The Great Decision: Marbury v. Madison
with a special introduction by Alan Dershowitz
The Great Decision, which is the subject of this historical account, was rendered in the Supreme Court case of Marbury v. Madison. The court’s opinion, written by Chief Justice John Marshall, is considered one of the foundations of U.S. constitutional law. By any standard of judgment, the underlying dispute was trivial in the extreme — so trivial that no one even showed up to represent James Madison, the Secretary of State, who was the defendant in the case. Or, perhaps, the Jefferson Administration, by refusing to send a lawyer, was protesting the authority of the court to compel the President to do something he had decided not to do.
The principle in question was whether the judicial branch of our tripartite government could constitutionally compel the executive branch to take an action that the law required. In other words, does the judiciary have the last word on whether the executive has obeyed the law. This question — critical to any democracy under the rule of law — persists to this day, though the Supreme Court seems to have resolved it in the favor of the judiciary in the Marbury case, at least in dictum.
This comprehensive book includes as an appendix the Supreme Court’s actual decision in Marbury v. Madison. Despite the triviality of the specific issue in the case, the opinion in Marbury v. Madison plainly deserves its honored place in the national archives alongside the Declaration of Independence, the Constitution, and the Bill of Rights. These documents assert parchment pronouncements about rights in the abstract. Marbury v. Madison provides the essential mechanism for assuring that all the branches of the government operate under the rule of law and that no one in the country — even the President and the Secretary of State — are above the law.