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Constitutional Conscience: The Moral Dimension of Judicial Decision

By H. Jefferson Powell | Go to book overview

NOTES

INTRODUCTION

l. 5 U.S. (l Cranch) 137 (1803). Modern American lawyers often treat Marbury as the case that established the power of judicial review, which is historically incorrect but only underlines the symbolic importance of Marshall's opinion. The best recent demolition of the historical legend is William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455 (2005).

2. 5 U.S. (1 Cranch) at 179-80. The oath of office currently prescribed for federal judges is materially unchanged. See 28 U.S.C. § 453. We can put to one side for present purposes the lively modern debate over just what Marshall thought the power of judicial review encompassed.

3. See, e.g., David A. Strauss, Presidential Interpretation of the Constitu- tion, 15 Cardozo L. Rev. 113,121 (1993) (describing Marshall's oath argument as “question-begging”: “An oath to uphold the Constitution raises—but does not answer—the question: what does the Constitution require?”); Alexan- der M. Bickel, The Least Dangerous Branch 8 (1962) (“Far from supporting Marshall, the oath is perhaps the strongest textual argument against him. For it would seem to obligate each of these officers, in the performance of his own function, to support the Constitution. On one reading, the conse- quence might be utter chaos—everyone at every juncture interprets and ap- plies the Constitution for himself. Or… it maybe deduced that everyone is to construe the Constitution with finality insofar as it addresses itself to the performance of his own peculiar function. Surely the language lends itself more readily to this interpretation than to Marshall's apparent conclusion, that everyone's oath to support the Constitution is qualified by the judi- ciary's oath to do the same, and that every official in government is sworn to support the Constitution as the judges, in pursuance of the same oath, have construed it, rather than as his own conscience may dictate.”). This critique is, in fact, an old one. See Eakin v. Raub, 12 Serg. & Rawle 330, 352 (Pa. 1825) (Gibson, J., dissenting) (“The oath to support the constitution is not peculiar to the judges, but is taken indiscriminately by every officer of

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