The Marbury of 1803 and the modern Marbury.

AuthorSnowiss, Sylvia

Of all the commentary on Marbury v. Madison, my favorite is that of Alexander Bickel likening the case to a tourist attraction:

It is ... a great historic event, a famous victory.... It is hallowed. It is revered. If it had a physical presence, like the Alamo or Gettysburg, it would be a tourist attraction; and the truth is that it very nearly does have and very nearly is. (1) Marbury's famous victory is easy to identify--it is the authority of courts to overturn legislation held to be unconstitutional. And Bickel's likening of this victory to a military one is particularly appropriate. Marbury partakes of that characteristic of military victories that they have no necessary association with a claim of right. Judicial authority over unconstitutional legislation is accepted despite the claims made in Marbury not because of them. The chief, and fatal, defect in Marbury's defense of judicial review is its failure to ask, let alone to answer, why judicial determinations of unconstitutionality are to be the authoritative ones. Marbury is coherent only by assuming what has to be proven. (2)

Although its victory is indisputable, it is nevertheless overstatement to call Marbury hallowed or revered. This victory is circumscribed--judicial authority over legislation occupies a place somewhere between acceptance and celebration. I have joined the discussion of judicial review and its problems with the claim that there are two distinct Marburys, that of 1803, and the modern one that developed over the course of the nineteenth century. (3) The Marbury of 1803 is as internally coherent as the modern one is defective. The deepest difference between the two is that the former understood the Constitution, or fundamental law, to be different in kind as well as degree from ordinary law, whereas the latter understands it to be supreme, ordinary law. The Marbury of 1803, accordingly, defended a judicial authority different in essential properties from the one we have long known.

I will here give an abridged and I hope improved version of the argument, incorporating responses to commentary on it. As will become evident, some of the criticism is justified and some reflects misreading. Retrieving the Marbury of 1803 and the fundamental law on which it rested is not aimed at reinstituting either. That Marbury addressed problems that disappeared very early in American public life and has long been irrelevant to any public concern. The status of fundamental law is more complicated. It is not clear that a return to the original distinctions is desirable, and even if it were, it is now probably impossible. What is more important is that differences in kind between fundamental law and ordinary law persist within the modern Marbury and the constitutional law associated with it. The attempt to restrain sovereign power is and must be different in kind from restraint on individual behavior or even delegated power. These differences have not gone unrecognized, but they are seen through the distorting lens of supreme ordinary law. Loss of access to the original distinctions is reflected in the blind alleys that populate constitutional theory. Retrieval will not solve the problems addressed by that theory, but it is a necessary preliminary to better theory. Without it we are not likely to get beyond the ad hoc political adjustments we have always relied upon to keep constitutional law a viable institution.

The Marbury of 1803, to continue Bickel's language, marked a relatively uninteresting and minor victory, made so by the fact that its opponents were then not particularly powerful. It was a victory over legislative willfulness and the doctrine of legislative omnipotence. Legislative willfulness had been briefly threatening in the aftermath of American independence but was substantially defeated about the same time as adoption of the Constitution of 1789. Legislative omnipotence was universally considered inapplicable in the American states but at independence had not been expressly or formally rejected. Its inapplicability rested in the principles of limited, republican government upon which government was reconstituted after the break from England, and in the extraordinary consensus on these principles. American republicanism, in contrast to English circumstances, located sovereignty in the people, not the legislature, and that sovereign was capable of limiting all branches of government including the legislature. The substance of limited government inhered in rights and limits established in some combination of common and natural law, and written constitutions. With the routinization of extraordinarily adopted written constitutions limited government was understood to be connected to such constitutions. Initially, however, it was the explicitness of American fundamental law, not its commitment to writing that imparted to it its status as supreme, binding law. The significance of its commitment to writing was as testimony to its explicitness. (4)

The Marbury of 1803 echoed the successful defense of judicial authority over legislation that had been made in the 1790s. This defense sought to enlist the judiciary in support of existing principles of limited government widely feared to be in danger from the excesses of the newly independent, wholly republican, state legislatures. Although there was significant receptivity to a judicial check on unconstitutional legislation, refusal to enforce duly enacted legislation was still an irregular action, outside conventional judicial authority, and explicitly rejected by Blackstone, the leading legal authority in the American states. The 1790s defense met and effectively silenced objection to such refusal. The successful argument was first made by James Iredell in 1786 (5) and repeated in a letter to William Spaight, a delegate to the Constitutional Convention, dated August 26, 1787, (6) while the Convention was still sitting. Iredell's argument was repeated by Alexander Hamilton in Federalist 78, (7) James Wilson in Lectures on the Law, (8) Spencer Roane and St. George Tucker in Kamper v. Hawkins, (9) and William Paterson in Van Home's Lessee v. Dorrance, (10) among others. Each formulation, including that in Marbury, made the argument somewhat differently, but these differences were of no importance with respect to the central issue. Judicial authority was defended in a two-part argument that started with the American rejection of legislative omnipotence. In Marbury, this was the insistence that an unconstitutional act was void. Today we read this part of the opinion as one of its defects, either begging the real question of judicial review or as trivial. Originally it was a statement of essentially uncontested but important new ground--enunciation of the American form of limited government in which the legislature was explicitly and literally bound. It was a statement registering the possibility of an unconstitutional act--a possibility incompatible with legislative omnipotence--and the consequence that such an act was void.

This uniquely American form of limited government was the basis for resolution of the second and more contested question of whether judges could refuse to enforce any duly enacted legislation, specifically the unconstitutional act whose existence and invalidity had just been established. Continuing its reliance on the 1790s argument, the Marbury of 1803 drew from the invalidity of unconstitutional acts, judicial authority to refuse to enforce them. The assigned judicial responsibility to say what the ordinary law is precluded a court from enforcing an act that in its conceded unconstitutionality was void or not law.

The Marbury of 1803 did not defend, and did not purport to defend, judicial authority to determine unconstitutionality in the first place. Its referent was not so much the hypothetical examples of concededly unconstitutional acts given in Marbury, but the real ones associated with the excesses of the state legislatures at independence. Marbury's examples, in their irrelevance to the politics and practice we know, are another of its supposed defects. In the aftermath of independence the concededly unconstitutional act was thought to pose a problem of sufficient magnitude to threaten the viability of republican government.

The most important aspect of the Marbury of 1803 was its foundation in the differences in kind between fundamental and ordinary law. Marbury's assertion that it is "emphatically the province and duty of the judicial department to say what the law is" was limited to ordinary law, just as an assertion that the province and duty of the legislative department is to make the law would not be thought to include the law of the constitution or to require articulation of that distinction. "To say what the law is" is the judicial responsibility for finality in the application and interpretation of common and statutory law under conventional separation of powers. Finality carries with it significant authority, including a law-making component that blurs the boundaries of separation of powers, but it does not convey judicial supremacy as that problem presents itself in constitutional law. The judiciary, as Judge John Gibson rightly noted in Eakin v. Raub, although formally equal to the other branches, is effectively subordinate to the legislature, in that the power to make the law is inherently superior to the power to apply it. (11) Even the finality of interpretation that is inseparable from application of ordinary law is subject to revision by prospectively operating legislation. In the Marbury of 1803 this judicial responsibility for finality with respect to ordinary law, to repeat its key contention, authorized and even required judges to refuse to enforce an act that, in its conceded unconstitutionality, was void or not law.

The clearest formulation of this 1790s argument was that of St. George Tucker in Kamper v. Hawkins. (12) Tucker started...

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