduck Congress and signed by a lameduck President, establishing intermediate circuit courts of appeal (all of whose appointees turned out to be - surprise, surprise - Federalists appointed and confirmed by these very busy lameducks); the congressional cancellation of the 1802 Term of Court; and the Louisiana Purchase. n8 It is also worth mentioning the proposal and ratification of the Twelfth Amendment that, among other things, implicitly recognized the legitimacy of the party system that the Framing Generation (perhaps correctly) thought was simply another name for government by "faction" and "junto." n9

If we were to treat this political drama as the equivalent of Hamlet, then we would recognize that Marbury (and John Marshall as of February 1803) is the equivalent of Rosencrantz and Guildenstern or, perhaps, to be slightly more generous, of Polonious: The case is full of portentous and quotable maxims - such as the notion that every denial of a legal right entails the presence of an effective legal remedy - that are denied not only by the case at hand but also by much future constitutional history. As we know, though, the professional deformation of American law professors is that they are determined to make judges the stars of the constitutional drama, whether for good (e.g., Marshall and, for most of us, Earl Warren) or for ill (e.g., Roger Taney or, for many of us, William Rehnquist). Little, if any, note is taken of the picture of American constitutional development painted by Bruce Ackerman, n10 Steven Griffin, n11 Keith Whittington, n12 and others who displace the Court to  [*556]  playing the role, at most, of a supporting actor to Congress and the Executive (or, indeed, the People).

It is, I believe, only this deformation that explains why our gathering at Wake Forest is only the first of a number of - indeed, too many - symposia on Marbury and judicial review, while less attention will be given at most law schools - other than the University of Texas Law School! - to what was truly the most important constitutional event not only of 1803, but, indeed, of the entire period between constitutional ratification and the outbreak of war in 1861. I am speaking, of course, of the Louisiana Purchase. n13 Most of our students have literally no comprehension of the fact that the United States in 1789 did not extend beyond the Mississippi River and, of course, included neither Florida nor New Orleans. (Indeed, they have no comprehension of the fact - and potential [meta] constitutional significance - that neither North Carolina nor Rhode Island was part of the United States of America when George Washington was inaugurated as the first President on April 30, 1789.)

Even if we believe that the 1803 Term of Court was especially important, though, I have been persuaded by Bruce Ackerman n14 that Marbury is in fact far less significant than the case handed down only a week later, Stuart v. Laird, n15 which involved a far more significant capitulation by the Federalist majority to the determination of the Jeffersonians to escape the judicial handcuffs crafted by Adams and his associates in the last days of their discredited administration. The constitutional arguments against the repeal of the Circuit Court Act are scarcely frivolous, especially if one takes Marbury seriously with regard to the importance of maintaining the independence of the Supreme Court (and its members) by cordoning them off from unseemly additions to the kinds of cases they can hear on original jurisdiction. n16 Consider the  [*557]  implications for the desirability of accepting judicial appointment (and living to a ripe old age) of having to ride circuit, in the transportation available at the turn of the nineteenth century!

At the very least, one cannot possibly understand Marbury without placing it in the context of Laird, which rarely happens. Consider only the treatment of the case in the two casebooks edited by participants in the Wake Forest symposium. Mark Tushnet and his distinguished collaborators mention the repeal of the Circuit Court Act and then add: "A footnote: Six days after Marbury was decided, the Court upheld the repeal. Stuart v. Laird ... ." n17 Paul Brest et al. - I am one of the "et al.," I should confess - say only, "In 1802, the Republican Congress repealed the Circuit Court Act ... , thereby eliminating the positions of the so-called midnight judges ... ." n18 We do not, I am embarrassed to say, even cite Stuart v. Laird. (You can be assured that the next edition will rectify this error!) Both of us, I should note, provide more information than Dean Sullivan and the late Gerald Gunther, who offer no mention of the Circuit Court Act (or of Laird) in their highly influential casebook. n19

It is scarcely the case that our students do not need the supplementation that more extended coverage might supply. I have no reason to believe that the University of Texas Law School is unique, even among "elite" law schools, in the number of its students who arrive without knowing much about American history, especially the history of the early Republic. What this necessarily means is that very few have the slightest idea of the context within which Marbury was fought out and decided. Alas, I seriously doubt that we have the time to fill in all of the relevant blanks. Consider only the time it would take to inform students exactly why the Jeffersonians so mistrusted John Marshall. It is easy enough to point to the spectacularly patent conflict of interest presented by his having been the Secretary of State who botched the delivery of Marbury's commission; but that is only part of the story. It is certainly of some interest that at least some Federalists in 1801 had toyed with taking advantage of the (even now uncorrected) "constitutional stupidity" n20 in the way that the House of  [*558]  Representatives breaks deadlocks in the Electoral College - the aforementioned requirement that a majority of state delegations, voting on a "one-state/one-vote" basis, agree on one of the contenders - by arranging for the deadlock to continue and, therefore, to make Secretary of State John Marshall the President by operation of the Succession in Office Act. n21

Lest one view this as paranoid fantasy, I advise that one simply examine the arguments made in the aftermath of the November 2000 election. Very distinguished lawyers - all of them identified with the Republican Party - endorsed the legal ability of a rabidly partisan Florida legislature to set aside what it might have regarded as unacceptable results of a recount demonstrating that Al Gore in fact carried the Sunshine State, and instead name Republican electors pledged to Florida's favorite brother, George W. Bush. The possibility, of course, was forestalled by the actions of the Republican majority of the Supreme Court in the infamous case of Bush v. Gore n22 that shut down the recount and, therefore, left Bush with a presumptive entitlement to the Florida electoral votes. Ask yourself if the Jeffersonians had less reason to be suspicious of the Federalists (and Marshall) than Al Gore did to trust William Rehnquist and his Republican colleagues on the Court.

I am, of course, assuming that one must understand the historical context of Marbury (or of Dred Scott, n23 Lochner, n24 Korematsu, n25 or Bush v. Gore, etc.) in order to understand it. Another way of putting this is that I understand judges to be historically-located actors in a complex political process, that one can not understand a given case of any significance or, for that matter, its author/judge, without placing both the case and judge in context. It would be like trying to understand Lincoln, Churchill, or James Buchanan (who held perhaps the most spectacular resume of any American president at the time of his election), without paying attention to the circumstances they faced. Oliver Wendell Holmes once famously (or, for some, notoriously) said that much of the explanation for John Marshall's "greatness" was his luck in being in the right place at the right time. n26 Some, of course, have suggested that the same is true with regard to Holmes' exaggerated  [*559]  reputation. n27 In any event, one can understand neither Marshall nor Holmes, nor anyone else, without an awareness of the contexts within which they acted, which is precisely what we mean by history.

