Constitutional rules, constitutional standards, and constitutional settlement: Marbury v. Madison and the case for judicial supremacy.

AuthorAlexander, Larry

As we mark the 200th anniversary of Marbury v. Madison, (1) it should be noted that huge forests have been levelled and tons of ink spilled in analyzing, interpreting, and debating the merits of John Marshall's opinion in that case, and that the best forecast is to buy pulp and ink in the commodities market. The Marbury literature shows no signs of abating, and not just because of the spate of anniversary conferences and symposia. As other nations consider the merits of American-style judicial review--and as we ourselves, with every Supreme Court decision striking down legislation that we believe to be constitutionally valid, continually reassess its merits and provenance--Marbury scholars will have plenty of demand for their wares.

The Marbury debate, of course, proceeds on different levels. There is a huge and rich literature on the merits and implications of the Marshall opinion apart from its assertion of judicial review. Was Marshall's interpretation of the Original Jurisdiction clause--that Congress could not alter the Court's original jurisdiction--correct (and how does it square with, say, Cohens v. Virginia (2))? Do appointments to federal office really vest after the signing and sealing of a commission but before the commission's delivery? Is a suit seeking a writ of mandamus always an invocation of original jurisdiction, and is that true as well of suits seeking, say, writs of habeas corpus? (3) Did the Judiciary Act of 1789 really purport to enlarge the Court's original jurisdiction? (4) And so on.

Moreover, there is a less well-developed but hopefully growing literature on other aspects of Marbury. Why did Marbury sue in the Supreme Court instead of in some lower court? (5) And why didn't Marbury himself pursue his federal magistrate's position after losing in the Supreme Court, perhaps by attaching Marshall's opinion to his petition? Indeed, why did Marbury need the commission--the actual piece of paper, that is--after having had Marshall declare him to have been legally appointed to his office?

But, of course, the main body of the vast Marbury oeuvre concerns judicial review. As everyone in Con Law 101 learns, in Marbury John Marshall held that the Supreme Court could declare an act of Congress to be unconstitutional and refuse to enforce it or otherwise give it effect. That holding has been--and will undoubtedly continue to be--debated from two basic vantage points. One debate focuses on the constitutional legitimacy of judicial invalidation of congressional acts. Is judicial review provided for in the Constitution, and if so, where? Or did the Court just run it up the flagpole to see if we would all salute? In other words, is judicial review pre or meta-constitutionally legitimate--because, like the Constitution itself, we have accepted it as such--even if it is not in the Constitution of 1789?

The other great debates regarding judicial review are over its scope and force. Marbury invalidated a congressional act that unconstitutionally enlarged the Court's own jurisdiction. So one could read it quite narrowly. But, of course, judicial review has been extended to every constitutional question raised by the activities of any governmental actor, state or federal, with the exception of that rarefied set of constitutional questions known as "political questions," constitutional questions deemed by the Court to be committed to some nonjudicial body. (When will we know that we have a real "political question"? Only in cases where the Court identifies a constitutional limit on some other governmental actor's permissible range of action, announces that, in its opinion, that actor has transgressed that constitutional limit, but concludes that it is the actor's interpretation of the limit rather than the Court's that the Court will and should follow. This shows why some commentators are doubtful about the existence of political questions. (6))

Although the debate over the proper scope of Marbury rages on, I believe that the better arguments are those that find it assumed by the Framers and probably validly inferred from the text. (7) Article III's reference to "cases arising under the Constitution," although susceptible to counter-Marbury interpretations, (8) surely is arguably read to countenance judicial review of all constitutional cases, including those dealing with congressional power. And the "state judges" portion of Article VI seems to contemplate state judicial determinations of the validity of congressional acts as a predicate to deeming those acts supreme over inconsistent state laws. (9) Putting these textual passages together with the strong evidence that the Framers contemplated judicial review (10) makes the case for judicial review's broad scope satisfy for me the "more probable than not" standard of proof.

The debate over Marbury's force is somewhat more episodic than the debate over its scope. The debate over its force is no doubt the reason I've been invited here, for it's the only Marbury debate on which I have uttered an opinion in public.

On the weakest plausible reading of Marbury, the Court's decisions on constitutional issues are binding on other officials only with respect to the cases in which those decisions are reached. Those decisions settle...

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