The Activist

The Activist
Lawrence Goldstone

Marbury v. Madison was a landmark case, to be sure, but it was also a very political decision that played fast and loose with the law. And while I suppose John Marshall was a kind of proto-activist, the fact is every judge makes new law simply by interpreting existing law, and even as “dead” a document as the U.S. Constitution (the preferred adjective of Antonin Scalia) has to evolve and adapt as the context for interpreting it changes. If nothing else, Lawrence Goldstone’s snapshot of the legendary Marbury case helps us to better understand the absurdity of “original intent” arguments of interpretation: determining whose intent mattered, and what that intent actually was, is a doomed enterprise even for the sharpest legal and historical minds.