II. If one is going to spend class time teaching students about American history, do it about something that is truly important.
 
I take it that everyone agrees that the substantive legal topic of Marbury - i.e., the ability of Congress to add to the original jurisdiction of the Supreme Court - is of no real significance, especially if we apply the following test: Would any serious adult ever lie awake at night worrying about what the answer to this question is outside of a very particular context where, for example, the fortunes of one's client depended on an answer? Many students look forward to taking constitutional law because of their belief that the subject actually involves important issues; it is nothing short of bizarre that most courses (and casebooks) begin with a case about a truly trivial subject (unless, of course, one embeds the case in its specific history). A course on constitutional law should be, first and foremost, about issues that truly matter, whether to our students or to ourselves. Part of what we should be doing as teachers is educating our students as to the ways that issues of fundamental importance to ordinary human beings (and serious adults) are treated when they become legalized.

Not even William Marbury believed that his commission was of "fundamental importance," as evidenced by the fact that he apparently made no effort to litigate his case further. Perhaps this was because his five-year term would almost certainly have run out by the time the litigation would have been completed; perhaps, as my colleagues Scot Powe and Ernest Young, who are far more knowledgeable about such matters than I am, have suggested, it is because there was in fact no court at the time that was an attractive venue for such litigation. n28 The local federal district court had no federal question jurisdiction at the time - that would not come until 1871 - and state courts might well view themselves as without the power to issue writs of mandamus against federal officials. Or, he might have accepted the advice of Federalist colleagues that they had gotten everything they might reasonably expect (rather than wish for) in Marshall's gratuitous denunciation of Jefferson and that  [*560]  he should return to his private life, along with the victims of the Circuit Court Act who in fact lost far more (life tenure, for starters) than did Marbury, lest he tempt the Jeffersonians to do more mischief. If he gave no genuine evidence of strongly caring whether he became a justice of the peace, why should we? The answer is we do not, and neither will (or should) any of our students.

As I have already suggested, the fact that too many of our students are woefully ignorant of American history does not lead me to teach ahistorically or to give up and focus only on recent cases, however much they might prefer to spend their time poring over recent cases instead of the old cases that I tend to assign. Indeed, I spend significant time on such cases as Prigg v. Pennsylvania n29 and Dred Scott, which are hardly less complicated than Marbury or take less time to place into context. But the differences between these first two cases and Marbury should be obvious. It is difficult to think of any single issue that is more important to American constitutionalism, however defined, than chattel slavery. And, even more to the point, if we contribute to our students' ignorance of chattel slavery and how it was completely enmeshed into the operating doctrines of constitutional law, we risk consequences that are completely different from the consequences of their being equally ignorant of the importance of the Election of 1800 and its aftermath.

I focus on two consequences: Since most students, like most other Americans, have never in fact been encouraged to think of exactly what constitutes the complex social and legal phenomenon of "slavery," they (and, I am afraid, too many of their teachers) are, at the very least, inept in thinking of what might be required to overcome it. This ineptitude is reflected in the disgusting willingness of the current majority of the United States Supreme Court to continue to cite such cases as United States v. Harris n30 and the Civil Rights Cases n31 as good law, n32 paying no attention at all to the fact that these constructions of the Fourteenth Amendment - added to the Constitution, with whatever provenance, as part of the Reconstruction of a Union that had just engaged in an epic and savage war that killed two percent of the total American population because of the issue of slavery - betrayed the promise of genuinely protecting African-Americans as part of the American citizenry. I have no trouble, for example, in believing that the Civil Rights Cases are in fact worse than Dred Scott, a decision that I have  [*561]  increasingly little trouble "defending" as a thoroughly plausible analysis of the pre-1868 ("unreformed") Constitution. n33 I find it grimly fascinating that Dred Scott and, for that matter, Lochner, remain "uncitable" even as such dreadful cases as Harris and the Civil Rights Cases retain their vitality.

To understand my arguments on this point, though, requires an immersion into the history of slavery (and then of the meaning of the 1861-1865 war and its aftermath). I believe that the current majority of the Court has an inadequate grounding in American history - for all of its protestations of being "originalist" in interpretive approach - and that this at least helps to explain many of their recent decisions that are based on an ante-bellum view of constitutional ontology. We have a duty to educate our own students better than these Justices were educated at the Harvard, Stanford, and Yale law schools!

A second consequence of taking scarce time to teach Marbury and, therefore, ignoring the slave cases, is that it promotes an unjustified optimism in students that the American constitutional system - including judicial decisions - has happy endings, that it never serves as a mechanism for legitimizing evil. One of the reasons, after all, that no serious adult could possibly care about William Marbury and his commission or his ability to receive a writ of mandamus is that no serious moral issue attaches to any of this, unless, I suppose, one analogizes Marbury's claim to a strong property right in his commission and then accuses Madison of being a communist in refusing to deliver his property. (Next thing you know, he'll be seizing Marbury's farm without paying compensation! But I digress.)

I take it that the moral import of chattel slavery is obvious. I personally find it pedagogically useful to ask students, with regard to Prigg, if they would support Pennsylvania's "liberty law" even if that entailed the threat to maintenance of the Union that Story apparently thought was the case. Or would they support a contrary result in Dred Scott if it meant that secession would have come two years earlier, during the administration of James Buchanan, with the likely consequence that the South would have been left free to go in peace, whatever lamentation Buchanan might express about the dissolution of the Union? Or what should an "honorable" person do  [*562]  if asked to enforce the Fugitive Slave Law? Was Garrison perhaps correct in believing that no moral person could agree to serve as a judge, just as Antonin Scalia has recently suggested that any Justice who truly believes that the death penalty is immoral should resign rather than either become part of the machinery of death or, from Scalia's point of view, lie about what the Constitution means (i.e., falsely state that the Constitution prohibits capital punishment)? n34

Law sometimes serves as a vehicle for making the world better. That is, presumably, what keeps most of us functioning as members of a truly peculiar institution devoted to training lawyers and other legal actors. Indeed, our need to continue to believe in the goodness of law (and lawyering) makes it ever more imperative to remind ourselves - and teach our students - that law, including that branch called American constitutional law, also serves as a vehicle for rationalizing evil. Marbury teaches nothing at all about the capacity of the law to enhance either good or evil, unless, of course, one treats it completely politically and makes the case why Thomas Jefferson indeed was either a benign or malign figure in American public life. I am not opposed to doing this, but even that could take a surprising amount of time. Consider the implications of the fact, for example, that Jefferson owed his election to the disproportionate electoral power given the slave states because of the three-fifths clause. n35 It is quite thinkable that American blacks would have been far better off had the New Yorker Aaron Burr become president, though, of course, the country might not have survived, which may or may not have been a good thing if one is interested in the fate of American slaves. It turns out that "prudential" reasoning is certainly no easier, or less time consuming, than other modalities of legal analysis.

