Promoted from the Ricochet Member Feed by Editors Created with Sketch. The True Meaning of Marbury v. Madison

 

hqdefaultMichael Stokes Paulsen is one of America’s most prominent scholars of constitutional interpretation, and the co-author (with his son) of the recently-released, The Constitution: An Introduction. I just discovered his fascinating 2004 article, “The Irrepressible Myth of Marbury.” From the introduction:

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago — 1803, if the storyteller is trying to be precise — in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of “judicial review.” Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.

But, he argues, “nearly every feature of the myth is wrong.”

Judicial review did not originate with Marbury v. Madison. Indeed, he observes, the notion of judicial review predates Marbury by quite some time.

Furthermore, in Marbury’s analysis, the Supreme Court doesn’t make the law; the Supreme Court is under the law.

Contrary to received wisdom, Marbury does not suggest that in matters of constitutional interpretation, judicial review implies judicial supremacy. “The logic of Marbury,” he writes, implies only one kind of supremacy, and that is constitutional supremacy — “the supremacy of the document itself over misapplications of its dictates by any and all subordinate agencies created by it.”

Moreover, he proceeds, the arguments Justice Marshall used to develop the proposition of independent judicial interpretation “tend to support the conclusion that the other branches are similarly competent to interpret the Constitution and likewise not bound by the erroneous interpretations of their fellow branches.” In other words, the executive and legislative branches, as well as the states, are equally qualified to interpret the Constitution. The idea is an extension of the separation of powers — a separation of the power to interpret the Constitution!

“Marbury’s premises,” writes Paulsen, “are unassailable, its logic impeccable, and its rhetoric beautiful. All of which makes its contemporary betrayal so lamentable.”

The article is a delight to read, whether or not you have a background in law. It is well worth the reading: A summary is no substitute; don’t deprive yourself! Paulsen’s articles, “Everything You Need to Know About Constitutional Law” and “Citizens, Unite! Part Two of Your Constitutional Primer”, are more great, quick reading.

This stuff is big. If Paulsen’s right, our legal system gets a whole lot – nearly everything – wrong.

Paulsen makes it all seem so simple – and, for conservatives, wonderful. But does anyone have an objection to him that escapes this philosophy teacher?

There are 27 comments.

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  1. Old Bathos Moderator

    The most noteworthy thing about Marbury is that the Court ruled that it had been granted powers to which it was not entitled under the Constitution. In contrast, the current Court grants itself legislative powers under magical interpretations of the 14th Amendment.

    But it is hard to blame the 3rd branch for self-aggrandizement. The first branch feels entitled to manage our lives in detail via the Commerce Clause. The second branch currently feels that it is accountable to no one. And the metastasis of the independent bureaucracy (de facto fourth branch?) is perhaps the greatest power grab of all.

    • #1
    • July 31, 2015, at 5:13 AM PDT
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  2. Saint Augustine Member
    Saint Augustine

    Old Bathos:The most noteworthy thing about Marbury is that the Court ruled that it had been granted powers to which it was not entitled under the Constitution. In contrast, the current Court grants itself legislative powers under magical interpretations of the 14th Amendment.

    But it is hard to blame the 3rd branch for self-aggrandizement. The first branch feels entitled to manage our lives in detail via the Commerce Clause. The second branch currently feels that it is accountable to no one. And the metastasis of the independent bureaucracy (de facto fourth branch?) is perhaps the greatest power grab of all.

    Nice comments!

    I feel obligated to note that I think Paulsen would object to the claim that in Marbury the Court claimed powers it was not entitled to under the Constitution. (I read Marbury yesterday and didn’t notice the Court claiming anything of the sort–quite the contrary, in fact; but it was only a first read!)

    • #2
    • July 31, 2015, at 5:18 AM PDT
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  3. Claire Berlinski, Ed. Editor

    Fascinating post, Augustine, and boy were you right: Once you start reading it, you can’t stop. I am very eager to read the comments on this thread. I’ll be ordering his new book, too.

    Thanks for the heads-up on this.

    • #3
    • July 31, 2015, at 6:32 AM PDT
    • 1 like
  4. Saint Augustine Member
    Saint Augustine

    Thanks, Claire!

