On Upholding the Constitution, John Marshall-Style

This month we hail the release of a new book, The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, written by Cliff Sloan and David McKean and published by PublicAffairs.

The book tells the story behind the momentous Supreme Court ruling in Marbury v. Madison, in which Chief Justice John Marshall thundered, “It is emphatically the province and duty of the judicial department to say what the law is,” thereby establishing the doctrine of judicial review of the Constitutionality of laws passed by Congress. In an article in this week’s edition of Newsweek, Sloan and McKean note the late Chief Justice William Rehnquist has called Marbury “the most significant single contribution the United States has made to the art of government.”

Perhaps our current Chief Justice — who recently suggested that only former federal judges should be appointed to the Supreme Court — should take a hint from Justice Rehnquist (for whom Roberts clerked) and recollect that Chief Justice Marshall — like other great justices including John Marshall Harlan, Hugo Black, and Earl Warren — came to the bench with no prior judicial experience. Nevertheless, Marshall is universally viewed as the nation’s greatest Chief Justice, and his elegant and enduring opinions interpreting the U.S. Constitution are a national treasure and definitive proof that great justices need not be technocrats.

As constitutional historian Akhil Amar has argued, the Constitution was written to be accessible to all Americans, not just judges. He states:

Ours is a government of, by, and for the people. Thus our Constitution is written in remarkably compact prose. The full text, including amendments, runs less than 8000 words—a half hour’s read for the earnest citizen.

With speculation growing about upcoming judicial nominations, the renewed focus on Marbury should therefore serve as an important reminder that while we should seek out judges who will uphold the Constitution, the next great justice may be found outside the judicial academy.

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