III. Why teach a case that is so shoddy in its reasoning unless one wants to discredit the enterprise of legal analysis? And even if one does want to discredit the enterprise of legal analysis, there are not better cases than Marbury to make the point?
 
I confess that one reason I stopped teaching Marbury is that I got angry, every single year, when reading Marshall's mangling of section 13 of the Judiciary Act n36 and then Article III of the  [*563]  Constitution. n37 Begin with the fact that his quotation of section 13 is, at best, limited, at worst an out-and-out attempt to deceive the reader. Marshall writes, "the act to establish the judicial courts of the United States authorizes the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States,'" n38 and he goes on, famously, to say that the grant of original jurisdiction in order to issue such writs is unconstitutional because of Article III. The actual text of section 13, of course, is considerably murkier:


 
The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. n39
 
There is, of course, no compelling reason to interpret this as authorizing the Court to exercise original jurisdiction in order to issue writs of mandamus and at least one good - indeed, overriding - reason to read it as referring only to what the Court can do in appellate cases: The norm that ambiguous statutes should not be interpreted in a way that makes them unconstitutional (assuming, of course, that one accepts that part of Marshall's argument, which, as I shall note presently, is equally dubious).

Marshall's quotation of Article III is perhaps even more misleading: ""The supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls,  [*564]  and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.'" n40 Some lawyers, of course, might believe that it is relevant that the text goes on to conclude "with such Exceptions, and under such Regulations as the Congress shall make." n41 It is, to be sure, easier to prevail in arguments if one can rewrite texts to suit one's convenience. In any event, I am confident that if a first-year student in a writing assignment quoted texts the way that Marshall quoted section 13 and Article III, we would patiently explain that this is not the way honest lawyering is really done. If a third-year student did so in a seminar paper, I doubt that we would be so charitable. And imagine writing a tenure review for an article in which a clever young assistant professor followed Marshallian norms of quotation. It is possible, of course, that criteria of intellectual honesty have changed over the years, an interesting question in its own right, but if that "justifies" Marshall, then, at the very least, we should explain to our students that they should certainly not view him as a model for present-day advocacy lest they find themselves facing disciplinary charges or losing otherwise bright prospects for academic success.

But this explains only part of my anger. Marshall's most "brilliant" interpretive move in Marbury is to pretend that the interpretations of section 13 and Article III can take place entirely without reference to each other. It is as if one tries to analyze Act V of King Lear without paying any attention to the events of Act I, so that, for example, the "Kordelia" who reappears at the end of the play is viewed as an entirely different person from the "Cordelia" whose ill-fated stubbornness sets off the tragedy that ensues. This would presumably lead to a strange hermeneutics, especially if one ends up with such radically contradictory interpretations of Act I and Act V that it makes it impossible to believe that they are truly part of the same play. Marbury is just such an example of a strange, even bizarre, hermeneutic practice.

Let me offer the following quite simple - I hope not simplistic - hermeneutic principles for someone faced with the task of having to interpret two patches of text:

First, determine whether each, in isolation, is "clear" (according to whatever may be one's favorite interpretive methodology). If both are "clear" and not in tension with one another, there is presumably no problem. If they are in tension and, especially, if they appear to contradict one another, then one must move to a meta-stage by which one offers priority rules for preferring one clear text over another. To prefer the Constitution to a statute is not a bad priority  [*565]  rule - you will note that I have not come close to criticizing Marbury for its assertion of constitutional supremacy. The problem, of course, is that no honest person could claim that both section 13 and Article III are "clear" in their meaning, so we must move on.

If one patch of text is "clear" and the other "unclear," then interpret the latter to coincide with the former. So, if anyone believes that it is section 13 that is "clear" (and means what Marshall said it meant) and Article III that is ambiguous, then, obviously, assume that the members of the vaunted First Congress, including the many Framers who were there to support the passage of the Judiciary Act, believed that the Regulations and Exceptions Clause of Article III supported the granting of original jurisdiction in order to issue writs of mandamus in cases like Marbury's. Obviously, if one believes that Marshall was correct as to the clear meaning of Article III and that it is section 13 that is unclear, then interpret section 13 to allow writs only on appellate cases properly before the Court and not, therefore, to the case actually before it. One could simply assume that the First Congress placed the mandamus clause at the conclusion of the sentence on appellate jurisdiction because it recognized that it would be constitutionally inappropriate to include it as part of original jurisdiction. I can conceive of no rationale that would say to interpret the ambiguous passage in a way that brings it into conflict with the "clear" one.

If both passages are unclear, then, obviously, interpret both of them in a way that makes them consistent with one another. Once again, I can conceive of no rationale that would say to interpret them as if they are entirely separate from one another and, therefore, run the risk (realized in Marbury) that they would contradict one another.

It is, I confess, Marshall's failure to follow these quite simple norms that makes it impossible for me to take the "internalist" accounts of Marbury with any seriousness. One might even concede that William Nelson is correct in his insistence that Marshall lived in a world that took more seriously than we do the distinction between "politics" and "law" n42 without accepting the proposition that Marbury is, at anything other than the superstructural rhetorical level, an example of this distinction. The only explanation I can give for his quite literally incredible performance in concluding that the badly written, unclear texts of section 13 and Article III contradict one another is "externalist," based on his political desire to be able: (1) to chastise Thomas Jefferson; (2) to demonstrate such judicial power as the invalidation of section 13 was thought to give the  [*566]  Court; and (3) to avoid any risk of a constitutional crisis, including impeachment, by actually requiring an action of Madison, Jefferson's proxy, that he would surely decline to perform.

