In his recent article in PS on Marbury v. Madison (“Marbury vs. Madison: How John Marshall Changed History by Misquoting the Constitution,” April, 2003 PS), Winfield H. Rose writes that Chief Justice John Marshall “intentionally” misquoted the Constitution. Beyond this, Rose writes, “The misquotation is the single most important part of the opinion in that it is the cornerstone upon which everything else rests” (211, italics in original). Given that Marbury is such a seminal case, it matters greatly whether Rose is right in his assertion. With all due respect, I think Rose is wrong: probably in his claim that Marshall intentionally misquoted the Constitution, and definitely in his claim that this misquotation is the cornerstone of Marshall's opinion. Furthermore, in attempting to support his argument, Rose misquotes Marshall (although, presumably, not intentionally)— or, at the least, he misrepresents and misapplies Marshall's words.

Rose's argument proceeds as follows: In Marbury, the Supreme Court struck down a part of the Judiciary Act of 1789 on the grounds that, by authorizing the Court to issue writs of mandamus (directives to government officers), the act expanded the Supreme Court's original (non-appellate) jurisdiction. Marshall argued that Congress could not alter the scope of the Court's original jurisdiction, since that jurisdiction is specified by the Constitution. Rose asserts that this argument was made possible only because Marshall “simply dropped” a constitutional phrase that empowers Congress to alter the Court's jurisdiction as it sees fit (211). As Rose writes, the Constitution outlines the federal courts' jurisdiction and then specifies certain types of cases in which the Supreme Court will have original jurisdiction. Immediately thereafter, it says, “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make.” But when Marshall quoted this passage in Marbury, he omitted the portion that says, “with such Exceptions, and under such Regulations as the Congress shall make.” This omission, according to Rose, made possible the Marbury ruling; it enabled the Court to strike down “a completely lawful exercise of congressional authority” (211).

Rose's accusation is of great significance, since Marbury was, of course, the first occasion on which the Court exercised judicial review. It was the case in which the Court first asserted the existence of what has become its most important power. Rose characterizes Marshall as “a political genius” who “had the nerve, the courage, to misquote the Constitution for his own purpose,” and who “had the skill to do it in such a way that has been largely unrecognized for 200 years” (213). He writes that through this exercise not of “lofty jurisprudence” but rather of “pure politics,” Marshall secured for the Court “the huge power of judicial review” (213). So is Rose right? Was the power of judicial review founded, as he asserts, on the basis of a “coup d' etat” (213)—on the basis of an extralegal “slight of hand” in the service of the perceived higher ends of increasing the Court's power (211)? This is a fundamental question to address.

Rose deserves credit for refocusing attention on the actual text of Marbury. His decision to do so is conducive to furthering important scholarly understanding. But does this ruling that Rose calls “the single most important decision of the United States Supreme Court” fundamentally rest on a misquotation of the Constitution? I think it clearly does not.

Rose is correct insofar as he argues that Marshall misquotes Article III, Section 2 of the Constitution. (Whether this misquotation was intentional, and whether it truly rises to the common-use meaning of “misquotation”—a term that generally implies either careless error or willful deceit—I will not belabor.) After the first paragraph of Article III, Section 2 defines the federal courts' jurisdiction, its subsequent paragraph reads,

When quoting this passage in Marbury, Marshall instead writes, As Rose notes, Marshall reversed the order of the clauses in the first sentence. However, saying, The Supreme Court shall have original jurisdiction in these cases is not substantively different from saying, In these cases, the Supreme Court shall have original jurisdiction. Similarly, Marshall omits almost all uses of capitalization in the section, omitting 17 uses of capitalization in all; and, as Rose notes, he adds the word “a” before “party.” But none of these changes alters the passage's substantive meaning.

The change that Rose most emphasizes is the one that Marshall makes at the end of the section: in his quotation, Marshall omits the words empowering Congress to alter the Court's appellate jurisdiction. Putting aside the question of how standards for quoting others' work have evolved—for example, whole sections of Justice Joseph Story's masterful Commentaries on the Constitution (1833) are direct quotations from Court opinions but are not always indicated as such—Marshall undeniably quotes the passage incorrectly. But is this misquotation central to his argument in the case? No, it is not. Why does he cut the quote short? Probably because the rest of the passage is peripheral to his point, which is that the Constitution specifically distributes the Court's original and appellate jurisdictions, and this must have been done for some reason.