    Gee, a lot has changed since this was edited a bit. The references to the book are an improvement, and the subtraction of the bullet list format is ok, I guess.

    The new graphic is nice, but the old one was so much fun for me that I hate to see it go. Maybe I’ll just leave it here in comments:

    Marbury eye opener

    • #4
    • July 31, 2015, at 6:51 AM PDT
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  5. Claire Berlinski, Ed. Editor

    Augustine:Thanks, Claire!

    Gee, a lot has changed since this was edited a bit. The references to the book are an improvement, and the subtraction of the bullet list format is ok, I guess.

    I was the one who edited it, and I was thinking, “Oh no, I hope this isn’t too much and that I haven’t tampered with it excessively.” I got a bit excited about it, I confess.

    Let me explain the changes, though: The reason for the addition of the biographical information was that I thought readers who didn’t immediately recognize Paulsen’s name (like me) could use a few words explaining who he was. Then when I started reading the article, I thought — wow, this is great. This is a great intro, why not share it and further tempt our readers to read it. … Hey, this line is great, too, why not share it. I figured you wouldn’t mind if I added the extra quotations. If you tell people something’s a great read, they might think, “huh.” If you show them, on the other hand …

    And I added the reference to his new book because I figured, “I want to order it, so I bet other people will, too.”

    But the big edit — the switch from bullet-points to prose — is because powerpoint and bullet-point lists are everything that’s wrong with our culture today (my view, not an official rule), and more importantly, they can look a little weird on Main. Once I switched it to prose, I had to add conjunctions, etc., so that it still made sense.

    I also deleted every place in which you deprecated yourself, as I always do when Ricochet members call themselves something like “lowly” — we do not consider our members “lowly.” And I took out the enticements to read his articles because they were “easy” because, frankly, they’re not: They’re profound and require thought. But that shouldn’t scare a reader one bit. Not a Ricochet reader, anyway.

    The graphic was great, and I’m glad you added it in the comments, but it didn’t resize in a way that looked right, and I wasn’t sure it was okay to use, photo-creditwise. I couldn’t figure out if it was in the public domain. If I’d known you’d made it, I’d have asked Max if we could squish it in, somehow!

    I hope I didn’t offend by over-editing. But I loved the post and found the reading to which you linked so interesting that I really wanted to make it look visually smooth as a Main Feed post.

    Anyway, that was a very welcome mental diversion for me — it got my mind off Turkish politics, which is the first time that’s happened in ten days.

    • #5
    • July 31, 2015, at 7:55 AM PDT
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  6. Saint Augustine Member
    Saint Augustine

    Claire Berlinski, Ed.:

    The reason for the addition of the biographical information . . . .

    Yes. This was an improvement, as were the quotations and reference to the book. Thank you!

    But the big edit — the switch from bullet-points to prose — is because powerpoint and bullet-point lists are everything that’s wrong with our culture today . . . .

    I don’t agree on that. But I think I understand, and in any case the loss of the bullet points wasn’t a big deal. The prose works.

    I also deleted every place in which you deprecated yourself, as I always do when Ricochet members call themselves something like “lowly” . . .

    Understood. But I can’t promise not to denigrate myself a bit in future.

    I couldn’t figure out if it was in the public domain.

    I still don’t know if it’s public domain–or if I own it, or Ricochet, or the people who made the movie!

    I hope I didn’t offend by over-editing.

    Not at all, and I wouldn’t call it “over-editing.” I was a bit taken aback at first, but it’s cool; this sort of thing happens with editors and dissertation readers, and generally does more good than harm. (And it means a lot that you were concerned.)

    Anyway, that was a very welcome mental diversion for me — it got my mind off Turkish politics, . . . .

    My mind these days is increasingly on Turkish Airlines.

    • #6
    • July 31, 2015, at 8:19 AM PDT
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  7. Jerry Giordano (Arizona Patrio… Member

    Old Bathos:The most noteworthy thing about Marbury is that the Court ruled that it had been granted powers to which it was not entitled under the Constitution.

    I disagree. The power of “judicial review” is inherent in the judicial power, which is unambiguously vested in the US Supreme Court. What else is SCOTUS to do when faced with a case in which the government is seeking to apply an unconstitutional statute? Enforce the unconstitutional statute?