Even if one is willing to take the time to develop the hermeneutic argument sketched out above, which would almost certainly take more than a single class for students new to the enterprise of legal analysis, and even if one is willing to spend the time placing Marbury within its context so as to understand why Marshall did whatever was necessary to avoid actually ordering Madison to deliver the commission, why do it? Why should students' first experience with constitutional analysis be a case that can be fully understood only if one applies a fairly vulgar version of Legal Realism demonstrating that a judge will do anything necessary to achieve his or her policy goals?

One response, of course, is that vulgar Legal Realism is correct, a view that I am sometimes drawn to, especially in the era of Bush v. Gore and the zealotry of the current Supreme Court majority with regard to protecting states against the possibility of being sued by aggrieved citizens. n43 But even the desire to make that point certainly does not justify the emphasis that Marbury gets. There are so many more important cases that could be used to demonstrate the interplay of law and politics. Of the "older" cases, my own "favorite" is the aforementioned Prigg v. Pennsylvania, in which Justice Story, who was also Dane Professor of Constitutional Law at Harvard and the author in 1833 of the most influential constitutional law treatise of his time, admitted in effect that there is no better way of defending the egregious results of that case than by pointing to the possible threat to the Union that would follow if the Court recognized fugitive slaves as even minimal rightsholders - i.e., not to be returned to slavery without the guarantee of a judicial hearing that they were in fact the fugitives they were alleged to be. n44 Thus, slaveowners have a constitutional right to engage in "self-help repossession" of their chattels. n45 Or a more recent case that certainly is the focus of much contemporary discussion, Ex parte Quirin, n46 in which the Supreme Court might well be thought to have submitted to pressures from the President of the United States to rubberstamp the summary trial and execution of German saboteurs. n47 One could go on and on citing cases that  [*567]  demonstrate the interplay of law and politics. Why anyone would prefer Marbury to any of these other cases, if one is simply interested in conveying to students a Realist mode of analysis, is beyond me. Persons with more conservative views than mine might have their own candidates, including, perhaps, Blaisdell, n48 Baker v. Carr, n49 or Casey, n50 but the point still stands. All of these, by any stretch of the imagination, are more significant than Marbury.

Even if one uses Marbury to "make the case" for judicial review, certainly an important issue, just have students read Federalist Number 78 and then explain that Hamilton's arguments were substantially accepted in an otherwise obscure 1803 case. n51 Moreover, the important arguments thereafter were about the actual occasions for, and scope of, review rather than the theoretical existence of the power in such non-existent cases as, for example, Congress declaring that one witness was enough to convict for treason.

One need not be a full-fledged Legal Realist to believe that courts are especially "political" during times of political transformation. (This is, after all, the distinction between "normal" science and what occurs during times of paradigm shifts.) So if one shares my own interest in looking at how courts respond to political "transitions" or "constitutional moments," then, of course, I would submit that the events of 1860 to 1877 are of almost infinitely more importance than those of 1800 to 1804 in terms of the continuing consequences for our present polity. Others might pick the New Deal Revolution or, indeed, the present constitutional moment itself, which calls into attention important aspects of what had heretofore been perceived as the New Deal "settlement," not to mention, in more recent days, the potential slippage toward a 1984-like version of "constitutionalism" in which the Executive Branch is able to restrict rights at will so long as it labels someone, without the need to present corroborating evidence, a "terrorist" or "enemy combatant."

If one is a "full-fledged" Realist, though, other issues move to center stage. Why, for starters, take the students' time to spend forty-two hours together "studying" constitutional analysis? Rather, simply say (something like)


 
what you learn from Marbury is that judges will do whatever  [*568]  is necessary, including mangling texts and making dubious arguments, in order to attain their policy ends (including supporting the policy ends of the political officials to whom they owe their appointments and loyalty). We will spend the rest of the semester looking at a variety of opinions making the same meta-point, concluding with Bush v. Gore, a case fully in the Marbury tradition. n52
 
I strongly suspect that many of my readers would object to this as the message of Marbury, precisely because they view themselves as taking legal analysis very seriously indeed and purport to reject the teachings of Legal Realism or Critical Legal Studies insofar as they do not.

But if that is the case, then I find it even more mysterious why they (or you) would begin with Marbury (or teach it at all), just as, perhaps, you might be surprised that someone with my views does not relish the chance to use Marbury simply to sow the seeds of a thoroughgoing hermeneutics of suspicion. So let me make an embarrassing confession: For all of my own attractions - indeed, intellectual commitment - to Legal Realism, I nonetheless believe that there are opinions of the Supreme Court (or of other constitutional interpreters to whom I also grant authority) that are genuinely inspiring and may even, at least a bit, vindicate our spending time in teaching students how to be constitutional lawyers (and, some of them, judges). It is only such a view, of course, that licenses Realists actually to express other than simple political outrage concerning decisions they despise. n53

I have discussed on other occasions the fact that Justice Jackson's opinion in the Steel Seizure Case n54 never fails to inspire me. n55 Although I have become "sophisticated" enough to see many of the problems with Jackson's opinion in West Virginia State Board of Education v. Barnette, n56 I can nonetheless understand why Charles Alan Wright selected it as his favorite case. n57 I do not agree with Paul Carrington's argument that one must "believe in" law in order  [*569]  to teach it, n58 but I do believe that it is profoundly depressing to spend one's life teaching students how to be lawyers if one believes that Marbury is the paradigm case of "analysis."

It is possible, of course, as Jack Balkin and I have argued on another occasion, n59 that we should simply accept the fact that our task is nothing more (or less) than teaching our students the rhetorical grammar of "law talk." Those of our students who go on to lead morally admirable lives will craft arguments serving good causes and clients even as we realize that others of our students will go on to use the rhetorical skills we have taught them to serve causes and clients we despise. It is like teaching English or French. No language teacher gets professionally depressed because some students will learn from us how to write effective Nazi propaganda, so long as others write more acceptable messages. So, perhaps, it is with teaching law.

