8. Why I do not teach Marbury (Levinson, Inglês)

8/12/2019 8. Why I do not teach Marbury (Levinson, Ingls)

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WHY I DO NOT TEACH MARBURY(EXCEPT TO EASTERN EUROPEANS)AND WHY YOU SHOULDN'T EITHER

Sanford Levinson*

I do not generally teach Marbury v Madison.1 The exceptions,over the past ten years, have involved teaching a five-hourconstitutional law course at New York University ( NYU ) and,more significantly, a two-week introduction to Americanconstitutional law for a group of Eastern European lawyers at theCentral European University in Budapest. As for the NYU course, Iconcluded when it was over that I would return to my commonpractice of deleting the case from the syllabus even were I everagain to have the opportunity to teach a five-unit course, which, ofcourse, only reinforced my decision not to teach it in the four-hourintroductory course that I teach at the University of Texas LawSchool. I would, therefore, be extremely surprised if I ever againteach Marbury at an American law school, outside of somespecialized seminar.I suppose I should note that I do assign Robert McCloskey'sclassic he American Supreme Court,2 which includes what DavidEngdahl has described as an absurd, [and] romanticized account ofMarshall s opinion as a 'masterwork of indirection.' 3 I certainly

W. St. John Garwood and W. St. John Garwood Centennial Chair inLaw, University of Texas Law School. This was originally written to generatediscussion at the Symposium at Wake Forest University School of Law, thoughI also presented it to a gathering at the University of Minnesota Law School onFebruary 24, 2003, the 200th birthday of Marbury. One result of thinking ofwhat I have to say at symposia celebrating (or at least commemorating) thebicentennial of Marbury is to reinforce my animus against the case and, evenmore so, against the centrality that we assign to it in our courses (and imposeon our hapless students).1. 5 U.S. (1 Cranch) 137 (1803).

2. ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT revised bySanford Levinson (3d ed. 2000). I should note as well that I have taken on theresponsibility of updating McCloskey's book, originally published in 1960, bu tthat I have left the text that he wrote, including the chapter on Marbury,unch nged3. David E. Engdahl, John Marshall's Jeffersonian Concept of udici lReview, 42 DUKE L.J. 279, 324 n.146 1992).


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W KE FOREST LAW REVIEWagree that it is romanticized; I am not willing to admit to itsabsurdity, especially after reading Bruce Ackerman's as yetunpublished account of the Election of 1800 and its aftermath4 or,for that matter, my colleague Scot Powe's excellent description of thepolitics of Marbury in his contribution to this Symposium.5 In anyevent, McCloskey's book certainly provides students with enoughinformation to make them "culturally literate," one of the functionsof the "canon" in constitutional law,6 and my conscience is clearabout spending no class time on the opinion.I will turn later to why I can imagine teaching it again toEastern Europeans. The brunt of the remarks that follow however,goes to why I do not teach it to American students. My purpose isnot only autobiographical. It would be disingenuous to deny that Ialso hope to convince readers that they-or you -should stopteaching it as well. Or, if they are unwilling to follow me down thisseemingly heretical path, then at least I hope that I convince themnot to teach it at the beginning of the introductory course inconstitutional law. One of the oddities of the case, though, is thatthe only other time it makes sense to teach it, if one feels that onemust, is at the very conclusion of the course.

Let me lay out my brief, then, for why Marbury should lose itspride of place in the current conception of how to teach (andstructure casebooks about) American constitutional law:

I. UNDERSTANDING THE IMPORTANCE OF MARBURY REQUIRES ADEPTH OF HISTORICAL KNOWLEDGE THAT ALMOST NONE OF OURSTUDENTS POSSESS AND THAT WE DO NOT HAVE TIME TO TEACH.The importance of the actual case of Marbury v Madison as

distinguished from the icon taught in our courses, obviously derivesfrom its place in the remarkable four-year drama surrounding theelection of Thomas Jefferson and his displacement of the Federalisthegemons who had viewed national leadership as simply theirprerogative.7 Those four years include, at the very least, the initialElectoral College fiasco that resulted in a tie vote between Jefferson

4. Bruce Ackerman, America on the Brink (unpublished manuscript, onfile with author).

5. L.A. Powe, Jr., The Politics of American udicialReview: Reflections onthe Marshall Warren and Rehnquist Courts 38 WAKE FOREST L. REV. 697(2003).

6 See J.M. Balkin Sanford Levinson, The Canons of ConstitutionalLaw 111 HARV. L. REV. 964, 975-76 (1998).

7 See BERNARD A. WEISBERGER, AMERICA AFIRE: JEFFERSON, ADAMS, AN DTHE REVOLUTIONARY ELECTION OF 1800 (2000); see also Joanne B. Freeman, TheElection of 1800: A Study in the Logic of Political Change 108 YALE L.J. 1959,1961-68 (1999).

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WAKE FOREST LAW REVIEWplaying the role, at most, of a supporting actor to Congress and theExecutive (or, indeed, the People).It is, I believe, only this deformation that explains why ourgathering at Wake Forest is only the first of a number of-indeed,too many-symposia on Marbury and judicial review, while lessattention will be given at most law schools--other than theUniversity of Texas Law School -to what was truly the mostimportant constitutional event not only of 1803, but, indeed, of theentire period between constitutional ratification and the outbreak ofwar in 1861. I am speaking, of course, of the Louisiana Purchase.13Most of our students have literally no comprehension of the fact thatthe United States in 1789 did not extend beyond the MississippiRiver and, of course, included neither Florida nor New Orleans.(Indeed, they have no comprehension of the fact-and potential[metal constitutional significance-that neither North Carolina norRhode Island was part of the United States of America when GeorgeWashington was inaugurated as the first President on April 30,1789.

Even if we believe that the 1803 Term of Court was especiallyimportant, though, I have been persuaded by Bruce Ackerman'4 thatMarbury is in fact far less significant than the case handed downonly a week later, Stuart v Laird 1 which involved a far moresignificant capitulation by the Federalist majority to thedetermination of the Jeffersonians to escape the judicial handcuffscrafted by Adams and his associates in the last days of theirdiscredited administration. The constitutional arguments againstthe repeal of the Circuit Court Act are scarcely frivolous, especiallyif one takes Marbury seriously with regard to the importance ofmaintaining the independence of the Supreme Court (and itsmembers) by cordoning them off from unseemly additions to thekinds of cases they can hear on original jurisdiction. 16 Consider the

13 See Sanford Levinson, The Louisiana Purchase as SeminalConstitutional Event in PETER J. KASTOR, THE LOUISIANA PURCHASE:EMERGENCE OF AN AMERICAN NATION 105 (Peter J. Kastor ed., 2002).

14. I am extremely grateful to Professor Ackerman for sharing hisunpublished manuscript on the Election of 1800 and its aftermath with me.When published, it will certainly take a deserved place as the leading analysisof the election with regard to its constitutional implications. Chapter Five,Marbury v. Stuart, makes the case for the far greater significance of tuart

15. 5 U.S. 1 Cranch) 299, 299, 303, 306 (1803) (upholding Act of March 8,1802).

