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Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."
He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any ordinary act of the legislature; the constitution, and no such ordinary act, must govern the case to which they both apply." So too, he explained the duty of judges not generally, but by reference to the judicial role in deciding cases: "If two laws conflict with each other, the courts must decide on the operation of each …. The court must decide which of these conflicting rules governs the case. This is of the very essence of judicial duty."
Philip A. Hamburger,
Law and Judicial Duty,
Geo. Wash. L. Rev.
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