A college friend of mine once said that, when she walked out of her last American-history final, she thought she would never again have to wonder what all the fuss was about Marbury v. Madison. So when I saw Marshall DeRosa’s piece “Marbury v. Madison: The Beginning of Sorrows” (Views, May), I thought I would learn more about the fuss. I was disappointed, however, that Professor DeRosa didn’t make at all clear what the case was about. Marbury v. Madison is not concerned with states’ rights, as Professor DeRosa asserts, but with a much more prestigious game: Which of the three branches of the federal government has ultimate authority in interpreting the Constitution? Justice Marshall’s tour de force was in using an apparently trivial matter involving the commission of several minor judicial officials to expand hugely and enduringly the powers of the Supreme Court.
I would also have been interested in getting Professor DeRosa’s take on the contradiction at the heart of Marshall’s decision. On the one hand, he declared the Supreme Court to be the ultimate arbiter of a law’s compliance with the Constitution. On the other, he cited that same declaration as the basis of the Court’s authority to make the declaration. Some call that circular reasoning. Others, less judiciously, call it slipping a zinger.
—Judy Frank Jablow
New York, New York
Dr. DeRosa Replies:
I failed to “make at all clear what the case was about” because I assumed readers were familiar with the facts, issues, and legal principles of the case. Moreover, the historical circumstances of the case, such as President Adams’ attempt to forestall Jeffersonian policies—i.e., states’ rights—by his judicial appointments, seemed to be more relevant in 1803 and 2003. For example, imagine if President Jefferson had appointed fellow Virginian St. George Tucker, known as the American Blackstone, to be chief justice. It’s a safe bet that American jurisprudence would have taken a somewhat less nationalistic path. Chief Justice Marshall was a hardcore nationalist hell-bent on consolidating power at the national level. The purpose of my essay was to adumbrate (once again, within the scope of a magazine article) that the long-term legacy of Marbury v. Madison was that it emboldened and empowered the Court to aid and abet nationalism at the expense of genuine federalism. With the benefit of 200 years of hindsight, can one seriously maintain that “Marbury v. Madison is not concerned with states’ rights . . . but with a much more prestigious game: Which of the three branches of the federal government has ultimate authority in interpreting the Constitution?” Which has suffered more at the hands of the U.S. Supreme Court, national legislative and executive powers or states’ rights? I rest my case!