16. As is vigorously argued in a forthcoming article by my colleague LouiseWeinberg, Our Marbury, 89 VA. L. REV. (forthcoming 2003) (manuscript on filewith the University of Virginia Law Review). Professor Weinberg's article,incidentally, is by far the most able defense of Marbury of which I am aware,though I must pronounce myself unconvinced by her valiant attempts to defend

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WHY DO NOT TEACHMARBURYimplications for the desirability of accepting judicial appointment(and living to a ripe old age) of having to ride circuit, in thetransportation available at the turn of the nineteenth century

At the very least, one cannot possibly understand Marburywithout placing it in the context of Laird, which rarely happens.Consider only the treatment of the case in the two casebooks editedby participants in the Wake Forest symposium. Mark Tushnet andhis distinguished collaborators mention the repeal of the CircuitCourt Act and then add: A footnote: Six days after Marbury wasdecided, the Court upheld the repeal. Stuart v. Laird.... PaulBrest et al. I am one of the "et al.," I should confess-say only, In1802, the Republican Congress repealed the Circuit Court Act... ,thereby eliminating the positions of the so-called midnightjudges. . . . 8 We do not, I am embarrassed to say, even cite Stuartv Laird. (You can be assured that the next edition will rectify thiserror ) Both of us, I should note, provide more information thanDean Sullivan and the late Gerald Gunther, who offer no mention ofthe Circuit Court Act (or of Laird in their highly influentialcasebook.19

It is scarcely the case that our students do not need thesupplementation that more extended coverage might supply. I haveno reason to believe that the University of Texas Law School isunique, even among "elite" law schools, in the number of itsstudents who arrive without knowing much about American history,especially the history of the early Republic. What this necessarilymeans is that very few have the slightest idea of the context withinwhich Marbury was fought out and decided. Alas, I seriously doubtthat we have the time to fill in all of the relevant blanks. Consideronly the time it would take to inform students exactly why theJeffersonians so mistrusted John Marshall. It is easy enough topoint to the spectacularly patent conflict of interest presented by hishaving been the Secretary of State who botched the delivery ofMarbury's commission; but that is only part of the story. It iscertainly of some interest that at least some Federalists in 1801 hadtoyed with taking advantage of the (even now uncorrected)"constitutional stupidity" in the way that the House ofMarshall and his decision.

17. GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 32 (3d ed. 1996).18 PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING 82(4thed. 2000).19. DEAN SULLIVAN GERALD GUNTHER, CONSTITUTIONAL LAW (14th ed.2001).20. See SANFORD LEVINSON, Presidential Elections and Constitutional

Stupidities, n WILLIAM N. ESKRIDGE, JR. SANFORD LEVINSON, CONSTITUTIONALSTUPIDITIES, CONSTITUTIONAL TRAGEDIES 61 (1998).

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WAKE FOREST LAW REVIEWRepresentatives breaks deadlocks in the Electoral College-theaforementioned requirement that a majority of state delegations,voting on a one-state/one-vote basis, agree on one of thecontenders-by arranging for the deadlock to continue and,therefore, to make Secretary of State John Marshall the Presidentby operation of the Succession in Office Act.21

Lest one view this as paranoid fantasy, I advise that one simplyexamine the arguments made in the aftermath of the November2000 election. Very distinguished lawyers-all of them identifiedwith the Republican Party-endorsed the legal ability of a rabidlypartisan Florida legislature to set aside what it might have regardedas unacceptable results of a recount demonstrating that Al Gore infact carried the Sunshine State, and instead name Republicanelectors pledged to Florida's favorite brother, George W . Bush. Thepossibility, of course, was forestalled by the actions of theRepublican majority of the Supreme Court in the infamous case ofBush v Gore22 that shut down the recount and, therefore, left Bushwith a presumptive entitlement to the Florida electoral votes. Askyourself if the Jeffersonians had less reason to be suspicious of theFederalists (and Marshall) than Al Gore did to trust WilliamRehnquist and his Republican colleagues on the Court.

I am, of course, assuming that one must understand thehistorical context of Marbury (or of Dred Scott,23 Lochner,Korematsu, or Bush v Gore, etc.) in order to understand it.Another way of putting this is that I understand judges to behistorically-located actors in a complex political process, that onecan not understand a given case of any significance or, for thatmatter, its author/judge, without placing both the case and judge incontext. It would be like trying to understand Lincoln, Churchill, orJames Buchanan (who held perhaps the most spectacular resume ofany American president at the time of his election), without payingattention to the circumstances they faced. Oliver Wendell Holmesonce famously (or, for some, notoriously) said that much of theexplanation for John Marshall's greatness was his luck in being inthe right place at the right time.2 Some, of course, have suggestedthat the same is true with regard to Holmes' exaggerated

21. Ackerman discusses this possibility in Chapter Two, The LegitimacyGap, of his manuscript America on the Brink, supranote 4.

22. 531 U.S. 98, 100, 110-11 (2000).23. Dred Scott v. Sandford, 60 U.S. 19 How.) 393 (1857).24. Lochner v. New York, 198 U.S. 45 (1905).25. Korematsu v. United States, 323 U.S. 214 (1944).26. OLIVER WENDELL HOLMES, JohnMarshall,From the Bench, February4,

1901, in COLLECTED LEGAL PAPERS 266, 267-68 (1920).

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WHY DONOT TEACHMARBURYreputation.27 In any event, one can understand neither Marshall norHolmes, nor anyone else, without an awareness of the contextswithin which they acted, which is precisely what we mean byhistory.

II. IF ONE IS GOING TO SPEND CLASS TIME TEACHING STUDENTSABOUT AMERICAN HISTORY DO IT ABOUT SOMETHING THAT IS TRULY

IMPORTANT.I take it that everyone agrees that the substantive legal topic ofMarbury-i.e., the ability of Congress to add to the original

jurisdiction of the Supreme Court-is of no real significance,especially if we apply the following test: Would any serious adultever lie awake at night worrying about what the answer to thisquestion is outside of a very particular context where, for example,the fortunes of one's client depended on an answer? Many studentslook forward to taking constitutional law because of their belief thatthe subject actually involves important issues; it is nothing short ofbizarre that most courses (and casebooks) begin with a case about atruly trivial subject (unless, of course, one embeds the case in itsspecific history). A course on constitutional law should be, first andforemost, about issues that truly matter, whether to our students orto ourselves. Part of what we should be doing as teachers iseducating our students as to the ways that issues of fundamentalimportance to ordinary human beings (and serious adults) aretreated when they become legalized.

