May 7, 2010

THERE'S A REASON LAWYERS ARE SO FOND OF SLIPPERY SLOPE ARGUMENTS:

The Marbury Myth: John Marshall’s famous decision does not support judicial supremacy. (Robert Lowry Clinton, 5/06/10, National Review)

In its Marbury opinion, the Court (per Chief Justice John Marshall) ruled that Section 13 of the Judiciary Act of 1789, which authorized the Court to issue writs of mandamus in original (trial) jurisdiction to any “persons holding office under the authority of the United States,” impermissibly enlarged the Court’s jurisdiction beyond the terms of Article III of the Constitution, which restricts the Court’s trial jurisdiction to cases involving ambassadors, public ministers, consuls, or states. This meant that, although Marbury had a legal right to his commission that was violated by Madison’s failure to perform a ministerial duty, the Court could not provide the requested relief because the congressional extension of the Court’s jurisdiction was unconstitutional.

In the final pages of his Marbury opinion, Chief Justice Marshall argued that a legislative act in conflict with the Constitution is void, and then carefully restricted the Court’s power to invalidate such acts to instances in which the Court is forced to ignore either the Constitution or the statute in order to decide a particular case. The only time this situation can arise is when the constitutional and statutory provisions involved are addressed to the Court itself, as in Marbury. In other words, under Marbury’s reasoning, the Court is not entitled to “reach out” and invalidate a legislative act simply because the Court doesn’t like it, or even because the Court believes that some other agency of government has done something unconstitutional.

Thus, Marbury-style judicial review is very limited in scope. It is restricted to cases in which Congress has unconstitutionally meddled with the Court’s functions. This is surely why the case was largely ignored by courts and legal commentators as a precedent for judicial review until the late 19th century. The Court itself didn’t notice that Marbury had anything to do with judicial review until 1887, and even then it misread the case as authorizing judicial review of state law — which Marbury had nothing to do with. It was not until 1895 that the Court first cited Marbury as a precedent for judicial review of national law, despite having invalidated some 20 congressional acts by that time. Stop and think for a moment about what this means: The case that is used as the leading precedent for modern judicial supremacy was not even regarded as an instance of judicial review until 92 years after it was decided!

All told, of the 88 citations of Marbury by justices of the Supreme Court between 1803 and 1957, only ten refer to the judicial power to invalidate laws, and all ten advance highly restrictive notions of that power, confining it to a narrow range of cases. Nowhere can we find even a suggestion that the Court is the ultimate or exclusive arbiter of all constitutional questions. If Marbury really authorized judicial supremacy, why wouldn’t someone on the Court have said so during its first century and a half?

It was in 1958 that everything changed.

Posted by Orrin Judd at May 7, 2010 6:56 AM
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