In his April 2003 PS: Political Science and Politics
article “Marbury v. Madison: How
John Marshall Changed History by Misquoting the Constitution,”
Winfield H. Rose presents an argument in which Chief Justice
Marshall knowingly distorted the meaning of the Constitution for
strategic gain. The strategic gain was the creation of judicial
review (the power of the Court to invalidate acts of other branches
of government as violative of the Constitution). The key means to
achieve this goal was to intentionally misquote Article III in the
Court's most famous of cases, Marbury v.
Madison (1803). Rose offers his argument as the
product of a new discovery (that of detecting Marshall's
misquotation), and this discovery as the product of a fresh reading
of the case. The reading is a “fresh” one because Rose looks anew at
the actual text of the decision and does not rely on the accepted
“textbook wisdom” of the case. He calls us rightly to revisit the
case and follow him beyond the “conventional textbook wisdom”
regarding the case. However, Rose's analysis fails in the end
precisely because it remains so wedded to the textbook wisdom on
Marbury and judicial review that he advises
against.