Not even William Marbury believed that his commission was of fundamental importance, as evidenced by the fact that heapparently made no effort to litigate his case further. Perhaps thiswas because his five-year term would almost certainly have run outby the time the litigation would have been completed; perhaps, asmy colleagues Scot Powe and Ernest Young, who are far moreknowledgeable about such matters than I am, have suggested, it isbecause there was in fact no court at the time that was an attractivevenue for such litigation.' The local federal district court had nofederal question jurisdiction at the time that would not come until1871-and state courts might well view themselves as without thepower to issue writs of mandamus against federal officials Or, hemight have accepted the advice of Federalist colleagues that theyhad gotten everything they might reasonably expect (rather thanwish for) in Marshall's gratuitous denunciation of Jefferson and that

27. For a thoroughgoing critique of Holmes see Louise Weinberg HolmesFailure,96 MICH L. REV. 691, 691-723 (1997).28. This view was shared by Scot Powe and Ernest Young in conversationwith the author.

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WAKE FORESTLAW REVIEWhe should return to his private life, along with the victims of theCircuit Court Act who in fact lost far more life tenure, for starters)than did Marbury, lest he tempt the Jeffersonians to do moremischief. If he gave no genuine evidence of strongly caring whetherhe became a justice of the peace, why should we? The answer is wedo not, and neither will (or should) any of our students.As I have already suggested, the fact that too many of ourstudents are woefully ignorant of American history does not lead meto teach ahistorically or to give up and focus only on recent cases,however much they might prefer to spend their time poring overrecent cases instead of the old cases that I tend to assign. Indeed, Ispend significant time on such cases as Prigg v Pennsylvania9 andDred Scott, which are hardly less complicated than Marbury or takeless time to place into context. But the differences between thesefirst two cases and Marbury should be obvious. It is difficult tothink of any single issue that is more important to Americanconstitutionalism, however defined, than chattel slavery. And, evenmore to the point, if we contribute to our students' ignorance ofchattel slavery and how it was completely enmeshed into theoperating doctrines of constitutional law, we risk consequences thatare completely different from the consequences of their beingequally ignorant of the importance of the Election of 1800 and itsaftermath.I focus on two consequences: Since most students, like mostother Americans, have never in fact been encouraged to think ofexactly what constitutes the complex social and legal phenomenon of slavery, they (and, I am afraid, too many of their teachers) are, atthe very least, inept in thinking of what might be required toovercome it. This ineptitude is reflected in the disgustingwillingness of the current majority of the United States SupremeCourt to continue to cite such cases as United States v Harris andthe Civil Rights Cases as good law,3 paying no attention at all tothe fact that these constructions of the Fourteenth Amendment-added to the Constitution, with whatever provenance, as part of theReconstruction of a Union that had just engaged in an epic andsavage war that killed two percent of the total American populationbecause of the issue of slavery-betrayed the promise of genuinelyprotecting African-Americans as part of the American citizenry. Ihave no trouble, for example, in believing that the Civil RightsCases are in fact worse than Dred Scott, a decision that I have

29. 41 U.S. 16 Pet.) 539 (1842).30. 106 U.S. 629 (1883).31. 109 U.S. 3 1883).32. ee United States v. Morrison, 529 U.S. 598, 599 (2000).

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WHY DONOT TEACH MARBURYincreasingly little trouble "defending" as a thoroughly plausibleanalysis of the pre-1868 ("unreformed") Constitution." I find itgrimly fascinating that Dred Scott and, for that matter, Lochnerremain "uncitable" even as such dreadful cases as Harris and theCivil Rights Cases retain their vitality.To understand my arguments on this point, though, requires animmersion into the history of slavery (and then of the meaning ofthe 1861 1865 war and its aftermath). I believe that the currentmajority of the Court has an inadequate grounding in Americanhistory-for all of its protestations of being "originalist" ininterpretive approach-and that this at least helps to explain manyof their recent decisions that are based on an ante-bellum view ofconstitutional ontology. We have a duty to educate our ownstudents better than these Justices were educated at the Harvard,Stanford, and Yale law schoolsA second consequence of taking scarce time to teach Marburyand, therefore, ignoring the slave cases, is that it promotes anunjustified optimism in students that the American constitutionalsystem-including judicial decisions-has happy endings, that itnever serves as a mechanism for legitimizing evil. One of thereasons, after all, that no serious adult could possibly care aboutWilliam Marbury and his commission or his ability to receive a writof mandamus is that no serious moral issue attaches to any of this,unless, I suppose, one analogizes Marbury's claim to a strongproperty right in his commission and then accuses Madison of beinga communist in refusing to deliver his property. (Next thing youknow, he'll be seizing Marbury's farm without paying compensationBut I digress.)

I take it that the moral import of chattel slavery is obvious. Ipersonally find it pedagogically useful to ask students, with regardto Prigg if they would support Pennsylvania's "liberty law" even ifthat entailed the threat to maintenance of the Union that Storyapparently thought was the case. Or would they support a contraryresult in Dred Scott if it meant that secession would have come twoyears earlier, during the administration of James Buchanan, withthe likely consequence that the South would have been left free to goin peace, whatever lamentation Buchanan might express about thedissolution of the Union? Or what should an "honorable" person do

33 See Mark A Graber, Dred Scott and the Problem of Constitutional Evil(unpublished manuscript, on file with author), which convincingly shows thatDred Scott is defensible in terms of any of the current standard approaches toconstitutional analysis. See also Mark A Graber, DesperatelyDucking Slavery:Dred Scott and ContemporaryConstitutionalTheory 14 CONST COMMENT 271,280-82 (1997).

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W KE FOREST LAW REVIEWif asked to enforce the Fugitive Slave Law? Was Garrison perhapscorrect in believing that no moral person could agree to serve as ajudge, just as Antonin Scalia has recently suggested that any Justicewho truly believes that the death penalty is immoral should resignrather than either become part of the machinery of death or, fromScalia's point of view, lie about what the Constitution means (i.e.,falsely state that the Constitution prohibits capital punishment)?34

Law sometimes serves as a vehicle for making the world better.That is, presumably, what keeps most of us functioning as membersof a truly peculiar institution devoted to training lawyers and otherlegal actors. Indeed, our need to continue to believe in the goodnessof law (and lawyering) makes it ever more imperative to remindourselves-and teach our students-that law, including that branchcalled American constitutional law, also serves as a vehicle forrationalizing evil. Marbury teaches nothing at all about thecapacity of the law to enhance either good or evil unless, of course,one treats it completely politically and makes the case why ThomasJefferson indeed was either a benign or malign figure in Americanpublic life. I am not opposed to doing this, but even that could takea surprising amount of time. Consider the implications of the fact,for example, that Jefferson owed his election to the disproportionateelectoral power given the slave states because of the three-fifthsclause.35 It is quite thinkable that American blacks would have beenfar better off had the New Yorker Aaron Burr become president,though, of course, the country might not have survived, which mayor may not have been a good thing if one is interested in the fate ofAmerican slaves. It turns out that prudential reasoning iscertainly no easier, or less time consuming, than other modalities oflegal analysis.