    The noteworthy thing about Marbury is that it is the first SCOTUS case applying the doctrine of judicial review.

    The OP is correct that many people erroneously interpret Marbury as establishing an exclusive right to determine the constitutionality of statutes (and other government actions) in the courts. The legislature and executive have the same rights — Congress can decline to adopt a statute, or repeal one, because it believes the statute unconstitutional, and the President can veto a statute for the same reason.

    A tougher question is whether a President can — or perhaps should — decline enforce a statute that he believes to be unconstitutional. This seems to present a danger of Presidential dereliction of duty for questionable reasons, but on balance, I think that this power is inherent in the delegation of the executive power to the President.

    • #7
    • July 31, 2015, at 9:09 AM PDT
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  8. James Gawron Thatcher
    James GawronJoined in the first year of Ricochet Ricochet Charter Member

    Aug,

    It is interesting to make a little chart.

    Null Judicial Review > Limited Judicial Review < Absolute Judicial Review

    or

    Judicial Impotence > Constitutional Supremacy < Judicial Supremacy

    Thomas Jefferson so committed to the enterprise of government as the elected representatives of the people didn’t believe in any Judicial Review. In the 20th century the myth of Marbury, as Paulsen so aptly calls it, has produced a belief in Absolute Judicial Review (Judicial Supremacy). For the average lefty once a piece of his zeitgeist is confirmed by a Supreme Court decision out of his mouth pops “It’s the law of the land” as if this judicial overreach is now cast in stone for an eternity.

    Paulsen brilliantly shows that Marshall’s Marbury argument is only establishing a limited review capacity for the Court. Our 20th century version is nowhere in Marshall’s actual argument and rests on the ignorance of those who hold to it.

    I was reading Robert George’s “Conscience and its Enemies”. His Part I: Fundementals has a discussion of this that is very relevant. Also, George is writing in 2012 and his comments have a special bite considering what the Court has just done.

    Thanks again Aug.

    Regards,

    Jim

    • #8
    • July 31, 2015, at 9:10 AM PDT
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  9. Saint Augustine Member
    Saint Augustine

    Nice chart and distinctions, James Gawron! I think you, Paulsen, and Marshall get it just right on that score–the middle of both charts is the right place for SCOTUS!

    Arizona Patriot:

    What else is SCOTUS to do when faced with a case in which the government is seeking to apply an unconstitutional statute? Enforce the unconstitutional statute?

    I believe Marshall asks that question himself in Marbury.

    Arizona Patriot:

    “The power of ‘judicial review’ is inherent in the judicial power, which is unambiguously vested in the US Supreme Court.”

    I concur, and I think we’re on the right side of Paulsen here. I’m a little unsettled because I understand Epstein, our own Ricochet con law shining light, says otherwise. (If I’m getting Epstein wrong, I sure hope someone lets me know!)

    But I’m slowly mulling over some distinctions that might allow me to side with Paulsen over Epstein here, and with Epstein over Paulsen on a different matter. That would make me feel less unsettled, and it would also be fun!

    • #9
    • July 31, 2015, at 9:36 AM PDT
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  10. Claire Berlinski, Ed. Editor

    Just as an aside, when I read this, I had a passing thought about an alternative life I might have had studying constitutional law. I couldn’t have been persuaded at the age when I could reasonably have embarked on that to do it professionally — my wanderlust was too great, and my curiosity about other places was too great. I wanted the life I’ve had, and it’s not one I regret at all.

    But if I could have had two lives, I would have loved to have devoted the second one to studying constitutional law.

    Anyway, I took the road more travelled, and that made all the difference.

    • #10
    • July 31, 2015, at 11:13 AM PDT
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  11. Doctor Bass Monkey Inactive

    The problem becomes who is the final arbiter of what is and isn’t constitutional. If the Congress and President both think it is, why does the Supreme Court get to override them? There is nothing in the Constitution giving them that power. Today, the President and Congress have ceded that authority to them to the point that they largely don’t care if a law is Constitutional or not and leave it up to the Court to decide. But if we follow this quote: “tend to support the conclusion that the other branches are similarly competent to interpret the Constitution and likewise not bound by the erroneous interpretations of their fellow branches” how do we reconcile differing interpretations of constitutionality? Are Congress and the President just going to ignore the Supreme Court? That’s a recipe for chaos. There has to be a final say-so. It should be with the elected bodies and not an appointed one that isn’t accountable to the public. If you add the states to the mix, you’re back to the Nullification Crisis all over again.