Perhaps we should share these concerns with our students and tell them that their souls are at stake in becoming lawyers. Indeed, I do teach professional responsibility, and I think it is important for students to read Plato's Gorgias and its attacks on "mere" rhetoric divorced from the knowledge of justice. n60 But Marbury, as already suggested, is useless for these purposes since it has nothing on its face to do with justice, not to mention that any such inquiries get us into the most rocky of jurisprudential terrains (beginning, of course, with what we can possibly mean by "justice"). If we wish to go down that road, as I in fact do, infinitely better, for these purposes, is Marshall's opinion in The Antelope, n61 in which he carefully distinguishes between the duties of the "jurist" and the "moralist" before he upholds, in substantial measure, the rights of slave-owners. n62

IV. Teaching Marbury reinforces the notion of judicial supremacy instead of constitutional supremacy.
 
Finally, I believe that emphasizing Marbury reinforces the single most pernicious aspect of American legal education, which is to instill in hapless students the most vulgar of all notions of Legal Realism, summarized in Charles Evans Hughes' identification of  [*570]  "the Constitution" with what the "judges say it is." n63 This is unacceptable either as a normative or a descriptive view of American constitutionalism. Normatively, it turns the Constitution into the preserve of a remarkably narrow professional elite and obliterates the sense of what I have elsewhere called "constitutional protestantism" n64 and what Larry Kramer has powerfully defended as "popular constitutionalism." n65 But I also object to Hughes when I wear my hat as a political scientist: A far more plausible form of realism is the recognition that "the Constitution" is, at the very least - that is, even if one rejects "popular constitutionalism" - what a variety of institutional actors say it is, including legislators, presidents, bureaucrats, and local police.

I will happily concede that adherence to judicial - and not merely constitutional - supremacy may not be the result of intrinsic features of Marbury; a number of thoughtful analysts have convincingly described Marbury as far more modest in its claims than those asserted in, say, Cooper v. Aaron. n66 I ascribe Marbury's baleful influence more to the fact that most persons who teach the case give it pride of place by presenting it at the very beginning of their courses, just as all too many casebooks continue to begin with it, or even if they wait a relatively few pages before introducing it, refer to it as providing "the basic framework" for constitutional  [*571]  analysis. n67

As I have said on a number of previous occasions, the single most important feature of the casebook with which I am associated is that it functionally begins, following a short introductory chapter, with James Madison's speech before the 1791 Congress on why the proposed bill to charter the Bank of the United States is unconstitutional; n68 and this is followed by the memoranda sent to George Washington by the three members of his cabinet, Thomas Jefferson, Alexander Hamilton, and Edmund Randolph; n69 which is followed in turn by Marshall's opinion in McCulloch v. Maryland; n70 and then Andrew Jackson's 1832 veto of the Bank's renewal. n71 The point, obviously, is that all of these officials (not to mention participants, including John Marshall and others, in vigorous newspaper debates that followed McCulloch) n72 are full-scale constitutional interpreters. Only John Marshall took seriously the notion that "by this tribunal alone" n73 could the vital issues presented by the federal incorporation of banks be resolved. It is probably worth mentioning that Marshall does not bother to cite Marbury even as he makes this extraordinary claim!

No doubt, one could use Marbury to critique McCulloch, but why exactly bother? Will, for example, the current Supreme Court, addicted to a theory of judicial supremacy that might make even Marshall blush, be persuaded that they have misread Marbury and, therefore, that it is not the function of the judiciary to offer "ultimate interpretations" of the Constitution? Or will our students take us seriously if we say that it is McCulloch that is extravagant in its analysis and not Marbury? Will not they (properly) treat that as a truly "scholastic" debate and believe that we are tilting at windmills? Or perhaps the Court will simply start citing McCulloch instead of Marbury?

In any event, I am confident that every major issue of constitutional interpretation and institutional power is instantiated in the forty-year-long debate about the constitutionality of the Bank. Insofar as one of these issues is the role to be played by the Court itself as constitutional interpreter, McCulloch offers more than  [*572]  enough grist for whatever is one's particular mill. Marbury adds nothing of genuine importance.

V. So why teach Marbury to Eastern Europeans?
 
Perhaps I should begin my answer to this question by saying that I am not at all sure it is worth the time to teach Marbury to anyone, including Eastern Europeans. But, if I ever teach it again as part of an introductory course, I could envision teaching it to such students for one simple reason: Even though they know even less American history than do our own students, they are far more immediately familiar with the problems that face "transitional" polities. n74

One way of conceiving American history between 1775 to 1803 is as follows: 1775 to 1783 is a classic national liberation struggle, in which a variety of political movements, all of whom, following Benedict Anderson's memorable phrase, n75 are able to "imagine" themselves as Americans instead of subjects of the King who happen to live in various North American colonies, coalesce in order to drive out what are now conceived of as colonial oppressors. Political differences between Jefferson, Adams, Hamilton, and many others are put aside as they attack the common enemy of British soldiers and their "loyalist" supporters, including "traitors" like Benedict Arnold. The newly created country establishes a constitution, called the Articles of Confederation, in 1781, n76 though by 1787 there is sufficient agreement among political elites that it is no longer sufficient, especially if one is concerned to create a national government strong enough to protect the new United States against a number of potential (and likely) enemies, ranging from the British, who wish to reverse their humiliating defeat, to Indian tribes sharing space, but little else, with the United States. Obviously, there is vigorous dispute about the wisdom of this new constitution, but the "coalition of '76" continues to hold as Madison and Hamilton join forces in propagandizing for the new document and Jefferson and Adams, from their vantage points abroad, agree in its overall desirability. The first President is, of course, the leader of the national liberation movement, the "Father of our Country," and he is able to bring together Jefferson and Hamilton into his first Cabinet. Each, however, represents a distinctively different part of the political and social order. To adopt (Eastern) European terminology, Hamilton is the leader of the "nationalist" faction, dominated by the  [*573]  American equivalent of cosmopolitan business interested in becoming part of what we would today call the "global economy." Thomas Jefferson, however, is the leader of the "country" or "liberal" movement, as suspicious of globalization, including trying to attract immigration from cities abroad, as anyone in Seattle or Genoa.

By 1800, the earlier coalition between nationalists and localists, forged in the common goal of ousting the colonizing hegemon, bursts. The country's symbolic "father" has died, and his children now are at each other's throats about who should inherit the estate, including the right to claim the ultimate "title of nobility," that of "true American." The localist Jeffersonians obviously oust the nationalizers, to the utter dismay of the latter, who pledge to do whatever they can, short of armed revolution, to stop this triumph of the barbarians. That is, they view the Jeffersonian victors of 1800 precisely as (take your pick) the anti-Communists view the re-organized Communist parties that are being restored to power in a variety of Eastern European countries or as those sympathetic to at least some aspects of the old order (such as the welfare state) view Thatcherite "modernizers" who will leave the economically vulnerable with almost nothing in a rush toward conformity with IMF dictates. As it happens, the last time I taught Marbury in Budapest, the then-president of the Serbian quasi-state that had been formed in Bosnia, who was a relative moderate (i.e., less ravingly fascistic than her predecessor) had been faced with an order from a supreme court dominated by appointees of the truly ravingly fascist leader Radan Karadic. The response of the president was to ignore what the court said, just as Jefferson would (properly?) have ignored a decree from a ravingly Federalist Court determined to exercise full control over the judiciary. (Stuart v. Laird would also have come out the other way, and been equally ignored, one suspects, and Marshall threatened with impeachment.) So Marshall was faced with a real dilemma: How does he denounce the new barbarians without, at the same time, running the risk of his own exit from office via impeachment? The answer, as everyone knows, is Marbury.

