The Myths of Marbury
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Description
There are three types of stories told about Marbury v. Madison and the establishment and maintenance of judicial review. They are all, in their own fashion, wanting. The reason is that none of these stories takes sufficient account of popular will as the primary force in establishing and maintaining the judiciary's power to say what the Constitution means. It is often said that in Marbury v. Madison, the greatest judicial decision ever rendered, the legendary Chief Justice John Marshall created the power of judicial review. But this is demonstrably incorrect. The power of judicial review is noteworthy because it commands the compliance of officials with the rule of law. Marbury may have declared an enactment unconstitutional, but the judgment in Marbury required nothing of anybody save the judges themselves. Had John Marshall required something of those in power, he likely would have been rebuffed. In reality, it was long after Marbury that the power of judicial review would command acquiescence from government officials on a regular basis. There are those who take a considerably less grandiose view of Marbury, but even those who tell a more modest Marbury story apparently share a belief that judges have the power to establish and maintain the practice of judicial review. According to the modest story, all that happened in Marbury is that the Supreme Court (speaking through Marshall of course) recognized the obvious: that in deciding a case, judges—just like other government officials—must consult and follow the Constitution. Still, these Marbury minimalists acknowledge that today judicial constitutional pronouncements are supreme. This, we are told, occurred through a process of judicial “usurpation.” Not everyone accepts that the judges are so powerful. There is a third group who believes that as a matter of naked politics, the judiciary is indeed “the least dangerous branch;” and that “possessed of neither the purse nor the sword” judicial authority requires explaining. Under this account judicial review depends on the grace of the political branches, and especially the legislature. Judges have the power they do, it turns out, not because they took it, but because those in power gave it to them, or at least let them have it. Frequently lost in these accountings of judicial power are the rest of us: The People. There is an entirely different story of Marbury that can be told, and probably should be. It is a story that rests the power of judicial review squarely on the back of popular acquiescence. This recounting does not necessarily claim popular support for the establishment of judicial review, which turns out to be a remarkably complex question. But the maintenance of judicial review is unequivocally a function of popular acceptance. And in this exercise of popular will, our elected representatives are not a perfect proxy for our views. When it comes to protecting judicial review, the People may stand on their own, apart even from their elected agents. The discussion that follows largely is devoted to explaining why the stories we tell about the establishment and maintenance of judicial review are problematic. It is an exercise in clearing the way for alternative understandings about the politics of judicial review. Part I tackles “judicial power” stories, i.e., those that rest the power for creating judicial review on the backs of judges, explaining that this was not the case. Part II critiques the many different theories regarding why it is that those who have political (or other) power would choose to accept judicial review, showing how these stories are wanting. Part III offers a brief sketch of an alternative-the notion that judicial supremacy arose as a function of popular acquiescence, and that popular support maintains the institution today—and notes the implications for this alternative theory.
Source Publication
Arguing Marbury v. Madison
Source Editors/Authors
Mark Tushnet
Publication Date
2005
Recommended Citation
Friedman, Barry, "The Myths of Marbury" (2005). Faculty Chapters. 633.
https://gretchen.law.nyu.edu/fac-chapt/633