III. WHY TEACH A CASE THAT IS SO SHODDY IN ITS REASONINGUNLESS ONE WANTS TO DISCREDIT THE ENTERPRISE OF LEGALANALYSIS? AND EVEN IF ONE DOES WANT TO DISCREDIT THE

ENTERPRISE OF LEGAL ANALYSIS, THERE ARE NOT BETTER CASES THANMARBURY TO MAKE THE POINT?

I confess that one reason I stopped teaching Marbury is that Igot angry, every single year, when reading Marshall's mangling ofsection 13 of the Judiciary Act36 and then Article III of the

34. See Antonin Scalia, God s Justice and Ours, FIRST THINGS May 2002, at17, 17-18.35. See, e.g. Paul Finkelman, The Proslavery Origins of the ElectoralCollege, 23 CARDOZO L. REV. 1145, 1146 n.5 2002).36. Judiciary Act of 1789, 13, 1 Stat. 73 (1994).

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WHY DONOT TEACHMARBURYConstitution.37 Begin with the fact that his quotation of section 13is, at best, limited, at worst an out-and-out attempt to deceive thereader. Marshall writes, [tihe act to establish the judicial courts ofthe United States authorizes the supreme court 'to issue writs ofmandamus, in cases warranted by the principles and usages of law,to any courts appointed, or persons holding office under theauthority of the United States, and he goes on, famously, to saythat the grant of original jurisdiction in order to issue such writs isunconstitutional because of Article III. The actual text of section 13of course, is considerably murkier:

[T]he Supreme Court shall have exclusive jurisdiction of allcontroversies of a civil nature, where a state is a party, exceptbetween a state and its citizens; and except also between astate and citizens of other states, or aliens, in which latter caseit shall have original but not exclusive jurisdiction. And shallhave exclusively all such jurisdiction of suits or proceedingsagainst ambassadors, or other public ministers, or theirdomestics, or domestic servants, as a court of law can have orexercise consistently with the law of nations and original, butnot exclusive jurisdiction of all suits brought by ambassadors,or other public ministers, or in which a consul or vice consulshall be a party. And the trial of issues in fact in the SupremeCourt, in all actions at law against citizens of the UnitedStates, shall be by jury. The Supreme Court shall also haveappellate jurisdiction from the circuit courts and courts of theseveral states, in the cases herein after specially provided for;and shall have power to issue writs of prohibition to thedistrict courts, when proceeding as courts of admiralty andmaritime jurisdiction, and writs of mandamus in caseswarranted by the principles and usages of law to any courtsappointed, or persons holding office under the authority of theUnited States. 9There is, of course, no compelling reason to interpret this as

authorizing the Court to exercise original jurisdiction in order toissue writs of mandamus and at least one good-indeed,overriding-reason to read it as referring only to what the Court cando in appellate cases: The norm that ambiguous statutes should notbe interpreted in a way that makes them unconstitutional(assuming, of course, that one accepts that part of Marshall'sargument, which, as I shall note presently, is equally dubious).

Marshall's quotation of Article III is perhaps even moremisleading: .'[T]he supreme court shall have original jurisdiction inall cases affecting ambassadors, other public ministers and consuls,

37. U.S. CONST. art. III.38. Marbury v. Madison, 5 U.S. 1 Cranch) 137 173 (1803).39. Judiciary Act of 1789, 13 1 Stat. 73 .

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W KE FORESTLAW REVIEWand those in which a state shall be a party In all other cases, thesupreme court shall have appellate jurisdiction. '4 Some lawyers, ofcourse, might believe that it is relevant that the text goes on toconclude with such Exceptions, and under such Regulations as theCongress shall make. 4 It is, to be sure, easier to prevail inarguments if one can rewrite texts to suit one's convenience. In anyevent, I am confident that if a first-year student in a writingassignment quoted texts the way that Marshall quoted section 13and Article III, we would patiently explain that this is not the wayhonest lawyering is really done. If a third-year student did so in aseminar paper, I doubt that we would be so charitable. And imaginewriting a tenure review for an article in which a clever youngassistant professor followed Marshallian norms of quotation. It ispossible, of course, that criteria of intellectual honesty have changedover the years, an interesting question in its own right, but if that justifies Marshall, then, at the very least, we should explain to ourstudents that they should certainly not view him as a model forpresent-day advocacy lest they find themselves facing disciplinarycharges or losing otherwise bright prospects for academic success.

But this explains only part of my anger. Marshall's most brilliant interpretive move in Marbury is to pretend that theinterpretations of section 13 and Article III can take place entirelywithout reference to each other. It is as if one tries to analyze Act Vof King Lear without paying any attention to the events of Act I sothat, for example, the Kordelia who reappears at the end of theplay is viewed as an entirely different person from the Cordeliawhose ill-fated stubbornness sets off the tragedy that ensues. Thiswould presumably lead to a strange hermeneutics, especially if oneends up with such radically contradictory interpretations of Act Iand Act V that it makes it impossible to believe that they are trulypart of the same play. Marbury is just such an example of a strange,even bizarre, hermeneutic practice.

Let me offer the following quite simple-I hope not simplistic-hermeneutic principles for someone faced with the task of having tointerpret two patches of text:

First, determine whether each, in isolation, is clear (accordingto whatever may be one's favorite interpretive methodology). If bothare clear and not in tension with one another, there is presumablyno problem. If they are in tension and, especially, if they appear tocontradict one another, then one must move to a meta-stage bywhich one offers priority rules for preferring one clear text overanother. To prefer the Constitution to a statute is not a bad priority

40. Marbury 5 U.S. at 174.41. See U.S. CONST. art. III, 2

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WHY I DONOT TEACHMARBURYrule-you will note that I have not come close to criticizing Marburyfor its assertion of constitutional supremacy. The problem, ofcourse, is that no honest person could claim that both section 13 andArticle III are clear in their meaning, so we must move on.