So then the topic for discussion is whether Marbury in fact presents a desirable model for judicial behavior in transitional regimes. n77 Should Marshall have behaved in a more "principled"  [*574]  way, even at the risk of his own political future or the institutional survival of the Supreme Court? Should he have kept his mouth shut about the Jeffersonian usurpers and simply said, "We have no jurisdiction, end of discussion?" Or did he do the right thing by first denouncing the usurpation and then rolling over and playing dead? Eastern European lawyers (and, no doubt, other similarly-situated students) can easily understand these dilemmas and offer vivid arguments. American students, on the other hand, are blessedly existentially unaware of the dilemmas facing transitional regimes and those who would purport to lead them. n78 This lack of awareness, to be frank, makes most of their comments of little interest, which means, once more, that there is no reason to clutter up the syllabus - and valuable class time - with Marbury v. Madison.

VI. Conclusion
 
Consider the fact that very few law professors of constitutional law any longer bother to teach the subject of intergovernmental tax immunities, although, as Robert Post has recently demonstrated in his analysis of the Taft Court, n79 the topic is of fundamental interest to anyone interested in the logic of federalism and the role of federal courts. For better and, perhaps, worse, most of us have concluded that the subject is now of basically esoteric interest; more to the point, I suspect, we believe that there are simply more important things to teach our students than the intricacies of Collector v. Day n80 and Graves v. New York ex. rel. O'Keefe. n81 At least with regard to introductory courses in constitutional law, they have been found suitable candidates for what Leon Trotsky so memorably labeled the "dustbin of history." n82 Marbury should join them in well-deserved obscurity. Time is too short and other issues too important. It is time to move on.

 [*575] 

******
 
What follows are two slightly edited texts of emails received from two eminent professors of constitutional law in response to the arguments set out above:

JACK BALKIN, n83 CONCURRING AND DISSENTING:


 
I must confess that when I read the discussion about why it is worth teaching Marbury to Eastern Europeans, I find myself more and more attracted to lifting that section and placing it in our casebook so that students will understand the transitional nature of the political context in which Marbury was decided. It is hard for me to accept that one should give up teaching the case for those very reasons. In my view, one should not take its doctrinal moves seriously as legal arguments but rather instead show how they dealt with the political issue of constitutional settlement presented by the Revolution of 1800.

Perhaps we can split the difference between our views as follows: I think that one should no longer teach Marbury because of what it says but rather because of what it does politically: that is, Marbury is important to teach because of the way that it (and perhaps more importantly Stuart v. Laird) creates a constitutional settlement of a problem that had not been adequately foreseen by the founding generation. We might think of the Constitution as a series of successive settlements (or regimes), continually adding new things to the Constitution under the fiction that they were always already there. If so, then the events of 1800 need to be taught, for they are an example of a settlement that had to be made when the ink was barely dry on the pages of the Constitution. This settlement, made so soon after the Philadelphia convention, gives the lie to one of the most intellectually stultifying myths about the Constitution - the myth that the Founders had wisely foreseen all of the political problems of the future and crafted impeccable solutions whose wisdom we will discover if only we slavishly throw ourselves into the task of parsing their words and deeds ever and ever more carefully.

I must also confess that I find a certain kind of poetic justice in the fact that at the very moment when the Supreme Court  [*576]  first announces the doctrine of judicial review, at the very moment that, to our contemporary minds, symbolizes the virtues of an independent judiciary devoted to the Rule of Law, the Court does so in a political context that demonstrates the Court's lack of independence from politics. It is entirely fitting that in Marbury, the Court speaks in the language of complete judicial isolation from politics, all the while playing its role as a political actor - a pretense and a duality that the Court would display over and over again in our Nation's history. As it did at the beginning, so it has done ever since. To borrow a phrase from Freud, Marbury v. Madison, the primal scene of American judicial review, is that tawdry mixture of politics and law which dare not speak its name, and which must always be denied by judges, but which has ever shaped the practice of judicial constitutional interpretation in our country.

I find myself completely in agreement about why people who have taught Marbury in traditional ways in the past have been wasting their time. But I find your arguments provide a compelling reason for teaching it in new ways. I think this is characteristic of what literary critics would call a "classic," i.e., something that can speak in ever new ways to us no matter what our theoretical preoccupations of the moment. One way of reinterpreting your argument is that the theoretical preoccupations of constitutional law teaching have shifted or should shift, and that the classic case, Marbury v. Madison, which, in your mind, represents the old way of thinking, must be discarded. Yet, I would insist, precisely because Marbury is a classic, it can be reconfigured to serve the ends of a new way of thinking about constitutional law. That is, Marbury can be seen in our own time as an exemplar of constitutional protestantism, or popular constitutionalism, or partisan entrenchment, or a constitutional moment, or a constitutional settlement, or what have you. That flexibility, that ability to be reconceptualized and theorized in ever new forms and ways as times change, is precisely what is most characteristic of a classic text and of the function that the text serves as a classic.
 
EVAN CAMINKER, n84 DISSENTING:


 
I have always taught Marbury, and I don't think merely out of respect for the traditional canon. I use it to try to get my students to see a few things right off the bat:

 [*577]  (1) How to do textual analysis. I have the students play with both Section 13 of the Act and the OJ/AJ Allocation Clause to see the various plausible readings of both, and then introduce the point you discuss about whether as a matter of role courts ought to try to read ambiguous texts to conform rather than to conflict.

(2) Learn to question the validity of "judicial reasoning." I have found (as many of us do) that 1Ls are too ready to assume that anything a judge says must be right. This is a case ripe with opportunities to show that the judge papered over some obvious difficulties, played fast and loose with text, etc.

(3) Learn to "question the obvious." I do run through some of the pre-case history, primarily to point out that well-established norms of judicial independence were apparently either (a) not established or (b) run roughshod over just after the Framing. Not just the repeal of the Midnight Judges Act, but also the suspension of the Court's term, and the manipulation of the number of Supreme Court judges to deprive the next President of a nomination. [I do much less of this in con law than in fed courts.]

