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Now that a two-century perspective is available, what should we make of Marbury v. Madison, decided on Feb. 24, 1803? That perspective suggests that the standard reason for celebrating the case is overhyped, but that Marbury nevertheless has been deeply influential, although not in the most obvious fashion. As for the hype, Marbury is said to have established the institution of judicial review, under which courts may treat as invalid those acts of the legislature inconsistent with the Constitution. Yet the most important form of judicial review was not at issue in Marbury � and was never seriously questioned � and Chief Justice John Marshall’s famous decision did not establish anything anyway. Marbury was about the validity of an act of Congress. William Marbury had sued Secretary of State James Madison in the Supreme Court, demanding that Madison deliver Marbury’s commission as a justice of the peace for the District of Columbia. Marbury claimed that the Court had original jurisdiction under Section 13 of the Judiciary Act of 1789. The Court agreed that the statute authorized the suit, but held that the act was inconsistent with Article III of the Constitution, which governs the Court’s jurisdiction, and therefore invalid. The Constitution does not provide in so many words for judicial review of acts of Congress. It does, however, come very close to providing in so many words for judicial review of state laws that are inconsistent with federal law, including the Constitution. Article VI says that federal law is supreme and that judges shall be bound by federal law, notwithstanding anything to the contrary in state law. Since the Constitution was ratified it has been agreed on all hands that judicial review in that context is required. And it is in that context that the bulk of the truly important controversies involving judicial review have arisen. In John Marshall’s own day, the hot-button issue was federal judicial review of state debtor relief legislation under the contracts clause; Marbury itself was the only case in which the Marshall Court held an act of Congress invalid. In our day, Brown v. Board of Education and its progeny and Roe v. Wade and its line of cases have been far more controversial than anything the Court has done regarding acts of Congress. WHICH COURT, NOT WHETHER To be sure, through the first half of the 19th century there was a bitter disagreement about judicial review of state laws, but it was not about whether such review was appropriate: The disagreement was about whether it should be conducted by state or federal courts. On that score, the truly important Marshall Court case is Martin v. Hunter’s Lessee, which asserted forcefully that the Supreme Court of the United States had appellate jurisdiction over the courts of the states with respect to questions of federal law. While Marbury dealt with the kind of judicial review that has turned out to be less important, it cannot be said to have established the propriety of judicial review of acts of Congress. On those rare occasions when the Court has for a time gotten itself on the wrong side of Congress with respect to some important issue, the propriety of federal-federal judicial invalidation has been questioned. On those occasions, Marbury has of course been invoked by its supporters, but it has been just as vigorously denounced by its detractors. And that is about what one would expect: It would be strange if a highly controversial question could be settled by a pronouncement from one of the parties to the controversy. John Marshall could call spirits from the vasty deep, but they would not necessarily come when he did call for them. At a deeper level, though, Marbury reflects, and probably helped produce, the way in which judicial review is understood in this country. For John Marshall, the argument to the invalidity of unconstitutional laws was simplicity itself. The Constitution is law; it says so in Article VI. It is superior to ordinary legislation, and when superior and inferior law conflict, the superior prevails and the inferior is treated as a legal nullity. (That is the relationship between superior and inferior that is explicitly contemplated by Article VI with respect to federal and state law; Marbury holds that the same relationship obtains between the Constitution and acts of Congress.) Courts apply the law, and in case of a seeming conflict must determine which legal rule is to be followed and then follow it. In Marshall’s hands, judicial review became perfectly ordinary, just a matter of the courts doing their job. He did not claim to be making any momentous decisions about truth or justice, but was only solving a legal problem. BEYOND ORDINARY REVIEW Despite the allure of Marshall’s argument, his is not the only argument for judicial review. Others assert that when they do, the courts are usually not making ordinary legal judgments, but rather are deciding for themselves serious questions of policy, or even morality. If that is what goes on in judicial review, then of course some justification for it is needed beyond the justification that explains why courts are the institution that makes ordinary legal decisions. Much ink has been spilled providing, and denying, justifications for a judicial role that do not rely on Marshall’s seemingly simple-minded syllogism. The years since Marbury have seen repeated performances of a little drama, one driven by the strength and weakness of Marshall’s argument. Because it is so strong, if its premises are correct, Marshall’s account remains the official story: American judges generally say that they are but the mouthpieces of the law and that an attack on their pronouncements is an attack on the Constitution itself. If courts really are just doing law when they do judicial review, that is highly persuasive. Critics, though, are quick to question the premise. They maintain that constitutional decisions rest not on determinate political judgments made in the process of creating the Constitution but on the judges’ own views. Marbury, say the critics, provides a rationalization but not a rationale, making it possible for the judges, Oz-like, to project their voice as the law’s own. In response to the critics, supporters of the courts frequently concede that, of course, no one really believes the naive Marbury model of judicial review, and then try to provide a justification that works even if one accepts that the courts are making substantive political and moral choices. Those exchanges, though, are mainly for sophisticates and scholars. Ask most Americans why the country has judicial review, and you will probably get an answer a great deal like John Marshall’s. And if the Constitution is still around in 2103, Marshall’s seductively easy account probably will be, too. John C. Harrison is a professor at the University of Virginia School of Law in Charlottesville.

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