----

There's Far More to Marbury -- and Many Other Cases -- Than Just a Holding


A Review of Constitutional Law Stories

By MATT HERRINGTON


----
Friday, Feb. 20, 2004
Michael C. Dorf, ed. Constitutional Law Stories (Foundation Press 2004)

There is more to the phrase "let's not reinvent the wheel" than meets the eye. Uncertainty is an enemy of human progress -- fostering paralysis, the inefficient allocations of resources, and high transaction costs.

But in the legal realm, uncertainty is (hopefully) reduced by the application of rules of precedent. Like cases are to be treated alike and past decisions either guide or determine the results in subsequent cases. Through this mechanism, the law is made more predictable and thus uncertainty is reduced, creating dead weight gains for society.

Narrative -- or, more informally, storytelling -- is central to the operation of precedent. Cases both convey the substance of a ruling and tell the story of the dispute being resolved. The work of lawyers is in no small part the work of distinguishing or harmonizing stories, as the situation requires -- to argue for or against the applicability of a past ruling to a new set of facts.

So stories are of special importance in the law. Traditionally, however, in the academic setting the stories behind particular casebooks have been given short shrift in favor of the rules individual cases have come to stand for. If you are a lawyer, it's worth thinking back to your own law school text books - how often was the court's factual discussion ellipse-d into the rubbish can, and only the narrow holding of the case included?

Fortunately, the Foundation Press is now engaged in a laudable effort to put factual meat back on doctrinal skeletons, through a series of books telling the stories behind landmark cases in eleven substantive areas. Professor Michael C. Dorf of Columbia University's School of Law (who is also a columnist for this site) is the editor of this series, Constitutional Law Stories -- which includes chapters by both eminent and emerging scholars.

The book is fine reading and should be seen (as its editor and publisher surely hope it will be) as an important -- and, indeed necessary -- supplement to the 1L's bookshelf. I will try to give just a brief taste here of the riches to be found between the covers of Professor Dorf's book.

Beginning With That Most Classic of Cases, Marbury v. Madison

Constitutional Law Stories begins, as one would expect, with Marbury v. Madison. The essay is authored by Professor Michael W. McConnell.

As with most all of the cases discussed in the volume, a close (re)acquaintance with the facts and the aftermath of Marbury reminds the reader not only of the dramatic narrative of the case, but also of how that narrative has been massaged over the decades to fit into a broader narrative on the power of the Courts. Thus, a close look at the book's treatment of Marbury will also illuminate the merits of the book as a whole.

The appointment of William Marbury to be a Justice of the Peace in the District of Columbia -- no less than the appointment of John Marshall to the United States Supreme Court -- was an act of pure power politics. Soon to be ancien regime Federalists, having just been shellacked in the Presidential election of 1800, used their waning days in power to, as Thomas Jefferson put it, "retire[] into the judiciary as a stronghold." Descriptions of the final hours of the John Adams administration bring to mind the Clinton pardon bazaar, with much energy and midnight oil consumed in processing eleventh-hour paperwork.

But as readers will doubtless recall, Marshall, serving as President Adams's Acting Secretary of State in the final days, did not see to the delivery of Marbury's commission. Marbury therefore sued to seek that same Marshall to order the Jefferson administration to deliver the commission.

Marshall's opinion for the Supreme Court in Marbury first determined the existence of a right -- the right to the commission). Then, it described a remedy for the violation of that right -- a writ of mandamus to the President compelling issuance of the commission.

But then, it famously threw in the towel, concluding that the Supreme Court did not have the power to issue the necessary writ. Why? Probably because Marshall's alternative was to issue an order President Jefferson was sure to ignore -- and thus to reveal the Court as weak.

Marshall chose, instead, to assert the Court's strength. He declared the statute by which Congress had purported to vested mandamus power in Court to be unconstitutional -- and thus implicitly asserted the Court's power to judge the constitutionality of Congress's statutes. (Marshall deemed the statute unconstitutional on the ground that it was an improper expansion of the original jurisdiction assigned to the Court in Article III of the Constitution.)

