The Constitutional Journey of Marbury v. Madison

Abstract

Although Marbury v. Madison is viewed as foundational to the American constitutional enterprise, there have been widely differing views as to what foundational principle Marbury embodies. Some commentators have identified Marbury with the "judicial veto" principle, under which anyone disappointed by a law promulgated by the executive of legislature is entitled to a judicial determination of the constitutionality of that law. Others have suggested that the current Supreme Court believes that Marbury and its progeny mean that in most cases, there is no room even for constitutional interpretation by other branches of government: legislative and executive acts have no constitutional status until the judiciary passes on them. Still others treat Marbury as standing for the far more limited proposition that judicial review only permits courts to engage in constitutional interpretation within a limited sphere of "cases and controversies" in which they are authorized to do so, and outside that sphere there is a vast realm where constitutional issues are delegated to the political branches. This article sketches successive understandings of Marbury since it was handed down, and attempts to show how those understandings have been affected by changing views of the relationship of the judiciary to other branch actors in the American constitutional order. It argues that successive understandings of Marbury have not pivoted on the legitimacy of "judicial supremacy," as that term has been conventionally understood. They have pivoted, instead, on the scope of judicial supremacy: on the extent to which the Court has tacitly allowed other branches to carve out some space for their own constitutional interpretations. My interpretation of the "constitutional journey" of Marbury requires "judicial review," in American constitutional jurisprudence, to be seen as a composite of two foundational principles. One is the principle that in "cases or controversies" involving interpretations of the Constitution of the United States, the judiciary is the "ultimate expositor." That principle amounts to judicial supremacy, and was understood as such by early commentators on Marbury. The other is the principle that the range of "cases and controversies" requiring judicial interpretation of the Constitution is comparatively narrow, and outside that range there is a wide scope for activity by other branch actors that amounts to constitutional interpretation. This principle, which I call "departmental discretion," assumes that although the judiciary has the power to review implicit constitutional judgments by other actors, that power includes the freedom to decline to do so. Although my interpretation might seem intuitively obvious to persons familiar with American constitutional jurisprudence, it does not seem easily reconcilable with current commentary that suggests that "judicial review" has always, and should be, grounded in "popular constitutionalism." I explore that conflict in concluding portions of the article.