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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:
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

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