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Judicial Review of Unenumerated Rights:
Does Marbury’s Holding Apply in a Post-Warren Court World?
By John C. Eastman
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This year marks the 200th anniversary of the Supreme Court’s landmark decision
in Marbury v. Madison,
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which firmly entrenched judicial review as a fundamental
component of our constitutional system of government—so fundamental, in fact, that
adorning the East wall of the Justices dining room in the building that is home to the
Supreme Court of the United States are portraits of William Marbury and James
Madison, side-by-side, facing each other as if in eternal combat.
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At Chapman Law
School, where I teach, we marked the occasion with a re-enactment of the oral argument
in the case. U.S.C. Law Professor Erwin Chemerinsky and I were opposing advocates.
Fifth Circuit Court of Appeals Judge Jerry Smith, of Hopwood v. Texas
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fame, played the
role of Chief Justice, while a combination of Chapman law students and undergraduate
legal studies majors filled out the bench.
Complete transcripts of the original oral argument are not available, of course, so
we were able to exercise a little literary license to fill in the gaps. I was there to argue
Madison’s case, for example, when no one appeared on Madison’s behalf during the
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Professor of Law, Chapman University School of Law, and Director, The Claremont Institute
Center for Constitutional Jurisprudence; J.D., The University of Chicago Law School; Ph.D.,
M.A., The Claremont Graduate School; B.A., The University of Dallas.
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5 U.S. (1 Cranch) 137 (1803).
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See, e.g., David F. Forte, Marbury’s Travail: Federalist Politics And William Marbury’s
Appointment as Justice of the Peace, 45 C
ATH
. U. L. R
EV
. 349, 350 (Winter 1996).
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236 F.3d 256 (5th Cir. 2000).
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