Was Marbury Really a Power Grab by the Court?

Interestingly, Constitutional Law Stories makes clear that a strong historical argument can be made that this was not actually the power grab that it has appeared to many to be.

After all, even Jefferson did not criticize the decision for declaring an act unconstitutional -- and thus for exercising the Court's power vis-a-vis Congress. Rather, Jefferson criticized the decision for saying more than it had to: All that was necessary, he pointed out, was the ultimate holding that the Court lacked the authority to act.

And certainly Marbury did not set off a festival of judicial activism. The Court would not invalidate another Act o Congress for more than fifty years thereafter.

Thus, a return to the story of the case, and the history of the period, brings home the point that in fact, Marbury was seen at the time as a relatively unimportant case -- one that came before a browbeaten and demoralized Federalist judiciary.

Today, of course, Marbury is seen -- in sharp contrast -- as the very cornerstone of judicial power. Why? I would argue -- and Constitutional Law Stories suggests -- that Marbury's importance increased for two primary reasons.

First, much later in our history, the need for a broader narrative emerged -- a narrative that would paint the Court as having long been the strong, activist, and fully coequal branch of government that it is now. Second, a parallel need also emerged for a "creation myth" to tie that story back to the founding generation -- and Marbury provided that very "creation myth" if it was seen as the crucial case by which the Court's power was established.

The Book's Virtue: Focusing on Facts -- Not Simply Rulings

Professor McConnell's chapter relating to Marbury is indicative, as I have suggested, of the book's more general modus operandi. Most of its chapters tell a story, in order to focus your attention on the facts at hand, but also -- and quite naturally -- draw into relief the tension between the case's facts and its historic status. Many chapters show that there is a significant disconnect between the case as it actually was lived, and litigated, and the role it has come to occupy in our larger stories of courts and rights.

Particularly compelling in this vein are the discussions of the "anti-canon" cases such as Dred Scott and Plessy v. Ferguson. In the modern mind, these cases stand for pure evil -- slavery, and segregated schools, respectively. But in fact, their history is a bit more complex than their comic-book characterization has come to suggest. These decisions were certainly wrong -- but they weren't quite as simple as the modern view makes them out to be.

Special mention is also warranted for Professor David E. Bernstein's encyclopedic and thoroughly convincing retelling of what was really at stake, and whose ox was really being gored, in the much reviled Lochner case. Lochner is held up as a symbol of capitalist heartlessness toward the worker; in fact, as Bernstein makes clear, things were not nearly that simple.

For all its charms, this book contains its share of stupid law professor tricks. One finds a single sentence festooned with three footnotes (a record?). Another favorite of mine was the citation of multiple, earnestly titled academic pieces (including what one imagines to be the canonical "The Expression of Emotion and Social Status through Bumper Stickers") to support the simplest of truisms: People use bumper stickers to communicate.

More substantively, several of the authors seemed unable to stick to the premise of the volume (telling factual stories) and instead, choose to indulge themselves with doctrinal hijinks. These chapters left me fondly recalling the words of Eli Cash, the academic novelist in Wes Anderson's film The Royal Tenenbaums. Cash explained the runaway success of his latest work with the memorable line: "Well everyone knows Custer died at Little Big Horn. What this book presupposes is . . . maybe he didn't." Unfortunately, a few of the more "creative" essayists in Constitutional Law Stories share Cash's preference for the implausible and sensational possibility, over the accurate and true-to-life fact.

All in all, the Stories series is an important project, and both the chapters' authors and Professor Dorf, the book's fine editor, have made an important contribution with this book. One Ls -- and attorneys interested in history, not just holdings -- should consider it a must read.


Matt Herrington is an attorney in Washington, D.C.

FindLaw Career Center

    Select a Job Title


      Post a Job  |  Careers Home

    View More