now unfortunately cass gilbert, the architect, said no, they weren't talking about marbury at all.ut that's one of those, you know, the facts shouldn't interfere with a good story. [laughter] but magna carta was significant with respect to judicial review in another way. it was written down and that , became very important for us. if you read marbury against madison, marshall said is basically we have this text and we have this statute. and if the statute conflicts with this text, one or the other has to yield and we are enforcing this judgment. we're just deciding a simple case between marbury and madison but to do so, we have to see which text controls. and obviously the constitution trumps the statute. and there is no judicial review clause in the constitution. there is a provision that the court will decide cases in controversies. and all marshall said was, well if we have to decide a case we , we have to decide whether the statute conflicts with the constitution. and we have to decide what the constitution a trumps, so the fact that you're dealing with a written document was v

the constitutional discussion in marbury versus madison, which is merely a dissertation of the chief justice. it means stuff the justices want to talk about and it may be persuasive in future cases but it is not binding. he says the constitutional discussion continually cited by bench and bar as if it were settled law. that is the discovery doctrine in my judgment. why is it there? that is a story i don't have time for but you have to read the book. the first book. if you are interested in this, the answer is -- this is the argument that i make in the book -- it was to resolve a contemporaneous dispute between kentucky and mississippi over who owned militia lands as compensation for their service to the state of virginia during the american revolution. the governor of virginia had granted title to these vets but the chickasaws were there. what marshall had to do, and they were fighting after kentucky became an independent state, what marshall job's was after getting read of the speculators was to say, how can i solve the problem of these militia veterans? the governor of virginia has