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Michael 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?