So the big question you ask is: since one can learn each of these lessons through other cases in which the substantive law or outcome mattered (whether it's Prigg or McCulloch or whatever), why teach them through Marbury? And my answer is 10% tradition (so they can speak the canon with other lawyers), and 90% PRECISELY BECAUSE students will rarely have a horse in any of Marbury's doctrinal/interpretive races! For example, I'd rather get them thinking about their ability to analyze texts differently than (better than) a Justice where their own views are likely NOT to be driven by a result-orientation, e.g., about slavery or about abortion, etc. My experience is that, if the first time they confront a problem of textual interpretation or stare decisis, etc., it is in a context that matters to them, they are too often driven to support their own intuitions on the matter at hand to be able to take a step back and think about the interpretive question in the abstract. This is why during my UCLA days Julian Eule used to exhort me to teach the dormant commerce clause before the equal protection clause, so one can run through all the issues concerning whether intent or effects matter, how do you assess intent or measure effects, etc., when students don't care about the merits (e.g., a subsidy to milk producers, etc.) before they  [*578]  confront the same issues in the equal protection context where the merits tend to drive them to want to provide certain methodological answers.

I will say I spend far less time on Marbury than I did when I first started teaching - but I'm not yet prepared to trim it to zip ...
 


FOOTNOTES:
n1. 5 U.S. (1 Cranch) 137 (1803).



n2. Robert G. McCloskey, The American Supreme Court, revised by Sanford Levinson (3d ed. 2000). I should note as well that I have taken on the responsibility of "updating" McCloskey's book, originally published in 1960, but that I have left the text that he wrote, including the chapter on Marbury, unchanged.



n3. David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279, 324 n.146 (1992).



n4. Bruce Ackerman, America on the Brink (unpublished manuscript, on file with author).



n5. L.A. Powe, Jr., The Politics of American Judicial Review: Reflections on the Marshall, Warren, and Rehnquist Courts, 38 Wake Forest L. Rev. 697 (2003).



n6. See J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 964, 975-76 (1998).



n7. See Bernard A. Weisberger, America Afire: Jefferson, Adams, and the Revolutionary Election of 1800 (2000); see also Joanne B. Freeman, The Election of 1800: A Study in the Logic of Political Change, 108 Yale L.J. 1959, 1961-68 (1999).



n8. See James M. O'Fallon, The Politics of Marbury, in Marbury v. Madison: Documents and Commentary 17 (Mark A. Graber & Michael Perhac eds., 2002); see also Lee Epstein & Jack Knight, The Strategic John Marshall (and Thomas Jefferson), in id. at 41. Indeed, the Graber-Perhac reader is an essential collection of materials for anyone interested in Marbury, its surrounding context, and the ongoing debate about its meaning.



n9. See Sanford Levinson & Ernest A. Young, Who's Afraid of the Twelfth Amendment?, 29 Fla. St. U. L. Rev. 925, 926-32 (2001).



n10. See, e.g., Bruce Ackerman, Higher Lawmaking, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 63 (Sanford Levinson ed., 1995).



n11. See Stephen M. Griffin, Constitutionalism in the United States: From Theory to Politics, in id. at 37.



n12. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (1999).



n13. See Sanford Levinson, The Louisiana Purchase as Seminal Constitutional Event, in Peter J. Kastor, The Louisiana Purchase: Emergence of an American Nation 105 (Peter J. Kastor ed., 2002).



n14. I am extremely grateful to Professor Ackerman for sharing his unpublished manuscript on the Election of 1800 and its aftermath with me. When published, it will certainly take a deserved place as the leading analysis of the election with regard to its constitutional implications. Chapter Five, Marbury v. Stuart, makes the case for the far greater significance of Stuart.



n15. 5 U.S. (1 Cranch) 299, 299, 303, 306 (1803) (upholding Act of March 8, 1802).



n16. As is vigorously argued in a forthcoming article by my colleague Louise Weinberg, Our Marbury, 89 Va. L. Rev. (forthcoming 2003) (manuscript on file with the University of Virginia Law Review). Professor Weinberg's article, incidentally, is by far the most able defense of Marbury of which I am aware, though I must pronounce myself unconvinced by her valiant attempts to defend Marshall and his decision.



n17. Geoffrey R. Stone et al., Constitutional Law 32 (3d ed. 1996).



n18. Paul Brest et al., Processes of Constitutional Decisionmaking 82 (4th ed. 2000).



n19. Dean Sullivan & Gerald Gunther, Constitutional Law (14th ed. 2001).



n20. See Sanford Levinson, Presidential Elections and Constitutional Stupidities, in William N. Eskridge, Jr. & Sanford Levinson, Constitutional Stupidities, Constitutional Tragedies 61 (1998).



n21. Ackerman discusses this possibility in Chapter Two, The Legitimacy Gap, of his manuscript America on the Brink, supra note 4.



n22. 531 U.S. 98, 100, 110-11 (2000).



n23. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).



n24. Lochner v. New York, 198 U.S. 45 (1905).



n25. Korematsu v. United States, 323 U.S. 214 (1944).



n26. Oliver Wendell Holmes, John Marshall, From the Bench, February 4, 1901, in Collected Legal Papers 266, 267-68 (1920).



n27. For a thoroughgoing critique of Holmes, see Louise Weinberg, Holmes' Failure, 96 Mich. L. Rev. 691, 691-723 (1997).



n28. This view was shared by Scot Powe and Ernest Young in conversation with the author.



n29. 41 U.S. (16 Pet.) 539 (1842).



n30. 106 U.S. 629 (1883).



n31. 109 U.S. 3 (1883).



n32. See United States v. Morrison, 529 U.S. 598, 599 (2000).



n33. See Mark A. Graber, Dred Scott and the Problem of Constitutional Evil (unpublished manuscript, on file with author), which convincingly shows that Dred Scott is defensible in terms of any of the current standard approaches to constitutional analysis. See also Mark A. Graber, Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory, 14 Const. Comment. 271, 280-82 (1997).



n34. See Antonin Scalia, God's Justice and Ours, First Things, May 2002, at 17, 17-18.



n35. See, e.g., Paul Finkelman, The Proslavery Origins of the Electoral College, 23 Cardozo L. Rev. 1145, 1146 n.5 (2002).



n36. Judiciary Act of 1789, 13, 1 Stat. 73 (1994).



n37. U.S. Const. art. III.



n38. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173 (1803).



n39. Judiciary Act of 1789, 13, 1 Stat. 73.



n40. Marbury, 5 U.S. at 174.



n41. See U.S. Const. art. III, 2.



n42. William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review (2000).



n43. See, e.g., Univ. of Ala. v. Garrett, 531 U.S. 356, 360, 373-74 (2001); Alden v. Maine, 527 U.S. 706, 730, 755-57 (1999).



n44. See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 608-09, 625-26, 673-74 (1842).



n45. See id. at 613.



n46. 317 U.S. 1 (1942).



n47. See Richard H. Fallon, Jr., Marbury and the Constitutional Mind: A Bicentennial Essay on the Wages of Doctrinal Tension, 91 Cal. L. Rev. 1, 30-31 & n.150 (2003).



