This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged in the 1760s—cases about the constitutionality of Parliament’s 1765 Stamp Act. It will begin with a portrayal of mid-century practices that were a prerequisite to this emergence of judicial review. Part II will discuss Marbury itself and its companion case, Stuart v. Laird. Part III will compare political decisions in the past that have been overturned with those that have endured in order to formulate a theory about fragility. Part IV will turn to the political nature of the two recent decisions. Part V will inquire, in light of the theory from Part III, into the likelihood that the recent decisions will endure.