John Marshall's Selective Use of History in Marbury v. Madison *
This chapter shows that John Marshall disregarded precedent in order to take advantage of the unique opportunity Marbury presented to establish the judiciary as an independent and equal branch of government without risking a confrontation with the executive. It examines Chief Justice Marshall's opinion in Marburyv.Madison and argues that Marshall misused precedent to support his controversial conclusions. Chief Justice Marshall is both praised and criticized for the clever selection and ordering of issues that enabled him to assert judicial power over both the legislative and executive branches, while simultaneously insulating the controversial assertions from confrontation and defiance. The chapter discusses the confusion in Chief Justice Marshall's treatment of precedent in Marbury, it is necessary to recount briefly the history of the disabled veterans cases. Marshall's "case" involved a motion for a writ of mandamus from the Supreme Court to the Secretary of War.