Reconstructing Marbury

106 Pages Posted: 26 Apr 2005 Last revised: 22 Oct 2009

See all articles by Robert Reinstein

Robert Reinstein

Temple University - James E. Beasley School of Law

Mark Rahdert

Temple University - James E. Beasley School of Law

Abstract

Marbury v. Madison is justly celebrated as one of the most famous and influential decisions of the United States Supreme Court. But it is also one of the most frequently misunderstood. For example, many American lawyers and judges believe that Marbury's defense of judicial review rests upon separation of powers arguments. In this article, we demonstrate that Chief Justice Marshall's ultimate justification for the power of judicial review (defined broadly as the power of the courts to interpret the law, including the Constitution, and to use the processes of litigation to enforce its commands against the other branches of government) is the rule of law, not separation of powers.

To establish Marbury's rule of law foundation, we show first that Marshall's argument for judicial review was not based on unique characteristics of the American political or legal system. Rather, it was derived from British law and legal scholarship, particularly the writings of William Blackstone. Moreover, the debate surrounding judicial review during the ratification of the Constitution confirms the importance of the rule of law to the Marbury decision. The principle of judicial review was generally understood and accepted at the time of the framing, and was often acknowledged during the ratification process. There was a serious debate, however, about the relationship of judicial review to the structure of government, about courts' role in protecting individual rights, and about the potential for judicial abuse of power. Eventually these concerns led to a breakdown in consensus about judicial review, with President Jefferson championing an alternative view of the separation of powers that had been adopted in the organic laws of the French Republic. The rule of law themes in Marbury were in part an attempt to answer those who feared that judicial review would lead to a judicial autocracy.

We also address the chorus of criticism that Marshall's rule of law argument was hypocritical. Skeptics allege that Marshall manipulated legal doctrine to achieve his desired political result. We offer original arguments to show that his disposition of these issues (particularly his treatment of section 13 of the 1789 Judiciary Act as a jurisdictional statute) was plainly defensible under then prevailing legal doctrines, and probably correct.

The rule of law arguments we trace in Marbury v. Madison, with their antecedents in English common law and in the debates over constitutional ratification, have important implications for judicial review in nations with different legal cultures, most notably the People's Republic of China. Although many nations have not adopted the American scheme of sharply delineated separation of powers and checks and balances, all advanced modern legal systems share a commitment to the ideal of the rule of law. If, as we contend, Marbury's rationale relies foremost on rule of law principles, then it supports judicial review in any system that aspires to those principles. How judicial review is exercised may require adjustment to account for different relationships among the various departments of government within a particular political system. But the basic concept of a judiciary that is empowered to interpret law (including organic law), to declare illegal government action that exceeds the boundaries of law, and to enforce such judgments by, when necessary, invalidating unauthorized legislation or administrative regulations can apply in any nation committed to the rule of law.

Keywords: Marbury, Constitutional Law, judicial review, legal cultures

JEL Classification: K10, K30, K19, K39, K33

Suggested Citation

Reinstein, Robert and Rahdert, Mark, Reconstructing Marbury. Arkansas Law Review, Vol. 57, p. 729, 2004-2005, Available at SSRN: https://ssrn.com/abstract=710001

Robert Reinstein (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

Mark Rahdert

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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