    • #11
    • July 31, 2015, at 1:19 PM PDT
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  12. Saint Augustine Member
    Saint Augustine

    Whiskey Sam:

    . . . how do we reconcile differing interpretations of constitutionality? Are Congress and the President just going to ignore the Supreme Court? That’s a recipe for chaos. There has to be a final say-so.

    I think what Paulsen says on this, towards the end of the article, is that it’s not much different from the separation of powers we already have. So it doesn’t have to be chaotic.

    I can see an objection here: that the only reason separation of powers hasn’t been very chaotic has been that we’ve had the Supreme Court as umpire.

    I’m not sure what the proper Paulsenish answer is to this challenge, but here are a few ideas that might work. Please note that I’m not endorsing these right now; I, for one, haven’t given them enough thought yet:

    • It wouldn’t be all that chaotic; the particular separation of powers we have is designed to be a bit chaotic at times, but never something the country can’t handle.
    • It wasn’t all that chaotic; that’s how the country operated in the years XXXX-XXXX.
    • It’s the law. That’s the constitutional system we have enshrined in the actual Constitution. We can deal with the chaos, and we should, for the sake of the rule of law.
    • #12
    • July 31, 2015, at 1:58 PM PDT
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  13. Doctor Bass Monkey Inactive

    Augustine:

    Whiskey Sam:

    . . . how do we reconcile differing interpretations of constitutionality? Are Congress and the President just going to ignore the Supreme Court? That’s a recipe for chaos. There has to be a final say-so.

    I think what Paulsen says on this, towards the end of the article, is that it’s not much different from the separation of powers we already have. So it doesn’t have to be chaotic.

    I can see an objection here: that the only reason separation of powers hasn’t been very chaotic has been that we’ve had the Supreme Court as umpire.

    I’m not sure what the proper Paulsenish answer is to this challenge, but here are a few ideas that might work. Please note that I’m not endorsing these right now; I, for one, haven’t given them enough thought yet:

    • It wouldn’t be all that chaotic; the particular separation of powers we have is designed to be a bit chaotic at times, but never something the country can’t handle.
    • It wasn’t all that chaotic; that’s how the country operated in the years XXXX-XXXX.
    • It’s the law. That’s the constitutional system we have enshrined in the actual Constitution. We can deal with the chaos, and we should, for the sake of the rule of law.

    It can work as long as the other branches defer to each other, but once there is a true conflict on the meaning of the Constitution, there’s no way to resolve it without a final authority. Eventually you wind up with a Nullification Crisis or Andrew Jackson defying the Supreme Court because they are powerless to enforce their rulings without the executive branch. Thomas Jefferson was writing with concerns about the Court having final authority as early as 1820 so it didn’t take long for that to become the understood result of the ruling.

    • #13
    • July 31, 2015, at 2:24 PM PDT
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  14. Saint Augustine Member
    Saint Augustine

    Whiskey Sam:

    It can work as long as the other branches defer to each other, but once there is a true conflict on the meaning of the Constitution, there’s no way to resolve it without a final authority. Eventually you wind up with a Nullification Crisis or Andrew Jackson defying the Supreme Court because they are powerless to enforce their rulings without the executive branch. Thomas Jefferson was writing with concerns about the Court having final authority as early as 1820 so it didn’t take long for that to become the understood result of the ruling.

    Having another branch (or the states) resolve a few Constitutional questions for a change doesn’t sound so bad to me. I think I’d like that.