Most tellingly, shortly thereafter Marshall demonstrates full awareness of the words he has omitted from his quotation. Just eight sentences later, and in the midst of the same general argument, he uses them almost verbatim. Rose argues that the most significant words Marshall omits from his quotation are, “with such Exceptions, and under such Regulations as the Congress shall make.” The exact words Marshall uses moments later are, “with such exceptions as congress might make.” Clearly, Marshall is not ignoring or neglecting this exceptions language. Unaccountably, Rose dismisses as insignificant Marshall's recognition of the exceptions language, and he does so in a lone sentence containing no elaboration. Yet it is hard to imagine how this subtle distinction between the Constitution's and Marshall's wording—or Marshall's decision to delay reference to this wording by a few lines—could constitute “the cornerstone” of this singular case.

Rose attempts to elicit further support from Marshall to buttress his argument. According to Rose, Marshall describes as meaningless these words he omits from his quotation. Rose writes that Marshall refers to this omitted wording as “mere surplusage … entirely without meaning” (211). Rose proceeds to disagree with Marshall, arguing, “The ‘subsequent part’ most definitely is not ‘mere surplusage without meaning’ because the framers put it there to allow Congress to adjust the jurisdictions of the Supreme Court as it saw fit” (211). Rose condemningly concludes that “for Marshall to dismiss their [the framers'] words as ‘mere surplusage’ was incorrect and improper” (211). But, in truth, Marshall does not dismiss the Framers' words.

Contrary to what Rose asserts, when Marshall uses this “mere surplusage” language, he is referring to the entire second paragraph of Article III, Section 2—not just to the part of that section which he had omitted. This becomes clear because Marshall says he is speaking of the “subsequent part of the section”: that which is subsequent to the part that “define[s] the judicial power.” The part of the section that “define[s] the judicial power” is the first paragraph of Article III, Section 2. The “subsequent part of ” that section is its second paragraph. By all textual accounts, Marshall is referring to the whole second paragraph—or, at the least, to its beginning (since that is the part that is immediately subsequent to the defining of the judicial power). Yet Rose maintains that Marshall is referring only to the wording at the end of that paragraph— to the wording that Marshall had not previously quoted. There is no evidence to suggest this and no reason to narrow Marshall's words, which refer to the “subsequent part of the section” and do not provide qualification.

But this is not the main problem with Rose's attempts to support his central argument. Rather, the main problem is that Rose mistakes Marshall's thoughts about the arguments made by Marbury's counsel for Marshall's thoughts about the Constitution; for when Marshall uses the “mere surplusage” language, he is clearly speaking of the arguments made by Marbury's counsel. Marshall writes, “It has been insisted, at the bar, that … the power remains to the legislature, to assign original jurisdiction to that [Supreme] court in other cases than those specified….” Marshall then responds to the counsel's argument with one of his own. He writes, “If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body [the legislature], it would certainly have been useless to have proceeded further than to have defined the judicial power….” To have gone further, writes Marshall, to have assigned the Supreme Court's original and appellate jurisdictions, would have been pointless. However, Marshall does not conclude, as Rose asserts he does, that “The subsequent part of the section is mere surplusage … entirely without meaning.” Rather, Marshall concludes that “The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction” (italics added). But Rose omits these last seven words from his quotation of Marshall, thereby fully obscuring the fact that Marshall is referring to counsel's arguments and instead making it appear that Marshall himself is describing a constitutional phrase as entirely meaningless verbiage. Marshall certainly does not say that this (or any other) part of the Constitution is meaningless; he says it is meaningless if one adopts counsel's construction. Marshall is clearly rejecting that construction, yet Rose mistakenly contends he is embracing it.

In sum, Rose simply drops a crucial phrase from Marshall's argument, profoundly mischaracterizing that argument as a result. Rose then relies on this mischaracterization to provide support for an otherwise unconvincing claim: that despite Marshall's explicit mention of the exceptions clause of Article III, Section 2, his apparently insignificant omission of it a few lines earlier is “the single most important part of ” (211) the “single most important decision” (209) in the history of the Supreme Court.

In truth, Marshall's argument does not rest on his omission of constitutional language; otherwise stated, it does not rely on a misquoting of the Constitution. It relies instead on his claim that the exceptions clause, as worded, does not allow Congress to extend the Court's original jurisdiction; and on his corresponding claim that Congress's grant of power to the Court to issue writs of mandamus is an extension of that jurisdiction.