If one patch of text is clear and the other unclear, theninterpret the latter to coincide with the former. So, if anyonebelieves that it is section 13 that is clear (and means whatMarshall said it meant) and Article III that is ambiguous, then,obviously, assume that the members of the vaunted First Congress,including the many Framers who were there to support the passageof the Judiciary Act, believed that the Regulations and ExceptionsClause of Article III supported the granting of original jurisdictionin order to issue writs of mandamus in cases like Marbury's.Obviously, if one believes that Marshall was correct as to the clearmeaning of Article III and that it is section 13 that is unclear, theninterpret section 13 to allow writs only on appellate cases properlybefore the Court and not, therefore, to the case actually before it.One could simply assume that the First Congress placed themandamus clause at the conclusion of the sentence on appellatejurisdiction because it recognized that it would be constitutionallyinappropriate to include it as part of original jurisdiction. I canconceive of no rationale that would say to interpret the ambiguouspassage in a way that brings it into conflict with the clear one.If both passages are unclear, then, obviously, interpret both ofthem in a way that makes them consistent with one another. Onceagain, I can conceive of no rationale that would say to interpretthem as if they are entirely separate from one another and,therefore, run the risk (realized in Marbury that they wouldcontradict one another.It is, I confess, Marshall's failure to follow these quite simplenorms that makes it impossible for me to take the internalistaccounts ofMarbury with any seriousness. One might even concedethat William Nelson is correct in his insistence that Marshall livedin a world that took more seriously than we do the distinctionbetween politics and law 42 without accepting the proposition thatMarbury is, at anything other than the superstructural rhetoricallevel, an example of this distinction. The only explanation I can givefor his quite literally incredible performance in concluding that thebadly written, unclear texts of section 13 and Article III contradictone another is externalist, based on his political desire to be able:1) to chastise Thomas Jefferson; 2) to demonstrate such judicialpower as the invalidation of section 13 was thought to give the

42. WILLIAM E. NELSON, MARBURY V MADISON: TH ORIGINS AND LEGACY OFJUDICIAL REVIEW 2000).

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WAKE FOREST LAW REVIEWCourt; and (3) to avoid any risk of a constitutional crisis, includingimpeachment, by actually requiring an action of Madison,Jefferson's proxy, that he would surely decline to perform.

Even if one is willing to take the time to develop thehermeneutic argument sketched out above, which would almostcertainly take more than a single class for students new to theenterprise of legal analysis, and even if one is willing to spend thetime placing Marbury within its context so as to understand whyMarshall did whatever was necessary to avoid actually orderingMadison to deliver the commission, why do it? Why shouldstudents' first experience with constitutional analysis be a case thatcan be fully understood only if one applies a fairly vulgar version ofLegal Realism demonstrating that a judge will do anythingnecessary to achieve his or her policy goals?

One response, of course, is that vulgar Legal Realism is correct,a view that I am sometimes drawn to, especially in the era of Bushv Gore and the zealotry of the current Supreme Court majority withregard to protecting states against the possibility of being sued byaggrieved citizens. But even the desire to make that pointcertainly does not justify the emphasis that Marbury gets. Thereare so many more important cases that could be used todemonstrate the interplay of law and politics. Of the older cases,my own favorite is the aforementioned Prigg v Pennsylvania inwhich Justice Story, who was also Dane Professor of ConstitutionalLaw at Harvard and the author in 1833 of the most influentialconstitutional law treatise of his time, admitted in effect that thereis no better way of defending the egregious results of that case thanby pointing to the possible threat to the Union that would follow ifthe Court recognized fugitive slaves as even minimalrightsholders-i.e., not to be returned to slavery without theguarantee of a judicial hearing that they were in fact the fugitivesthey were alleged to be. Thus, slaveowners have a constitutionalright to engage in self-help repossession of their chattels. Or amore recent case that certainly is the focus of much contemporarydiscussion, Ex parte Quirin 6 in which the Supreme Court mightwell be thought to have submitted to pressures from the President ofthe United States to rubberstamp the summary trial and executionof German saboteurs.47 One could go on and on citing cases that

43. See e.g. Univ. of Ala. v. Garrett, 531 U.S. 356, 360, 373-74 (2001);Alden v. Maine, 527 U.S. 706, 730, 755-57 (1999).

44. See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 608-09, 625-26, 673-74(1842).45. See id at 613.

46. 317 U.S. 1 (1942).47. See Richard H. Fallon, Jr., Marbury and the ConstitutionalMind: ABicentennial Essay on the Wages of Doctrinal Tension 91 CAL. L. REV. 1 30-31

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WHY I DONOT TEACH MARBURYdemonstrate the interplay of law and politics. Why anyone wouldprefer Marbury to any of these other cases, if one is simplyinterested in conveying to students a Realist mode of analysis, isbeyond me. Persons with more conservative views than mine mighthave their own candidates, including, perhaps, Blaisdell, Baker vCarr,9 or Casey, but the point still stands. All of these, by anystretch of the imagination, are more significant than Marbury.Even if one uses Marbury to make the case for judicial review,certainly an important issue, just have students read FederalistNumber 78 and then explain that Hamilton's arguments weresubstantially accepted in an otherwise obscure 1803 case.51Moreover, the important arguments thereafter were about theactual occasions for, and scope of, review rather than the theoreticalexistence of the power in such non-existent cases as, for example,Congress declaring that one witness was enough to convict fortreason.

One need not be a full-fledged Legal Realist to believe thatcourts are especially political during times of politicaltransformation. (This is, after all, the distinction between normalscience and what occurs during times of paradigm shifts.) So if oneshares my own interest in looking at how courts respond to political transitions or constitutional moments, then, of course, I wouldsubmit that the events of 1860 to 1877 are of almost infinitely moreimportance than those of 1800 to 1804 in terms of the continuingconsequences for our present polity. Others might pick the NewDeal Revolution or, indeed, the present constitutional moment itself,which calls into attention important aspects of what had heretoforebeen perceived as the New Deal settlement, not to mention, inmore recent days, the potential slippage toward a 1984-like versionof constitutionalism in which the Executive Branch is able torestrict rights at will so long as it labels someone, without the needto present corroborating evidence, a terrorist or enemycombatant.

If one is a full-fledged Realist, though, other issues move tocenter stage. Why, for starters, take the students' time to spendforty-two hours together studying constitutional analysis? Rather,simply say (something like)

what you learn from Marbury is that judges will do whatever

n.150 2003).48. Home Bldg. Loan Ass'n v. Blaisdell, 290 U.S. 398 1934).49. 369 U.S. 186 1962); see Robert J. Pushaw, Jr., Bush v. Gore: Looking atBaker v. Carr in a ConservativeMirror,18 CONST. COMMENT. 359 2001).50. Planned Parenthood v. Casey, 505 U.S 833 1992).51. Marbury v. Madison, 5 U.S. (1Cranch) 137 1803).

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WAKE FORESTLAW REVIEWis necessary, including mangling texts and making dubiousarguments, in order to attain their policy ends (includingsupporting the policy ends of the political officials to whomthey owe their appointments and loyalty . We will spend therest of the semester looking at a variety of opinions makingthe same meta-point, concluding with Bush v Gore a casefully in the Marbury tradition. 2

I strongly suspect that many of my readers would object to this asthe message of Marbury, precisely because they view themselves astaking legal analysis very seriously indeed and purport to reject theteachings of Legal Realism or Critical Legal Studies insofar as theydo not.But if that is the case, then I find it even more mysterious whythey (or you) would begin with Marbury (or teach it at all), just as,perhaps, you might be surprised that someone with my views doesnot relish the chance to use Marbury simply to sow the seeds of athoroughgoing hermeneutics of suspicion. So let me make anembarrassing confession: For all of my own attractions-indeed,intellectual commitment-to Legal Realism, I nonetheless believethat there are opinions of the Supreme Court (or of otherconstitutional interpreters to whom I also grant authority) that aregenuinely inspiring and may even, at least a bit, vindicate ourspending time in teaching students how to be constitutional lawyers(and, some of them, judges). It is only such a view, of course, thatlicenses Realists actually to express other than simple politicaloutrage concerning decisions they despise. 3I have discussed on other occasions the fact that JusticeJackson's opinion in the Steel Seizure Case never fails to inspireme. Although I have become sophisticated enough to see many ofthe problems with Jackson's opinion in West Virginia State Board ofEducation v. Barnette, I can nonetheless understand why CharlesAlan Wright selected it as his favorite case.57 o not agree withPaul Carrington's argument that one must believe in law in order

52. See Sanford Levinson, Bush v. Gore and the French Revolution: ATentative List of Some Early Lessons, 65 LAW CONTEMP. PROBS 7, 20-23(2002).

