The Marbury of 1803 and the Modern Marbury
Snowiss, Sylvia, Constitutional Commentary
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. …