N48. Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934).



n49. 369 U.S. 186 (1962); see Robert J. Pushaw, Jr., Bush v. Gore: Looking at Baker v. Carr in a Conservative Mirror, 18 Const. Comment. 359 (2001).



n50. Planned Parenthood v. Casey, 505 U.S 833 (1992).



n51. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).



n52. See Sanford Levinson, Bush v. Gore and the French Revolution: A Tentative List of Some Early Lessons, 65 Law & Contemp. Probs. 7, 20-23 (2002).



n53. For discussion of this point, see Jack M. Balkin & Sanford Levinson, Legal Historicism and Legal Academics: The Roles of Law Professors in the Wake of Bush v. Gore, 90 Geo. L.J. 173, 193-96 (2001).



n54. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-55 (1952) (Jackson, J., concurring).



n55. See Sanford Levinson, Introduction: Why Select a Favorite Case?, 74 Tex. L. Rev. 1195, 1195-2000 (1996).



n56. 319 U.S. 624, 625-42 (1943).



n57. See Charles Alan Wright, My Favorite Opinion - The Second Flag-Salute Case, 74 Tex. L. Rev. 1297, 1297 (1996).



n58. Paul D. Carrington, Of Law and the River, 34 J. Legal Educ. 222, 226-28 (1984).



n59. J.M. Balkin & Sanford Levinson, Constitutional Grammar, 72 Tex. L. Rev. 1771 (1994); see also J.M. Balkin & Sanford Levinson, Getting Serious About "Taking Legal Reasoning Seriously," 74 Chi.-Kent L. Rev. 543 (1999).



n60. Plato, Gorgias 52-54 (Terence Irwin trans., 1979).



n61. 23 U.S. (10 Wheat.) 66 (1825).



n62. Id. at 121-22, 131-32.



n63. The Oxford Dictionary of American Legal Quotations 216 (Fred R. Shapiro ed., 1993) (quoting Charles Evans Hughes, Speech Before the Elmira Chamber of Commerce (May 3, 1903), in Addresses and Papers of Charles Evans Hughes: Governor of New York 1906-1908, at 133, 139 (1908)).



n64. Sanford Levinson, Constitutional Faith 27-52 (1988).



n65. See Larry D. Kramer, Foreword: We the Court, 115 Harv. L. Rev. 4, 16-74 (2001). Kramer further develops his notion of "popular constitutionalism" in his forthcoming book, Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (forthcoming 2004) (manuscript on file with author).



n66. 358 U.S. 1 (1958). It was there that the Court cited Marbury for the "basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system." Id. at 18. As I have written elsewhere,


 
the Court's statement is really quite preposterous in its depiction of American history. If a student wrote such a statement in a final exam, it would receive a D at best, inasmuch as its validity requires that one ignore, for starters, the thought of Madison, Jefferson, Andrew Jackson, John Calhoun, Lincoln, and Franklin Roosevelt - to name only the best-known critics of overinflated claims of judicial supremacy.
 
McCloskey, supra note 2, at 241. Books articulating a quite modest notion of Marbury's meaning include: Robert Lowry Clinton, Marbury v. Madison and Judicial Review (1989); Sylvia Snowiss, Judicial Review and the Law of the Constitution (1990). See also Engdahl, supra note 3.



n67. Geoffrey R. Stone et al., Constitutional Law 23 (3d ed. 1996).



n68. See Brest et al., supra note 18, at 8.



n69. Id. at 11-16.



n70. Id. at 17-30, 44-49.



n71. Id. at 51-55. Indeed, Jackson's veto is followed by a memorandum from Walter Dellinger, then the head of the Office of Legal Counsel in the Department of Justice, to Abner Mikva, Counsel to President Clinton, on "Presidential Authority to Decline to Execute Unconstitutional Statutes." Id. at 56-58.



n72. See id. at 50-53.



n73. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819).



n74. See Sanford Levinson, Transitions, 108 Yale L.J. 2215 (1999).



n75. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (rev. ed. 1991).



n76. Articles of Confederation, I U.S.C. p. XLVII n.1 (U.S. 1781).



n77. Richard Fallon's excellent article discusses the "three faces" of Marbury, one of them being the propriety of the Court's exercising prudence in deciding what fights to engage in. See Fallon, supra note 47, at 27-33. As Fallon notes, this face is in tension with the other two faces, the Court's role in adjudicating private rights and a quite different role as being responsible for the articulation of public values.



n78. I wonder, though, if we are not currently in a "transitional" situation to a "soft" kind of police state under the aegis of the "war on terrorism." It is certainly not clear to what extent the Supreme Court will uphold what have become "traditional" civil liberties against the assault being conducted (and, even more, envisaged) by the Bush Administration and the Department of Justice.



n79. Robert Post, Federalism in the Taft Court Era: Can It Be "Revived"?, 51 Duke L.J. 1513 (2002).



n80. 78 U.S. (11 Wall.) 113, 128 (1870) (limiting ability of the national government to tax state employees), overruled by Graves v. New York, 306 U.S. 466 (1939).



n81. 306 U.S. 466, 486 (1939) (overruling Collector v. Day, 78 U.S. (11 Wall.) 113 (1870)).



n82. Greil Marcus, The Dustbin of History 4 (1995) (quoting Leon Trotsky, Address at the Second All-Russian Congress of the Soviets (Oct. 25, 1917)).



n83. E-mail from Jack Balkin, Professor of Law, Yale Law School, to Sanford Levinson (on file with author).



n84. E-mail from Evan Caminker, Professor of Law, University of Michigan Law School, to Sanford Levinson (on file with author).