"The Irrepressible Myth of Marbury"

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    This question is mainly for Dr. Gutzman, but I would welcome comment from Dr. McClanahan and Dr. Woods (or anyone else).

    I came across this article at the Tenth Amendment Center: The Myth of Marbury v. Madison, which refers to a 2004 paper by Michael Paulsen, titled “The Irrepressible Myth of Marbury”. Paulsen’s argument, as I understand it, is that the idea that “judicial supremacy,” i.e., that not only can the Supreme Court determine what the Constitution means, but that its interpretation is final, is not at all what John Marshall meant in Marbury. Rather, a correct reading of Marshall’s opinion indicates that the Supreme Court is merely one of three co-equal branches of government, and that the Court, under the Constitution, can “say what the law is,” but its interpretation is not final, and that each of the other branches also has the power to interpret the Constitution. Therefore, the President, for example, may refuse to enforce what he or she finds to be an unconstitutional law. Paulsen’s paper even goes further and he finds a justification for nullification and interposition in the logic of Marbury.

    Have you read this, and what are your thoughts on this? Have we been reading Marbury wrong?


    Thank you for the link. I had not read this until today. I think Paulson makes a great case, and yes, the president is only obligated to enforce constitutional laws. Congress also has an obligation to only pass constitutional legislation and the during the ratification debates several proponents of the Constitution argued that should the general government violate the Constitution, the States would be “powerful enough to check it,” in other words nullify unconstitutional legislation. James Wilson essentially made such a statement in his famous State House Yard Speech of Oct 1787.

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