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Our ninth and final seminar of our series on The Federalist concludes our discussion of judicial review, with a detour to the famous case of Marbury v. Madison in 1803 that supposedly settled the matter, though Lucretia draws some fine and original distinctions between what John Marshall did in Marbury and what the Supreme Court did afterwards.
From there we consider Hamilton’s argument in Federalist #84—the next to last Federalist Paper—that a Bill of Rights was not only unnecessary, but potentially dangerous. Hamilton lost that argument as a practical matter, but was his reasoning about this question wrong? Not necessarily, as we explain. Could we have been better off without a Bill of Rights? It seems unfathomable to think so, but we take in Herbert Storing’s thoughtful angle on this question.
Unfortunately a technical glitch bollixed our video recording of this final session, so we can’t post a YouTube video for people who like to follow along with our Power Point slides of the text and quotations we use. We’ll see if we can find an alternative mode to post them up.
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What about Daniel Webster’s argument that judicial review is entailed by the Constitution?
It just seems to me that if the Framers and Ratifiers had intended to grant to the Supreme Court the power not just to interpret the Constitution, but also to render null and void those laws that the Supreme Court believes are in conflict with their interpretation of the Constitution, then the Framers could have and should have better and more simply spelled out that grant of awesome power in the Constitution itself.
This dovetails somewhat with my belief that we have not amended the Constitution as often as we should have.
Does it matter what they were intending? Isn’t it more important what is written in the text? Is one of Webster’s premises wrong? Premise 1 would be: “SCOTUS has authority over all cases arising under the Constitution.” Premise 2 would be something like: “Cases requiring interpretation of the Constitution are cases arising under the Constitution.”
Yes!
I have never figured out how to remove an author’s intent from the process of interpreting that author’s text. Yes, it matters what they intended. I’m reminded of the joke about how punctuation matters:
What did the author mean?
Again, this time working backward from Webster to ratification: If the text were so clear, why did it take until Daniel Webster for anyone to figure it out? If the text were so clear, why didn’t Marshall use the same clear reasoning as Webster, instead of relying on the unexplained uniquery of the oaths administered to the Executive Branch officers involved in Marbury v. Madison?
Judicial Review is an awesome power. It should have been more clearly granted to the Supreme Court if that’s what the Framers and Ratifiers intended.
I’m not for removing it. But if the meaning in the text can be discerned without it, why not go ahead and discern it?
I don’t know that it did.
Beats me.
Read Michael Paulsen on Marbury and see if he answers.
No objections there.
But I notice you don’t directly address Webster’s argument. Which of his premises is wrong?
I don’t really care to consider Daniel Webster’s ex post facto argument. How many decades after Marbury v. Madison did Daniel Webster decide it was all clear all along, despite the fact that (the Framers and Ratifiers and) Chief Justice Marshall didn’t happen to notice all that clarity?
It seems to me to be as intellectually compelling as the Supreme Court of Massachusetts’ decision on same sex marriage. That Court’s holding pointed out that the words of the Massachusetts Constitution – drafted by Puritans and pre-dating the US Constitution – made it clear that the Commonwealth of Massachusetts had no choice but to grant equal status to same sex marriages as to traditional Puritan sacramental marriages.
Who cares when he made it?
The Constitution is law. One premise is written in the Constitution.
The other premise is that cases requiring interpretation of the Constitution are cases arising under the Constitution. Is that premise not true?
(Now if you’re interested, I do think Webster vastly overstated the importance of his own argument. I join Lincoln, Jackson, and others in thinking he’s wrong about one crucial thing.)