53. For discussion of this point, see Jack M. Balkin Sanford Levinson,Legal Historicism and Legal Academics: The Roles of Law Professors in theWake of Bush v. Gore, 90 GEO. L.J. 173, 193-96 (2001).

54. Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 634-55 (1952)(Jackson, J., concurring).

55. See Sanford Levinson, Introduction: Why Select a Favorite Case?, 74TEX. L. REV. 1195, 1195-2000 (1996).56. 319 U.S. 624, 625-42 (1943).

57. See Charles Alan Wright, My Favorite Opinion The Second Flag-Salute Case, 74 TEX. L. REV. 1297, 1297 (1996).

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WHY I DONOT TEACH MARBURYt teach it, 8 but I do believe that it is profoundly depressing tospend one's life teaching students how to be lawyers if one believesthat Marbury is the paradigm case of analysis.It is possible, of course, as Jack Balkin and I have argued onanother occasion, 9 that we should simply accept the fact that ourtask is nothing more (or less) than teaching our students therhetorical grammar of law talk. Those of our students who go onto lead morally admirable lives will craft arguments serving goodcauses and clients even as we realize that others of our students willgo on to use the rhetorical skills we have taught them to servecauses and clients we despise. It is like teaching English or French.No language teacher gets professionally depressed because somestudents will learn from us how to write effective Nazi propaganda,so long as others write more acceptable messages. So, perhaps, it iswith teaching law.Perhaps we should share these concerns with our students andtell them that their souls are at stake in becoming lawyers. Indeed,I do teach professional responsibility, and I think it is important forstudents to read Plato's Gorgias and its attacks on mere rhetoricdivorced from the knowledge of justice.' But Marbury, as alreadysuggested, is useless for these purposes since it has nothing on itsface to do with justice, not to mention that any such inquiries get usinto the most rocky of jurisprudential terrains (beginning, of course,with what we can possibly mean by justice ). If we wish to go downthat road, as I in fact do, infinitely better, for these purposes, isMarshall's opinion in The Antelope 6 in which he carefullydistinguishes between the duties of the jurist and the moralistbefore he upholds, in substantial measure, the rights of slave-

owners.IV. TEACHING MARBURY REINFORCES THE NOTION OF JUDICIAL

SUPREMACY INSTEAD OF CONSTITUTIONAL SUPREMACY.Finally, I believe that emphasizing Marbury reinforces the

single most pernicious aspect of American legal education, which isto instill in hapless students the most vulgar of all notions of LegalRealism, summarized in Charles Evans Hughes' identification of

58. Paul D. Carrington, Of Law and the River, 34 J. LEGAL EDUC. 222, 226-28 (1984).59. J.M. Balkin & Sanford Levinson, ConstitutionalGrammar, 72 TEX. L.REV. 1771 (1994); see also J.M. Balkin & Sanford Levinson, Getting SeriousAbout TakingLegal Reasoning Seriously, 74 CHI. KENT L. REV. 543 (1999).

60. PLATO, GORGIAS 52-54 (Terence Irwin trans., 1979).61. 23 U.S. (10 Wheat.) 66 (1825).62. Id. at 121-22, 131-32.

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WAKE FORESTLAW REVIEW the Constitution with what the judges say it is. 3 This isunacceptable either as a normative or a descriptive view ofAmerican constitutionalism. Normatively, it turns the Constitutioninto the preserve of a remarkably narrow professional elite andobliterates the sense of what I have elsewhere called constitutionalprotestantism 6 and what Larry Kramer has powerfully defended as popular constitutionalism. r But I also object to Hughes when Iwear my hat as a political scientist: A far more plausible form ofrealism is the recognition that the Constitution is, at the veryleast that is, even if one rejects popular constitutionalism -whata variety of institutional actors say it is, including legislators,presidents, bureaucrats, and local police.

I will happily concede that adherence to judicial-and notmerely constitutional-supremacy may not be the result of intrinsicfeatures of Marbury; a number of thoughtful analysts haveconvincingly described Marbury as far more modest in its claimsthan those asserted in, say, Cooper v Aaron. I ascribe Marbury sbaleful influence more to the fact that most persons who teach thecase give it pride of place by presenting it at the very beginning oftheir courses, just as all too many casebooks continue to begin withit, or even if they wait a relatively few pages before introducing it,refer to it as providing the basic framework for constitutional

63. THE OXFORD DICTIONARY OF AMERICAN LEGAL QUOTATIONS 216 (Fred R.Shapiro ed., 1993) (quoting Charles Evans Hughes, Speech Before the ElmiraChamber of Commerce May 3, 1903), in ADDRESSES AND PAPERS OF CHARLESEVANS HUGHES: GOVERNOR OF NEW YORK 1906-1908, at 133, 139 (1908)).

64. SANFORD LEVINSON, CONSTITUTIONAL FAITH 27-52 (1988).65. See Larry D. Kramer, Foreword: We the Court, 115 HARV. L. REV. 4, 16-74 (2001). Kramer further develops his notion of popular constitutionalism in

his forthcoming book, LARRY KRAMER, THE PEOPLE THEMSELVES: POPULARCONSTITUTIONALISM AND JUDICIAL REVIEW forthcoming 2004) (manuscript onfile with author).

66. 58 U.S. 1 (1958). It was there that the Court cited Marbury for the basic principle that the federal judiciary is supreme in the exposition of the lawof the Constitution, and that principle has ever since been respected by thisCourt and the Country as a permanent and indispensable feature of ourconstitutional system. Id at 18. As I have written elsewhere,the Court's statement is really quite preposterous in its depiction ofAmerican history. If a student wrote such a statement in a final

exam, it would receive a D at best, inasmuch as its validity requiresthat one ignore, for starters, the thought of Madison, Jefferson,Andrew Jackson, John Calhoun, Lincoln, and Franklin Roosevelt-toname only the best-known critics of overinflated claims of judicialsupremacy.MCCLOSKEY, supra note 2, at 241. Books articulating a quite modest notion of

Marbury s meaning include: ROBERT LOWRY CLINTON, MARBURY V MADISON ANDJUDICIAL REVIEW 1989); SYLVIA SNOWISS, JUDICIAL REVIEW AND THE LAW OF THECONSTITUTION (1990). See also Engdahl, supra note 3.

