Marbury and the Retreat from Judicial Supremacy

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I. INTRODUCTION: EVER SINCE MARBURY

For many long years, conventional wisdom had it that Marbury v. Madison invented the modern practice of judicial review, by which we mean a practice of regularly submitting constitutional disputes to courts for final resolution in the context of ordinary litigation. Most lawyers and judges (and a surprising number of academics) apparently still hold this view--the Supreme Court itself being among the most persistent offenders in this regard. "No doubt the political branches have a role in interpreting and applying the Constitution," Chief Justice Rehnquist recently wrote, "but ever since Marbury this Court has remained the ultimate expositor of the constitutional text." (1) Rarely cited before the second half of the twentieth century, Marbury has become the keystone to the present Court's jurisprudence, the main source of its claim to supremacy and sometimes exclusivity in the domain of constitutional law and interpretation.

Those who follow historical scholarship have a different view of the case: one in which Marbury confirmed an existing practice that might be called "judicial review" but that bears little resemblance to what passes for review today and that certainly recognized nothing like the modern doctrine of judicial supremacy. (2) Yet the relationship between Marbury and the modern practice nevertheless remains important. Revisionist scholars have, for the most part, assumed that an idea like judicial supremacy was not yet available when Marshall wrote, reasoning that it emerged only in subsequent decades. (3) Marbury, in this conception, reflected an immature state in the development of judicial power that was fleshed out and refined with experience. Though many of the scholars who make this sort of argument are not particular fans of the judiciary, their work has nevertheless contributed to a new mythology in which judicial supremacy is treated as the logical and inexorable endpoint of a beneficent progress. (4)

In fact, as I will argue below, the claim that judges had special authority for interpreting the Constitution and that judicial decisions were meant to be final and binding on everyone was fully developed by the middle of the 1790s. Politically controversial from the start, this position was decisively rejected by the American public in the elections of 1800 and 1802. Read in context, Marbury is best understood as a retreat from judicial supremacy--a self-conscious backing away from the claim that constitutional interpretation is a uniquely legal and judicial responsibility. The current Supreme Court's reliance on Marshall's opinion for this very claim could hardly be more ironic.

II. POPULAR CONSTITUTIONALISM AND THE ORIGINS OF JUDICIAL REVIEW

The revisionist story of Marbury begins before the Constitution was adopted, before even Independence was declared, for colonial Americans brought with them from England a concept of constitutionalism that provided the crucial background conditions in which an idea of judicial review would develop. The critical feature of this eighteenth-century British constitution was that it rested on the consent of the governed. In American eyes, this meant the constitution was superior to any action by the government, which had no authority unilaterally to alter or abrogate its terms. The British constitution was law made by the people to govern their governors. It was interpreted and enforced by the people themselves, speaking through the full array of eighteenth-century devices available to register the will of the community: elections, petitions, conventions, juries, mobs, and the like. There was no notion of judicial review because courts, like every other agency of government, were the constitution's targets: the regulated. Final responsibility for interpreting and enforcing constitutional law necessarily lay outside the government, in the community itself.

This system, which I and others have elsewhere named "popular constitutionalism," rested on social conditions and practices whose significance becomes evident only in hindsight. …