Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview

1
The Doctrine of Judicial Review: Mr. Marshall, Mr. Jefferson, and Mr. Marbury

WARREN E. BURGER Chief Justice, Supreme Court of the United States

Lord Bryce once observed:

No feature of the government of the United States has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration, and been more frequently misunderstood, than the duties assigned to the Supreme Court and the functions which it discharges in guarding the Ark of the Constitution. 1

I should add that in some quarters, the Supreme Court's guardianship of that Ark probably has received more guarded praise than in distant places where its impact is purely theoretical.

Lord Bryce, of course, had reference to the doctrine of judicial review, sometimes described as the doctrine of judicial supremacy, in the interpretation of constitutional terms and principles. . . .

It is helpful to an understanding of this subject to examine it in the setting in which Marbury v. Madison was decided in 1803 with all its momentous consequences for our country and to suggest to you that this great case had its antecedents in our colonial experience, and its taproots in the declarations of fundamental rights of Englishmen back to Magna Carta.


Marbury v. Madison: ACT 1, THE SETTING

Very early in the history of our country the colonial experience of living un-

____________________
This chapter is excerpted from the Presidential Address delivered by Chief Justice Burger to the Bentham Club, University College, London, England, on 1 February 1972.

-7-

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