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WHY I DONOT TEACHMARBURYanalysis.6 7As I have said on a number of previous occasions, the singlemost important feature of the casebook with which I am associatedis that it functionally begins, following a short introductory chapter,with James Madison's speech before the 1791 Congress on why theproposed bill to charter the Bank of the United States isunconstitutional;6 and this is followed by the memoranda sent toGeorge Washington by the three members of his cabinet, ThomasJefferson, Alexander Hamilton, and Edmund Randolph;69 which isfollowed in turn by Marshall's opinion in McCulloch v Maryland;7and then Andrew Jackson's 1832 veto of the Bank's renewal.7 1 Thepoint, obviously, is that all of these officials (not to mentionparticipants, including John Marshall and others, in vigorousnewspaper debates that followed McCulloch 7 are full-scaleconstitutional interpreters. Only John Marshall took seriously thenotion that by this tribunal alone"73 could the vital issues presentedby the federal incorporation of banks be resolved. It is probablyworth mentioning that Marshall does not bother to cite Marburyeven as he makes this extraordinary claimNo doubt, one could use Marbury to critique McCulloch, butwhy exactly bother? Will for example, the current Supreme Court,addicted to a theory of judicial supremacy that might make evenMarshall blush, be persuaded that they have misread Marbury and,therefore, that it is not the function of the judiciary to offer"ultimate interpretations" of the Constitution? Or will our studentstake us seriously if we say that it is McCulloch that is extravagantin its analysis and not Marbury? Will not they (properly) treat thatas a truly "scholastic" debate and believe that we are tilting atwindmills? Or perhaps the Court will simply start citing McCullochinstead ofMarbury?

In any event, I am confident that every major issue ofconstitutional interpretation and institutional power is instantiatedin the forty-year-long debate about the constitutionality of the Bank.Insofar as one of these issues is the role to be played by the Courtitself as constitutional interpreter, McCulloch offers more than

67 GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAw 23 (3d ed. 1996).68. See BREST ET AL., supranote 18, at 8.69. Id. at 11-16.70. Id. at 17-30, 44-49.71. Id. at 51-55. Indeed, Jackson's veto is followed by a memorandum from

Walter Dellinger, then the head of the Office of Legal Counsel in theDepartment of Justice, to Abner Mikva, Counsel to President Clinton, on"Presidential Authority to Decline to Execute Unconstitutional Statutes." Id. at56-58.

72. See id. at 50-53.73. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819).

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WHY DONOT TEACHMARBURYAmerican equivalent of cosmopolitan business interested inbecoming part of what we would today call the global economy.Thomas Jefferson, however, is the leader of the country or liberalmovement, as suspicious of globalization, including trying to attractimmigration from cities abroad, as anyone in Seattle or Genoa.By 1800, the earlier coalition between nationalists and localists,forged in the common goal of ousting the colonizing hegemon,bursts. The country's symbolic father has died, and his childrennow are at each other's throats about who should inherit the estate,including the right to claim the ultimate title of nobility, that of true American. The localist Jeffersonians obviously oust thenationalizers, to the utter dismay of the latter, who pledge to dowhatever they can, short of armed revolution, to stop this triumph ofthe barbarians. That is, they view the Jeffersonian victors of 1800precisely as (take your pick) the anti-Communists view the re-organized Communist parties that are being restored to power in avariety of Eastern European countries or as those sympathetic to atleast some aspects of the old order (such as the welfare state) viewThatcherite modernizers who will leave the economicallyvulnerable with almost nothing in a rush toward conformity withIMF dictates. As it happens, the last time I taught Marbury inBudapest, the then-president of the Serbian quasi-state that hadbeen formed in Bosnia, who was a relative moderate i.e., lessravingly fascistic than her predecessor) had been faced with anorder from a supreme court dominated by appointees of the trulyravingly fascist leader Radan Karadic. The response of thepresident was to ignore what the court said, just as Jefferson would(properly?) have ignored a decree from a ravingly Federalist Courtdetermined to exercise full control over the judiciary. Stuart vLaird would also have come out the other way, and been equallyignored, one suspects, and Marshall threatened with impeachment.)So Marshall was faced with a real dilemma: How does he denouncethe new barbarians without, at the same time, running the risk ofhis own exit from office via impeachment? The answer, as everyoneknows, is Marbury.So then the topic for discussion is whether Marbury in factpresents a desirable model for judicial behavior in transitionalregimes. Should Marshall have behaved in a more principled

77. Richard Fallon's excellent article discusses the three faces ofMarbury, one of them being the propriety of the Court's exercising prudence indeciding what fights to engage in. See Fallon, supra note 47, at 27-33. AsFallon notes, this face is in tension with the other two faces, the Court's role inadjudicating private rights and a quite different role as being responsible forthe articulation of public values.

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WAKE FORESTLAW REVIEWway, even at the risk of his own political future or the institutionalsurvival of the Supreme Court? Should he have kept his mouth shutabout the Jeffersonian usurpers and simply said, We have nojurisdiction, end of discussion? Or did he do the right thing by firstdenouncing the usurpation and then rolling over and playing dead?Eastern European lawyers (and, no doubt, other similarly-situatedstudents) can easily understand these dilemmas and offer vividarguments. American students, on the other hand, are blessedlyexistentially unaware of the dilemmas facing transitional regimesand those who would purport to lead them.78 This lack of awareness,to be frank, makes most of their comments of little interest, whichmeans, once more, that there is no reason to clutter up thesyllabus-and valuable class time-with Marbury v. Madison.

VI. CONCLUSIONConsider the fact that very few law professors of constitutionallaw any longer bother to teach the subject of intergovernmental taximmunities, although, as Robert Post has recently demonstrated inhis analysis of the Taft Court,79 the topic is of fundamental interestto anyone interested in the logic of federalism and the role of federalcourts. For better and, perhaps, worse, most of us have concludedthat the subject is now of basically esoteric interest; more to thepoint, I suspect, we believe that there are simply more importantthings to teach our students than the intricacies of Collector v. yand Graves v. New York ex. rel. O'Keefe. At least with regard tointroductory courses in constitutional law, they have been foundsuitable candidates for what Leon Trotsky so memorably labeled the dustbin of history. Marbury should join them in well-deservedobscurity. Time is too short and other issues too important. It istime to move on.

78. I wonder, though, if we are not currently in a transitional situation toa soft kind of police state under the aegis of the war on terrorism. It iscertainly not clear to what extent the Supreme Court will uphold what havebecome traditional civil liberties against the assault being conducted (and,even more, envisaged) by the Bush Administration and the Department ofJustice.79. Robert Post, Federalism in the Taft Court Era: Can It Be Revived ?, 51DUKE L.J. 1513 (2002).