    • #14
    • July 31, 2015, at 2:42 PM PDT
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  15. Michael Collins Member

    Paulsen makes the assumption that the constitution alone is the “Supreme Law of the Land”. Not so. According to Article VI:

     “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    The Constitution, Laws, and Treaties of the United States are the supreme Law of the Land as over and above state law. None of the three is singled out as being superior to the other two. This is the only place judicial review is mentioned, and state judges are the arbiters. The Judiciary Act of 1789 provided for the appeal of state judicial decisions to federal courts. Good idea, but not part of the Constitution itself. Marbury vs Madison could be justified under Madisons’ view of tripartite constitutionalism, under which each branch of the government is responsible for interpreting the article defining its own authority. Marshall interpreted Article III (pertaining to the judiciary) as saying that Congress could not add to the original jurisdiction of the Supreme Court. Madison knew there would be conflicts among the three branches, but expected these to be resolved on a case by case basis, -with Congress as the most powerful branch becoming the ultimate winner.

    • #15
    • July 31, 2015, at 4:14 PM PDT
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  16. Saint Augustine Member
    Saint Augustine

    Michael Collins:

    Paulsen makes the assumption that the constitution alone is the “Supreme Law of the Land”. Not so. According to Article VI:

     “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    The Constitution, Laws, and Treaties of the United States are the supreme Law of the Land as over and above state law. None of the three is singled out as being superior to the other two.

    In respect of state law, of course federal laws are not singled out and weighed against each other. In respect of federal law, of course the Constitution is supreme.

    • #16
    • July 31, 2015, at 4:26 PM PDT
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  17. Saint Augustine Member
    Saint Augustine

    Michael Collins: The Judiciary Act of 1789 provided for the appeal of state judicial decisions to federal courts. Good idea, but not part of the Constitution itself.

    I concur that that’s a good idea. But I think this is also what Freedman wants to cut back on a bit: Congress should remove some federal court powers over the states. (Will someone please correct me if I’m wrong here?)

    I’m with Freedman on the usefulness of cutting that back.

    • #17
    • July 31, 2015, at 4:29 PM PDT
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  18. Michael Collins Member

    Augustine:

    In respect of state law, of course federal laws are not singled out and weighed against each other. In respect of federal law, of course the Constitution is supreme.

    Why “of course”?

    • #18
    • July 31, 2015, at 7:11 PM PDT
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  19. Saint Augustine Member
    Saint Augustine

    Michael Collins:

    Augustine:

    In respect of state law, of course federal laws are not singled out and weighed against each other. In respect of federal law, of course the Constitution is supreme.

    Why “of course”?

    Well, for one thing, the Constitution is what gives other federal laws (Article I) and treaties (Article II) their legitimacy. They derive their status as law from the Constitution–never vice versa.

    • #19
    • August 1, 2015, at 5:35 AM PDT
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  20. Michael Collins Member

    Augustine:

    Well, for one thing, the Constitution is what gives other federal laws (Article I) and treaties (Article II) their legitimacy. They derive their status as law from the Constitution–never vice versa.

    In the case of Treaties notice that Article VI refers to “all Treaties made, or which shall be made, under the authority of the United States”. In other words the Treaty of Paris, which was ratified before the Constitution, remains the supreme law of the land. This is not incidental, as one of the problems the Constitution was meant to resolve was the flouting of the provisions of treaties, particularly the Treaty of Paris, by various state governments. The Treaty of Paris derives its legitimacy from “the authority of the United States” rather than from the Constitution.

    • #20
    • August 1, 2015, at 7:28 AM PDT
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  21. Saint Augustine Member
    Saint Augustine

    Augustine: In respect of state law, of course federal laws are not singled out and weighed against each other. In respect of federal law, of course the Constitution is supreme.

    Michael Collins:

    In the case of Treaties notice that Article VI refers to “all Treaties made, or which shall be made, under the authority of the United States”. In other words the Treaty of Paris, which was ratified before the Constitution, remains the supreme law of the land. This is not incidental, as one of the problems the Constitution was meant to resolve was the flouting of the provisions of treaties, particularly the Treaty of Paris, by various state governments. The Treaty of Paris derives its legitimacy from “the authority of the United States” rather than from the Constitution.

    The authority of the United States is vested in the Constitution from the moment of its adoption.

    Even if it were not, I don’t see how your case could be made for any exception, other than a very few preexisting treaties, to the supremacy of the Constitution alone among federal laws.

