Judicial review of unenumerated rights: does Marbury's holding apply in a post-Warren court world?

• Author: Eastman, John C.

Last year law schools across the country celebrated the 200th anniversary of the Supreme Court's landmark decision in Marbury v. Madison, which firmly entrenched judicial review as a fundamental component of our constitutional system of government--so fundamental, in fact, that adorning the east wall of the Justices' dining room in the building that is home to the Supreme Court of the United States are portraits of William Marbury and James Madison, side-by-side, facing each other as if in eternal combat. (1) At Chapman Law School, where I teach, we marked the occasion with a re-enactment of the oral argument in the case. University of Southern California Law Professor Erwin Chemerinsky (who is now a member of the faculty at Duke Law School) and I were opposing advocates. Fifth Circuit Court of Appeals Judge Jerry Smith, of Hopwood v. Texas (2) fame, played the role of Chief Justice, while a combination of Chapman law students and undergraduate legal studies majors filled out the bench.

Complete transcripts of the original oral argument are not available, of course, so we were able to exercise a little literary license to fill in the gaps. I was there to argue Madison's case, for example, when no one appeared on Madison's behalf during the original proceedings, and various executive and legislative branch officials would not even provide Marbury's lawyers with documentary evidence of his nomination, confirmation, appointment, and commission. (3) I appeared specially only to challenge the Court's jurisdiction, and I began the argument with a motion that the Chief Justice recuse himself; it was, after all, Marshall's own failure while still Secretary of State to deliver Marbury's midnight commission that generated the controversy in the first place.

"Chief Justice" Smith thundered a question to me from the bench: "Are

you accusing me of bias?" (Actually, the question from Judge Smith was quite tame, but I did imagine the responsive thunder that such a question might have evoked from Chief Justice John Marshall himself!). My response drew a predictable round of laughter from the crowd: "I would never make such an accusation, Mr. Chief Justice. But the mere appearance of bias is sufficient to warrant recusal here." "Chief Justice" Smith denied my motion--thankfully, as my Dean would undoubtedly have been upset with me were our star jurist to leave the bench in the opening moments of the argument--but I suspect Chief Justice Marshall would have denied the motion as well, despite his connection to the case and familial relationship with the real party in interest, President Thomas Jefferson, his cousin.

Why is it even arguably the case that Marshall should have recused himself?. Nothing in the Constitution explicitly bars one from serving as judge in a legal case or controversy in which he has an interest. On the contrary, Article III provides that "the judicial power of the United States shall be vested in one Supreme Court," and Marshall, as Chief Justice, was clearly a member of the Supreme Court. To be sure, Article III also specifies that judges "shall hold their Offices during good Behaviour," (4) and the Fifth Amendment guarantees that no one can be "deprived of life, liberty, or property without due process of law," (5) but neither of these clauses explicitly prevented the self-interested Marshall from presiding over the case, and there was at the time no positive law pronouncement, no statutory code of judicial ethics, that barred a biased jurist from taking the bench.

Yet, even absent an express statutory prohibition, I think most of us have the innate sense that a judge should not sit in judgment over a case in which he has a personal interest. Call it "bad" behavior for a judge, or a deprivation of the process that is due as a matter of fundamental fairness, but is it not evident that to pursue either inquiry necessarily requires that we look beyond the mere text of the Constitution, to some notion of justice that would help give substance to its provisions? It may well be, then, that the problem of judges ruling on unenumerated rights was with us long before Earl Warren ascended to the bench.

There is another problem underlying Marbury, at least as it has come to be interpreted, that needs to be addressed. Although in our re-enactment Professor Chemerinsky and I donned period dress--complete with wigs, knee-breeches, and buckled shoes!--the controversy over judicial review is as current as recent headlines. In July 2003, the Nevada Supreme Court ordered the state legislature to consider tax increases by simple majority vote, in violation of the two-thirds vote requirement of the Nevada constitution. The Court stated in the course of its opinion that it was the interpreter (apparently the only interpreter) of the state's constitution (6)--a broad expansion of Marshall's claim in Marbury itself. In August of the same year, a new controversy over the display of the Ten Commandments in public space erupted in Alabama, with federal judges pitted against a state Supreme Court Chief Justice, and both sides claiming the mantle of the Rule of Law. (7) And in November 2003, the Supreme Judicial Court of Massachusetts ordered the county clerks of that state to begin issuing marriage licenses to same-sex couples, despite its own acknowledgement that neither the Massachusetts Constitution nor statutory law had ever been understood to extend "marriage" in such a fashion. (8)

When a court's resolution of an issue before it is concededly grounded in neither constitutional text nor the original principles and practice of those who drafted it, can the claim of judicial supremacy that has been attributed to Chief Justice Marshall still be made without fundamentally altering the very nature of our republican form of government? Is the post-Warren Court's jurisprudence of unenumerated rights different not just in degree but in kind from the jurisprudence of its predecessor courts, and if so, to what effect? My aim in this article is to explore these thorny questions.

1. FROM MARBURY TO GUINN: HAS THE NATURE OF JUDICIAL REVIEW CHANGED?

   Before embarking on the principal inquiry, it is important to remember the precise claim that Chief Justice Marshall actually staked out in Marbury v. Madison. It was not, as many have apparently come to believe, that the courts are the only arbiter of constitutional questions. (9) Nor was it even that the Supreme Court is the final arbiter of all constitutional questions, not just for the judicial branch but for all three branches of government, though that was certainly urged by Marbury's counsel, who made the following argument to the Court:

   This is the supreme court, and by reason of its supremacy must have the superintendance of the inferior tribunals and officers, whether judicial or ministerial. In this respect there is no difference between a judicial and a ministerial officer. (10) Rather, Marshall made the much more limited, common-sense claim that, in a regime operating under a constitution by which only certain limited, enumerated powers were granted to the government, laws made in excess of that delegated authority could not be applied by judges bound by oath to uphold the Constitution. (11) The courts, then, were not only authorized to refuse to give unlawful statutes any effect in the cases before them, but were in fact obligated to take that course.

   Marshall was not the first to make such a claim, of course. Alexander Hamilton made it explicitly in Federalist 78:

   The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. (12) Although in his Federalist 78 discussion Hamilton seems to limit judicial review to express constitutional prohibitions such as those contained in Article I, sections 9 and 10 of the Constitution (rather than the limits inherent in the enumerated powers listed in Article I, section 8), others were not so stingy. Oliver Ellsworth, for example, expressly contended during the Connecticut ratifying convention that judicial review would also be available to enforce the limits of the powers granted to the national government:

   This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. (13) Indeed, the idea that judicial review would be used to insure conformity with all the Constitution's provisions--the limits of enumerated powers as well as the express prohibitions--seems to have been assumed by the delegates to the constitutional convention, even during a debate in which the convention rejected efforts to have the Supreme Court justices serve as a council of revision that would have a share in the President's veto power. George Mason noted, for example, that judges "could declare an unconstitutional law void." (14) Luther Martin, who opposed including Supreme Court justices in a council of revision, and James Wilson, who supported such a council, both agreed that judges, in their judicial capacity, would already have "a negative on the laws." (15) The debate over the council of revision was thus...