Every law student learns the same story. John Marshall wrote Marbury v. Madison in 1803, established judicial review, and handed the Supreme Court the power to be the final word on what the Constitution means. The Court has been repeating that story ever since. There is one problem with it. It is not what the opinion says.
Read the actual holding. Marshall stated the rule plainly: “If a law be in opposition to the Constitution, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” That is a conflict-resolution rule. When a statute and the Constitution clash in a case before the Court, the Constitution wins. The Court applies the higher law to the case in front of it. That is judicial review. It is correct. It is grounded in Article VI.
What It Did Not Hold
Marbury did not hold that the Supreme Court’s interpretation of the Constitution is itself the supreme law of the land. It did not hold that when the Court says what the Commerce Clause means, or what the Second Amendment allows, every other branch of government is permanently bound by that reading. None of that is in the opinion.
The doctrine of judicial supremacy was not established in 1803. It finally came out in the open in 1958. Cooper v. Aaron is where the Supreme Court stopped being subtle about it. All nine justices signed the opinion, which declared that the Court’s interpretation of the Fourteenth Amendment was itself the supreme law of the land binding on every state official. Now go read Article VI. It names three things as the supreme law of the land: the Constitution itself, laws made in pursuance of it, and treaties. A Supreme Court opinion is not on that list. The Court put itself on the list in 1958 by announcing it belonged there. That is not interpretation. That is the Court rewriting Article VI without going through Article V.
The Oath Problem
Article VI contains the oath requirement. Senators, Representatives, state legislators, executive officers, and judicial officers are all bound by oath to support the Constitution. Every one of them. The same oath. The same document. Judicial supremacy requires you to read that provision as meaning the oath every officer takes is not really an oath to the Constitution directly. It is an oath to follow the Supreme Court’s interpretation. That is not what Article VI says.
Thomas Cooley put it plainly: acquiescence for no length of time can legalize a clear usurpation of power. Marshall held the Constitution above Congress. The Supreme Court holds the Court above everyone. Those are opposite positions. The full argument is in SCOTUS: The Judicial Coup, coming soon.