John Marshall: lucky idiot or evil genius?

Allow me to revisit Marbury v. Madison now that I've had a chance to mull it over.

This decision in this case (Marbury lost) set the precedent for judicial review, which is the idea that the Supreme Court can declare laws to be unconstitutional. We'll debate SCOTUS (Supreme Court of the United States) and it's merits later. For now lets just assume that judicial review is a wonderful and perfect idea, and that it protects the liberties of folks like you and I.

In the Marbury podcast on Life of a Law Student, Neil Wehneman criticizes Chief Justice John Marshall's opinion. Wehneman points out that Marshall incorrectly interprets the Judiciary Act of 1789 before declaring it unconstitutional. According to Wehneman Marshall screwed up, but since we got judicial review out of his error it was actually a good mistake. Hence my "lucky idiot" label.

Lets look at the decision with a little more historical context. Prior to Marbury v. Madison the Federalists were enjoying a nice run. They (mostly) won the battle over ratification of the Constitution, and John Adams later became the 2nd president. However, in the next election the Federalists had their asses handed to them by the Democratic-Republican Party (I know, I thought that was a strange name too). This is why President Adams made so many "midnight appointments". He wanted to stock the judicial system with his people before turning the keys over to the new party of power.

Obviously the Democratic-Republicans, led by new president Thomas Jefferson, didn't want a bunch of Federalists occupying benches across the country. Their solution was to simply not deliver the commissions to people like Mr. Marbury, who in turn sued for a mandamus.

Here is where it gets interesting. Part of the Democratic-Republican movement was a devaluation of the original Constitution. Jefferson felt that subsequent legislation should be seen as overriding the original document. In other words, no judicial review.

In his fight to keep Federalists out of the judicial system, Jefferson inadvertently gave SCOTUS exactly what he was trying to prevent. When Chief Justice Marshall threw out the case, Jefferson won the battle but lost the war.

You know how Lost is great at setting you down one path then throwing you for a huge plot twist in the final flashback scene? Consider this the "Locke was in a wheelchair!" moment of Marbury v. Madison: John Marshall was a big-time Federalist!

I know. Take a moment to catch your breath.

In an alltime-plot twist Marshall was actually Secretary of State under John Adams prior to becoming Chief Justice.

So I'm throwing it out there. Maybe Marshall was in fact an evil genius.