Marbury and the retreat from judicial supremacy.

• Jurisdiction: United States
• Author: Kramer, Larry D.
• Date: 22 June 2003

1. INTRODUCTION: EVER SINCE MARBURY

   For many long years, conventional wisdom had it that Marbury v. Madison invented the modern practice of judicial review, by which we mean a practice of regularly submitting constitutional disputes to courts for final resolution in the context of ordinary litigation. Most lawyers and judges (and a surprising number of academics) apparently still hold this view--the Supreme Court itself being among the most persistent offenders in this regard. "No doubt the political branches have a role in interpreting and applying the Constitution," Chief Justice Rehnquist recently wrote, "but ever since Marbury this Court has remained the ultimate expositor of the constitutional text." (1) Rarely cited before the second half of the twentieth century, Marbury has become the keystone to the present Court's jurisprudence, the main source of its claim to supremacy and sometimes exclusivity in the domain of constitutional law and interpretation.

   Those who follow historical scholarship have a different view of the case: one in which Marbury confirmed an existing practice that might be called "judicial review" but that bears little resemblance to what passes for review today and that certainly recognized nothing like the modern doctrine of judicial supremacy. (2) Yet the relationship between Marbury and the modern practice nevertheless remains important. Revisionist scholars have, for the most part, assumed that an idea like judicial supremacy was not yet available when Marshall wrote, reasoning that it emerged only in subsequent decades. (3) Marbury, in this conception, reflected an immature state in the development of judicial power that was fleshed out and refined with experience. Though many of the scholars who make this sort of argument are not particular fans of the judiciary, their work has nevertheless contributed to a new mythology in which judicial supremacy is treated as the logical and inexorable endpoint of a beneficent progress. (4)

   In fact, as I will argue below, the claim that judges had special authority for interpreting the Constitution and that judicial decisions were meant to be final and binding on everyone was fully developed by the middle of the 1790s. Politically controversial from the start, this position was decisively rejected by the American public in the elections of 1800 and 1802. Read in context, Marbury is best understood as a retreat from judicial supremacy--a self-conscious backing away from the claim that constitutional interpretation is a uniquely legal and judicial responsibility. The current Supreme Court's reliance on Marshall's opinion for this very claim could hardly be more ironic.

2. POPULAR CONSTITUTIONALISM AND THE ORIGINS OF JUDICIAL REVIEW

   The revisionist story of Marbury begins before the Constitution was adopted, before even Independence was declared, for colonial Americans brought with them from England a concept of constitutionalism that provided the crucial background conditions in which an idea of judicial review would develop. The critical feature of this eighteenth-century British constitution was that it rested on the consent of the governed. In American eyes, this meant the constitution was superior to any action by the government, which had no authority unilaterally to alter or abrogate its terms. The British constitution was law made by the people to govern their governors. It was interpreted and enforced by the people themselves, speaking through the full array of eighteenth-century devices available to register the will of the community: elections, petitions, conventions, juries, mobs, and the like. There was no notion of judicial review because courts, like every other agency of government, were the constitution's targets: the regulated. Final responsibility for interpreting and enforcing constitutional law necessarily lay outside the government, in the community itself.

   This system, which I and others have elsewhere named "popular constitutionalism," rested on social conditions and practices whose significance becomes evident only in hindsight. Chief among these was a distinction between law and politics that ordinary citizens as well as community leaders could recognize and understand and that both groups took seriously. In addition, the world of the eighteenth-century constitution was one in which intense constitutional conflict was rare--a product, among other things, of the narrowness of fundamental law and the limited role of government. What conflicts arose were kept in check by a "well born" elite to which ordinary citizens deferred. Deference was crucial not only in keeping popular action under control, but also in helping contemporaries distinguish legitimate extralegal opposition from an ordinary riot. Notwithstanding its popular basis, the British constitution was a fundamentally conservative institution, a means for ordinary people guided by their social betters to preserve customary ways of doing things and to counter abuses by the Crown.

   The American Revolution arose out of a series of disagreements over the meaning and proper interpretation of this constitution. It was, in essence, a rebellion fought to preserve an existing understanding of constitutionalism, an understanding Americans did not suddenly decide to abandon or repudiate upon achieving independence. Written constitutions took their place within and alongside those portions of the existing constitution that had not necessarily been abrogated by the break with Great Britain, and substantive doctrines and arguments from before the Revolution continued to apply. More important for present purposes, everyone took for granted that responsibility for constitutional interpretation and enforcement remained with the community.

   All that notwithstanding, the Revolution inevitably produced changes that exerted pressure on existing practices of constitutional law, and from these emerged a first approximation of judicial review. Suddenly America's legislatures found themselves doing far more than before: a product not only of Britain's withdrawal, but also of war and of new demands for government action in a variety of domains. Together with the greater explicitness of written constitutions, this created many more opportunities for constitutional conflict than had formerly existed. Plus, the process of upholding the British constitution against the claims of Parliamentary sovereignty had deepened Americans' commitment to a constitution's basis in popular sovereignty--a reaction enhanced in turn by the experience of drafting new constitutions in the states. Infused with Revolutionary fervor, the American understanding of constitutionalism became less conservative and more reformist in nature, again increasing the likelihood of constitutional conflict.

   The men who crafted America's new constitutions offered a variety of devices to handle the increased volume of constitutional law and disagreement. These included everything from provisions for formal amendment to councils of censors and councils of revision to periodic conventions of the people, executive vetoes, and more. A few people suggested a role for courts. Reasoning from within the still unchallenged premises of popular constitutionalism, they argued that because a constitution embodied the voice of the people, its obligations and limitations were binding on every branch of the government. A legislature that enacted a law inconsistent with constitutional commands was acting unlawfully; it might be the people's responsibility to mete out punishment, but a court that enforced this law was making itself an accomplice to the same illegal act. By instead refusing to enforce unconstitutional laws, judges could serve not only as the people's faithful agent but also as their proxy, supplying a peaceful remedy that might make popular action from the community unnecessary.

   The argument, in other words, was that judges no less than anyone else should resist unconstitutional laws. This obligation did not arise from any special competence that judges possessed as judges, and it certainly was not based on the notion that a constitution was just so much law subject to judicial control. It was, rather, simply another instance of the right and responsibility of every citizen to oppose unconstitutional government action.

   This embryonic version of judicial review played only a small role in the Constitutional Convention of 1787 and virtually none in the subsequent debate over ratification. The idea was novel and not widely publicized, and it had proved controversial and unreliable in the few cases in which it had been raised. The Framers did assign judges a role policing unconstitutional state laws--something acceptable to opponents of a strong federal government precisely because a judicial check was thought to be weak and tenuous--but they otherwise paid scant attention to judicial review. When it came to policing federal action, the Founders focused on more established, better known ways of preserving constitutional limits, such as a council of revision (which they rejected) and an array of now-familiar political checks including bicameralism, federalism, and an executive veto.

   None of this is surprising once we recognize that the movement to adopt a new Federal Constitution was not a rejection of popular constitutionalism. On the contrary, the Framers and Founders took popular constitutionalism for granted and were no more likely to question it than we today would be to question our own commitment to a very different notion of democracy. Even this formulation is misleading if it implies that something was up for grabs, for the principles of popular constitutionalism were so widely shared among the Revolutionary generation as to be largely invisible. They were background assumptions, a shared baseline from which reformers developed their ideas for reform.

   The new Constitution was thus an effort made from within a system...