It appears that part of the reason why Rose is so convinced Marshall must have ignored the exceptions clause is that Rose thinks this clause “gave Congress the power to adjust the original and appellate jurisdictions of the Supreme Court” (211, italics added). But the exceptions clause authorizes Congress to adjust only the Court's appellate jurisdiction, not its original—or, at the least, it is only the appellate jurisdiction over which Congress is given explicit control. As was previously indicated, paragraph one of Article III, Section 2 lists all the types of cases that will be heard by the federal courts. Paragraph two of that same section begins by specifying the Court's original jurisdiction: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction” (italics added). Having thus specified which types of cases the federal courts will hear, and which of these will be heard by the Court as a matter of original jurisdiction, Section 2 concludes by speaking of the cases in which the Court will not have original jurisdiction; and it is only in reference to these cases that the exceptions clause appears: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make” (italics added). Congress's ability to make exceptions to the Court's jurisdiction refers only to “the other Cases before mentioned”—in other words, only to those in which the Court's jurisdiction will not be original. If the exceptions clause were instead to refer both to the Court's appellate and original jurisdictions, as Rose mistakenly asserts, then there would have been no dispute about whether Congress could have manipulated these jurisdictions as it saw fit. But if that had been the goal, then that idea could have been stated much more succinctly, by using language such as, Congress shall specify the Court's original and appellate jurisdictions, both as to law and fact, in lieu of the entire second paragraph of Article III, Section 2—and the Founders were not generally guilty of verbosity in their writing of the constitutional text.

Rose, in advancing this part of his argument, quotes a portion of Marshall's statement in which the Chief Justice says, “It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.” But Rose does not quote the immediately subsequent passage, which applies that stated principle directly to the exceptions clause. In this immediately subsequent passage, Marshall argues that the exceptions clause must be read as not impacting the Court's original jurisdiction:

Far from shielding the exceptions language from view as he explains his construction of this crucial passage, Marshall explicitly cites it. Far from relying on his earlier misquotation of this passage, Marshall does not even reference it. Regardless of whether or not one finds Marshall's argument persuasive, it assuredly does not rest on a refusal to recognize the exceptions language's existence—nor on a misquoting of the Constitution.

There is one further problem with Rose's claim that “the Constitution gave Congress the power to adjust the original and appellate jurisdictions of the Supreme Court via the exceptions and regulations clause and Marshall removed it because doing so enabled him … to establish judicial review, his greatest legacy” (211). This further problem is, establishing judicial review required more than merely exercising judicial review; it required providing an argument to support the legitimacy of exercising that power. Marshall indicates this in his opinion. After concluding that the law in question “appears not to be warranted by the constitution,” Marshall transitions into the final, most crucial part of his opinion, in which he addresses “[t]he question, whether an act repugnant to the constitution, can become the law of the land” and whether courts are bound—or even permitted— to apply such an act.

This argument, which articulates and supports the Court's power to exercise judicial review for the first time ever in a Supreme Court ruling, is the truly central part of Marshall's opinion. It is the part that caused us to commemorate Marbury's 200th anniversary last year. Marshall's argument in support of judicial review is persuasive, and it is rooted both in the constitutional text and in a solid understanding of the nature of a written (and thereby limited) constitution. Nowhere is it more persuasive than in the following words:

In other words, in such an instance of a law's clear violation of the Constitution, something must give: either the Constitution or the law. Under a written constitution, it seemingly must be the latter. And if it is to be the latter, then a judge effectively has no choice: he or she must strike down (i.e. refuse to apply) the offending law. Those who question the legitimacy of judicial review have yet to provide an effective refutation of this argument. The argument is an elaboration on what Marshall means elsewhere in Marbury when he proclaims that the “theory” asserting that the judiciary may void clearly unconstitutional laws is “essentially attached to a written constitution.”

Marshall's reference to a preexisting theory provides partial evidence to combat many modern writers' erroneous implications that judicial review is largely Marshall's personal creation. We should remember that Marshall was by no means the only justice on the Marbury Court: the opinion was unanimously approved by a Court whose esteemed membership included, among others, a Constitutional Convention delegate (William Paterson) and a Washington (George's nephew, Bushrod). Furthermore, Marshall's argument in Marbury on behalf of judicial review is essentially a restatement of Publius's (Alexander Hamilton's) argument in Federalist 78, which in turn is a thorough defense of the support for judicial review communicated (with little opposition) at the Constitutional Convention by James Madison, Elbridge Gerry, Rufus King, James Wilson, Luther Martin, George Mason, and Gouverneur Morris (Farrand 1911). The consensus expressed in all three places—in the Convention, in Federalist 78, and in Marbury—was that judicial review (not yet named as such) both would and should be exercised, though always with great deference to representative legislatures and never as a means to promote particular or general policy goals. The principles of constitutional republicanism were thought to require this; for if judges do not exercise judicial review to strike down clearly unconstitutional laws, then (by applying those laws) they aid legislatures in their violations of constitutional forms, while if judges exercise judicial review to promote their own policy goals, then they both undermine constitutional forms (which call for them to adjudicate, not to legislate) and deprive the people of their collective right to govern themselves. Marshall's central argument espouses judicial review only in this non-policy-making vein. Thus, to the extent that his argument is the foundation of judicial review, it is the foundation only for judicial review of this sort. To describe Marshall's opinion as being based on a clever and willful misquoting of the Constitution is to describe it inaccurately while missing this more fundamentally important point.