Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World?

By Eastman, John C. | Harvard Journal of Law & Public Policy, Summer 2005 | Go to article overview

Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World?


Eastman, John C., Harvard Journal of Law & Public Policy


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?

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World?
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.