Our Marbury

Abstract

This book-length paper definitively rescues Marbury v. Madison from its technical critics. A reassessment of the familiar historical narrative sets the stage for its responses to criticism of Chief Justice Marshall's statutory construction, developed in a series of arguments, some of which have not previously been broached. The heart of the article is its demolition of the current fashionable critique of Marshall's constitutional interpretation. The paper helpfully explains the structure of this critique. It shows that not a single one of the "precedents" cited as contrary to Marbury holds water. It then goes on to establish that the critics' preferred reading of the Constitution has no antecedents in history or law. It reveals that this reading would in fact subvert the Constitution. While the paper refrains from joining the old debate about judicial review, the paper includes novel commentary on the judicial review passages of the case.

JEL Classification: K00