    • #21
    • August 1, 2015, at 7:41 AM PDT
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  22. Michael Collins Member

    Augustine, maybe a case can be made that the Constitution is the supreme law of the land over and above federal laws and treaties, but it is at best unclear. The clause we are discussing from Article VI in particular is known as the “supremacy clause”, and it refers to the Constitution, treaties, and laws as the “supreme Law of the land”. None of the three is singled out as being more important than the other two. And it specifically names state judges as the ones responsible for upholding this supreme law (as over and against state law) without authorizing them to find federal laws or treaties unconstitutional. There is no other place that explicitly provides for judicial review besides Article VI. By the way, has any court ever held a treaty to be unconstitutional? I haven’t heard of it, but maybe it has happened. My impression is that the courts believe this would undermine the executive branch in its ability to conduct foreign policy. Ok, so I haven’t proved federal courts can’t hold federal laws unconstitutional, but you haven’t proved that they can. As long as we are challenging the myth of Marbury vs Madison, let’s challenge the myth of Marbury vs Madison!

    • #22
    • August 1, 2015, at 9:35 AM PDT
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  23. Michael Collins Member

    Just to make clear where I am coming from Augustine. It seems that you want to limit the power of the courts to declare legislation unconstitutional. Good! I want to abolish judicial review altogether. Better!

    • #23
    • August 1, 2015, at 9:49 AM PDT
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  24. Saint Augustine Member
    Saint Augustine

    Michael Collins:Just to make clear where I am coming from Augustine. It seems that you want to limit the power of the courts to declare legislation unconstitutional. Good! I want to abolish judicial review altogether. Better!

    Very clear and succinct and interesting. Thank you!

    But I do not want to limit the power of the courts in this way. I follow Paulsen, which is simply to say this: I don’t think court decisions add any meaning to the Constitution, and I think the federal courts have any greater power to apply that meaning than do other branches of government.

    Properly understood, this could well involve federal courts striking down quite a bit more legislation than they usually do!

    • #24
    • August 1, 2015, at 10:11 AM PDT
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  25. Saint Augustine Member
    Saint Augustine

    Michael Collins:Ok, so I haven’t proved federal courts can’t hold federal laws unconstitutional, but you haven’t proved that they can.

    I was under the impression that I had done so here. (I responded to your objection, and also noted that the objection would only apply to a very small number of treaties.)

    I can prove it again: The Constitution (10th Amendment) limits federal statutory law. But it cannot limit it if it lacks authority over it.

    There is no other place that explicitly provides for judicial review besides Article VI [establishing it only for state courts]. . . . As long as we are challenging the myth of Marbury vs Madison, let’s challenge the myth of Marbury of vs Madison!

    That which was named “the myth of Marbury v. Madison” is not the legitimacy of judicial review. See above in the opening post and in Paulsen’s piece.

    The challenge you are suggesting to traditional understanding of Marbury is much stronger than that made by Paulsen (and charted above by Jim Gawron). I’m following Paulsen!

    The case for judicial review should be sought in Paulsen’s analysis of Marbury.

    The foundation of judicial review is the superiority of the Constitution itself. Judicial review is not a power explicitly granted to the Supreme Court by the Constitution. Judicial review is the Court’s power to recognize that what the Constitution says really is supreme law; and that is a power granted to all branches of government.

    (Continued)

    • #25
    • August 1, 2015, at 10:14 AM PDT
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  26. Saint Augustine Member
    Saint Augustine

    Continued:

    Michael Collins:The clause we are discussing from Article VI in particular is known as the “supremacy clause”, and it refers to the Constitution, treaties, and laws as the “supreme Law of the land”. None of the three is singled out as being more important than the other two.

    The Supremacy Clause establishes the authority of federal over state law. All federal laws partake equally of the characteristic of having superiority over state law.

    But for federal laws to lack any authority over each other is a different matter entirely, and I see no reason to think that this is evidenced by the Supremacy Clause.

    • #26
    • August 1, 2015, at 10:14 AM PDT
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  27. Duane Oyen Member
    Duane OyenJoined in the first year of Ricochet Ricochet Charter Member

    The place I have trouble with Prof. Paulsenn regards Lochner. When I read that case in my ConLaw class, I agreed with the decision, and later with Prof. Epstein. I simply do not understand the problem that Prof. Paulsen has with Lochner.

    • #27
    • April 4, 2016, at 2:52 PM PDT
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