Marbury v. Madison
... must determine which of these conflicting rules governs the case. This is the very essence of the judicial duty. [p. 24] Marshall announces that the essence of judicial duty is to decide between law and the constitution, despite the fact that in 1803 it was not the duty of judges in any other country, including England. But if the essence of judicial duty is to decide whether to follow the Constitution or ordinary statutes, it sounds as though Marshall is suggesting it is a case by case matter. On what basis does a judge make such a decision? Well, since the Constitution is "superior to any ordinary act of the legislature, the constitution, and not such an ordinary act, must govern the case to which they both apply" (p. 24). The essence of judicial duty turns out to be no duty at all--there is no determination to be made: all conflicts must be resolved in favor of the Constitution. The critical question is still being avoided: Who decides that a conflict exists? What are the reasons it should be the courts? There may be many good reasons—but Marshall does not explicitly supply them. He does suggest a policy reason why the decisions should not be made by the Congress: "It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits" (p. 24). It should be remembered, however, that the president does have the veto power, congressmen are elected (and can lose elections), and England, a fairly civilized country, does have parliamentary supremacy. Even if the Court treats the Constitution as law, its decisions could be only binding on the parties in the cases brought to the court (which was Jefferson’s position).11 The argument from oath (the Constitution requires that all government officers, including judges, pledge to uphold the Constitution) (p. 25),12 presupposes the conclusion it is advocating. If the Constitution says that the legislature has the power to unreviewably interpret the Constitution a judge does not violate the Constitution by eschewing judicial review. Marshall refers to the supremacy clause in Article VI: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land . . . But that paragraph (not actually quoted by Marshall) proceeds to specify: " . . . and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding." This paragraph is less than transparent and Marshall makes no attempt to clarify it, except to say that the Constitution is mentioned first and that the laws are to be made "in pursuance thereof." David Currie points out that the wording is "this," not "the," Constitution, the point being to distinguish the new Constitution from the Articles of Confederation.13 It is this constitution and the new legal regime based on it that shall be supreme--leaving behind the Articles regime. Furthermore, state laws should not conflict with the new Constitution. But all this arguing with Marshall is in an important sense beside the point, since he was deciding things ultra vires. Which is not to say that his actions were immoral or even illegal—they were just not within accepted judicial practice. So his opinion does not have the same status as, say, Gideon v. Wainwright or Youngstown Sheet and Tube Co. v. Sawyer. Marbury v. Madison is the one Supreme Court opinion that cannot be considered law--at least not because of the fact that it was decided by the Supreme Court. It was because the opinion later gained acceptance that later acts of judicial review can be considered to establish the law. The fact that judicial review is not unequivocally called for by the Constitution does not mean that it is therefore unconstitutional. But it does mean that it is not legally based on Marbury v. Madison. If in 1803 the validity of judicial review was an open question it is meaningless for the Supreme Court to rule on the matter. Either judicial review of some sort was with the country ab initio--and Marbury v. Madison is but a reasoned self-interpretation by the Court--or the issue was as yet not clarified, in which case the court simply asserted a position and claimed for itself a new degree of power and authority; and the other branches of government and the country as a whole acquiesced to this new role. Judicial review arose out of convention not law. H. L. A. Hart says that a legal system is the union of primary and secondary rules. Primary rules specify obligations. Secondary rules specify how we know what the primary rules are (rule of recognition), what the procedure is for making and changing the primary rules (rule of change), and how violations of the primary rules are certified and punished (rule of adjudication). The rule of recognition providing the criteria by which the validity of other rules of the system is assessed is in an important sense . . . an ultimate rule: and where, as is usual, there are several criteria ranked in order of relative subordination and primacy one of them is supreme . . . . We may say that a criterion of legal validity or source of law is supreme if rules identified by reference to it are still recognized as rules of the system, even if they conflict with rules identified by reference to other criteria . . . . The sense in which the rule of recognition is the ultimate rule of a system is best understood if we pursue a very familiar chain of legal reasoning . . . . [which leads to the point where] we are brought to a stop in inquiries concerning validity: for we have reached a rule which, like the intermediate statutory order and statute, provides criteria for the assessment of the validity of other rules; but it is also unlike them in that there is no rule providing criteria for the assessment of its own legal validity . . . . . When we move from saying that a particular enactment is valid, because it satisfies the rule that what the Queen in Parliament enacts is law, to saying that in England this last rule is used by courts, officials, and private persons as the ultimate rule of recognition, we have moved from an internal statement of law asserting the validity of a rule of the system to an external statement of fact which an observer of the system might make even if he did not accept it. So when we move from the statement that a particular enactment is valid, to the statement that the rule of recognition of the system is an excellent one and the system based on it is one worthy of support, we have moved from a statement of legal validity to a statement of value.14 From this perspective, the memorable part of Marbury v. Madison is a sui generis opinion because it is not concerned with obligations (primary rules), but with secondary rules of recognition, change, and adjudication. It is asserting, in the absence of a preexisting rule on the matter, that the Supreme Court can end a law (rule of change), can decide with finality whether the Constitution has been viola...