ABSTRACT
A new democracy faces one of its biggest tests when the party in office loses an election. William Marbury’s lawyer had to prove that Marbury had been appointed properly and only the delivery of the commission had been bungled without mentioning that the bungler was the man presiding over the trial. In fact, the law John Marshall struck down in his decision was most likely constitutional. The decision was more clever than courageous, more a triumph of partisanship than statesmanship. Airbrush Thomas Jefferson was wrong and Marbury was right on the merits. Marbury should get his justice of the peaceship. Marshall’s decision said the Judiciary Act could not authorize the court to issue the order Marbury wanted, because the law gave the court powers beyond those mentioned in the Constitution. In a unanimous 1958 decision, the court attributed much of its enormous power to the precedent established in Marbury.
