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38 Wake Forest L. Rev. 375 (2003)
The Rhetorical Uses of Marbury V. Madison: The Emergence of a Great Case

handle is hein.journals/wflr38 and id is 385 raw text is: THE RHETORICAL USES OF MARBURY v. MADISON: THE EMERGENCE OF A GREAT CASE Davison M, Douglas* Marbury v. Madison is today indisputably one of the great cases of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury has not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth- century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of judicial review became far more controversial. Proponents of judicial review seized upon the Marbury decision to legitimize their claims for an expansive conception of the doctrine-particularly after the Court engaged in an extraordinarily controversial exercise of judicial review in 1895 in the Pollock decisions declaring the newly enacted federal income tax unconstitutional. In the process, Marbury became, for the first time, a great case-as measured by its treatment in judicial opinions, legal treatises, and casebooks- a moniker that would have been ill applied to the decision for most of the nineteenth century. Marbury's significance today cannot be attributed to the pathbreaking character of the decision. Rather, Marbury became great because proponents of an expansive doctrine of judicial review have needed it to assume greatness. During the past year, several law schools have held conferences to commemorate the bicentennial of the Supreme Court's 1803 decision in Marbury v. Madison. The prevalence of these * Arthur B. Hanson Professor of Law and Director, Institute of Bill of Rights Law, William and Mary School of Law. I thank Jennifer Becker, Sherri Campbell, Michael Gentry, and Shawn Gobble for their research assistance, and Neal Devins, Charles Hobson, and Michael Klarman for their helpful comments on an earlier draft of this Article. 1. 5 U.S. (1 Cranch) 137 (1803). These law schools include Georgetown, George Washington, John Marshall, Maryland, Michigan, Tennessee, and Wake Forest.

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