80. 78 U.S. (11 Wall.) 113, 128 (1870) (limiting ability of the nationalgovernment to tax state employees), overruled by Graves v. New York, 306 U.S.466 (1939).

81. 306 U.S. 466, 486 (1939) (overruling Collector v. Day, 78 U.S. (11 Wall.)113 (1870)).82. GREIL MARCUS, THE DUSTBIN OF HISTORY 4 (1995) (quoting Leon

Trotsky, Address at the Second All-Russian Congress of the Soviets (Oct. 25 ,1917)).

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WHY DONOT TEACH MARBURY

What follows are two slightly edited texts of emails receivedfrom two eminent professors of constitutional law in response to thearguments set out above:

JACK BALKIN,8 CONCURRING AND DISSENTING:I must confess that when I read the discussion about why it isworth teaching Marbury to Eastern Europeans, I find myselfmore and more attracted to lifting that section and placing itin our casebook so that students will understand thetransitional nature of the political context in which Marburywas decided. It is hard for me to accept that one should giveup teaching the case for those very reasons. In my view, oneshould not take its doctrinal moves seriously as legalarguments but rather instead show how they dealt with thepolitical issue of constitutional settlement presented by theRevolution of 1800.Perhaps we can split the difference between our views asfollows: I think that one should no longer teach Marburybecause of what it says but rather because of what it oespolitically: that is, Marbury is important to teach because ofthe way that it and perhaps more importantly Stuart vLaird creates a constitutional settlement of a problem thathad not been adequately foreseen by the founding generation.We might think of the Constitution as a series of successivesettlements or regimes), continually adding new things to theConstitution under the fiction that they were always alreadythere. If so, then the events of 1800 need to be taught, for theyare an example of a settlement that had to be made when theink was barely dry on the pages of the Constitution. Thissettlement, made so soon after the Philadelphia convention,gives the lie to one of the most intellectually stultifying mythsabout the Constitution-the myth that the Founders hadwisely foreseen all of the political problems of the future andcrafted impeccable solutions whose wisdom we will discover ifonly we slavishly throw ourselves into the task of parsing theirwords and deeds ever and ever more carefully.

I must also confess that I find a certain kind of poetic justice inthe fact that at the very moment when the Supreme Court

83. E-mail from Jack Balkin, Professor of Law, Yale Law School, to SanfordLevinson on file with author).

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WAKE FORESTLAW REVIEWfirst announces the doctrine of judicial review, at the verymoment that, to our contemporary minds, symbolizes thevirtues of an independent judiciary devoted to the Rule of Law,the Court does so in a political context that demonstrates theCourt's lack of independence from politics. It is entirely fittingthat in Marbury the Court speaks in the language of completejudicial isolation from politics, all the while playing its role asa political actor a pretense and a duality that the Courtwould display over and over again in our Nation's history. Asit did at the beginning, so it has done ever since. To borrow aphrase from Freud, Marbury v Madison the primal scene ofAmerican judicial review, is that tawdry mixture of politicsand law which dare not speak its name, and which mustalways be denied by judges, but which has ever shaped thepractice of judicial constitutional interpretation in our country.I find myself completely in agreement about why people whohave taught Marbury in traditional ways in the past have beenwasting their time. But I find your arguments provide acompelling reason for teaching it in new ways. I think this ischaracteristic of what literary critics would call a classic, i.e.,something that can speak in ever new ways to us no matterwhat our theoretical preoccupations of the moment. One wayof reinterpreting your argument is that the theoreticalpreoccupations of constitutional law teaching have shifted orshould shift, and that the classic case, Marbury v Madisonwhich, in your mind, represents the old way of thinking, mustbe discarded. Yet, I would insist, precisely because Marbury isa classic, it can be reconfigured to serve the ends of a new wayof thinking about constitutional law. That is, Marbury can beseen in our own time as an exemplar of constitutionalprotestantism, or popular constitutionalism, or partisanentrenchment, or a constitutional moment, or a constitutionalsettlement, or what have you. That flexibility, that ability tobe reconceptualized and theorized in ever new forms and waysas times change, is precisely what is most characteristic of aclassic text and of the function that the text serves as a classic.EVAN CAMINKER,8 DISSENTING:I have always taught Marbury and I don't think merely out ofrespect for the traditional canon. I use it to try to get mystudents to see a few things right off the bat:

84. E-mail from Evan Caminker, Professor of Law, University of MichiganLaw School, to Sanford Levinson on file with author).

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WHY DO NOT TEACHM R URY(1) How to do textual analysis. I have the students play withboth Section 13 of the Act and the OJ/AJ Allocation Clause tosee the various plausible readings of both, and then introducethe point you discuss about whether as a matter of role courtsought to try to read ambiguous texts to conform rather than toconflict.

(2) Learn to question the validity of "judicial reasoning." Ihave found (as many of us do) that 1Ls are too ready toassume that anything a judge says must be right. This is acase ripe with opportunities to show that the judge paperedover some obvious difficulties, played fast and loose with text,etc.

(3) Learn to "question the obvious." I do run through some ofthe pre-case history, primarily to point out that well-established norms of judicial independence were apparentlyeither (a) not established or (b) run roughshod over just afterthe Framing. Not just the repeal of the Midnight Judges Act,but also the suspension of the Court's term, and themanipulation of the number of Supreme Court judges todeprive the next President of a nomination. [I do much less ofthis in con law than in fed courts.]

So the big question you ask is: since one can learn each ofthese lessons through other cases in which the substantive lawor outcome mattered (whether it's Prigg or McCulloch orwhatever), why teach them through Marbury? And my answeris 10 tradition (so they can speak the canon with otherlawyers), and 90% PRECISELY BECAUSE students willrarely have a horse in any of Marbury s doctrinal/interpretiveraces For example, I'd rather get them thinking about theirability to analyze texts differently than (better than) a Justicewhere their own views are likely NOT to be driven by a result-orientation, e.g., about slavery or about abortion, etc. Myexperience is that, if the first time they confront a problem oftextual interpretation or stare decisis, etc., it is in a contextthat matters to them, they are too often driven to support theirown intuitions on the matter at hand to be able to take a stepback and think about the interpretive question in the abstract.This is why during my UCLA days Julian Eule used to exhortme to teach the dormant commerce clause before the equalprotection clause, so one can run through all the issuesconcerning whether intent or effects matter, how do you assessintent or measure effects, etc., when students don't care aboutthe merits (e.g., a subsidy to milk producers, etc.) before they

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578 W KE FOREST L WREVIEW [Vol 38confront the same issues in the equal protection context wherethe merits tend to drive them to want to provide certainmethodological answers.I will say I spend far less time on Marbury than I did when Ifirst started teaching but I m not yet prepared to trim it tozip

Documents

8. Why I do not teach Marbury (Levinson, Inglês)