PROLOGUE

ON CONSTITUTION AVENUE in the nation’s capital, midway between the White House and the Capitol, sits the National Archives, a gleaming, white, marble, temple-like structure with massive Doric columns on all four sides. The Archives features a “Charters of Freedom” hall, a cavernous rotunda on the building’s second floor where on any given day a long line of visitors from around the world waits patiently behind hooked rope barriers to view the sacraments of our national identity.

Before entering the rotunda, the expectant visitors file past a thirteenth-century copy of the Magna Carta, the British decree from 1215 announcing the protection of certain “liberties,” “rights,” and concessions. Upon entering the dimly lit great hall, they see two large paintings depicting the signing of the Declaration of Independence. As the line proceeds, they view America’s national treasures arranged in a semicircle and carefully preserved in individual, climate-controlled cases. The very first document on display is an original copy of the Declaration of Independence, with its unyielding commitment to “life, liberty, and the pursuit of happiness.”

Then, it’s on to an original copy of the Constitution, with its audacious statement that “We the People” create the union, and its historic division of the government into three branches of separated powers and checks and balances.

From there, the visitors witness an original of the Bill of Rights, adopted soon after the Constitution, with its guarantee of basic liberties such as freedom of speech, freedom of the press, and freedom of religion.

The next national treasure on display, after the Declaration of Independence, the Constitution, and the Bill of Rights, is a single Supreme Court decision from 1803: Marbury v. Madison. Unlike the other documents, Marbury is unknown to many people. The exhibit explains that it is “one of the cornerstones of the American constitutional system,” the first case in which the Supreme Court struck down an Act of Congress as unconstitutional.

Why is Marbury considered the greatest decision in American law? What is it about, and where did it come from? What impact has the decision had on the nation? Few people know or fully appreciate the story of Marbury v. Madison. And it is a rich, complex, sometimes surprising saga—arising in the midst of bitter enmity between a new president, Thomas Jefferson, and a new chief justice, Jefferson’s cousin John Marshall; emerging from the cauldron of political warfare between the defeated Federalists and Jefferson’s triumphant Republicans; culminating in a triple bank shot by Marshall that enhanced the Court’s power and prestige, avoided a futile confrontation between a weak Court and a strong president, and blasted Jefferson for lawless actions without giving him an opportunity for defiance. The case would emerge as the leading totem of American judicial review, inspiring some of the Supreme Court’s greatest later decisions.

Marbury v. Madison is perhaps underappreciated because it lacked the drama of a classic courtroom argument: Neither man showed up before the court at all, and, while Madison is heralded as one of the founding fathers, no one now knows who Marbury was. Neither man appeared ever to be personally affected by the consequences of the case. Marbury seemingly never mentioned it again. But what is indisputable is that, framed as it was, the case was a classic struggle between two factions, representing one of the first tests of American civic architecture and determining whether the country could in fact successfully cope with strongly expressed yet divergent views.

The Supreme Court was created by the founding fathers at the Constitutional Convention of 1787. It was conceived as a co-equal branch of the government, on the same level as the president and the Congress. But it wasn’t—at least until the decision in Marbury v. Madison. This is not just the story of one legal case; it is the story of America at the dawn of the nineteenth century and of how personalities, politics, and law all contributed to completing the dream the creators of the American Constitution began.

Marbury is rightly considered a national treasure, for it is a uniquely American icon that vividly stands for the rule of law. But it is much more. It can also be viewed as John Marshall versus Thomas Jefferson, the chief justice versus the president, the courts versus the Executive, the Federalists versus the Republicans, the advocates of a strong central government versus the proponent of states’ rights. As such, Marbury v. Madison became a profound public test of the viability of America’s new Constitution, embodying political attitudes that still divide Americans to the present.

It’s no accident that the case was heard following the country’s first truly contested election in which real enmity and acrimony split the Senate and the House of Representatives and reverberated throughout the press. Schism was in the air; the young republic could have fractured. The election of 1800 was the first in which power was transferred from one party to a rival. Marbury v. Madison would not have happened but for the extraordinary circumstances that saw the outgoing president, John Adams, still making political appointments late into the final night of his term of office at the White House.

The case, then, is about America’s identity. The political and judicial history of the republic was shaped by the outcome of Marbury v. Madison, and, even more important, the way that outcome was reached. It is a moment in the life of the nation when the enduring character of the country rested on the narrowest of margins, in the hands of six unelected judges, appointed by patronage, one of whom was too ill to walk from his lodging to the Court. It didn’t seem to be a propitious way to determine the future of a country still wrestling with its independent identity, but it worked.