Document Type

Article

Publication Date

2004

Abstract

Marbury v. Madison1 is our foremost symbol of judicial power. Not only is the decision regarded as the root of judicial authority to strike down statutes as violating the Constitution; it is also taken to mean that "the federal judiciary is supreme in the exposition of the Constitution."2 In other words, Marbury has come to stand for the proposition that courts should enforce their own understanding of the meaning of the Constitution, without deferring or even paying much attention to the views of the other branches.3

I will not in this essay engage in yet another analysis of Marbury's justification for judicial review, nor will I debate the virtues and vices of the aggressive judicial review for which the decision has come to stand-at least not directly. Instead, I will approach Marbury from a different angle. When the decision was handed down, and for many decades afterwards, Marbury was primarily regarded as being about judicial review of executive action, not legislative action. That is, Marbury was considered to be an administrative law decision.4 This essay asks what we can learn by considering Marbury from the perspective of the history of administrative law.5

One potential payoff from considering Marbury in this light concerns our understanding of the role of the courts in preserving the rule of law. One can readily imagine a modern democratic state in which there is strong respect for the rule of law and yet no judicial review of legislative action.6 It is much more difficult to imagine a democratic state that adheres to the rule of law but makes no provision for review of executive action by an independent judiciary. Marbury v. Madison, as it happens, is the first important statement by the U.S. Supreme Court about how courts should respond to lawless executive action. As such, the decision is worthy of study for what it tells us about the promise and pitfalls of such an undertaking. It is also worth considering how Marbury's solutions to the problem of lawless executive action have fared over time-what has worked, what has been discarded, and what has been importantly modified in response to accumulated experience.

The second payoff from considering Marbury as an administrative law decision is that it may teach us something about missed opportunities in the realm of judicial review of legislative action. There are, of course, important differences between judicial review of executive action and judicial review of legislative action. Yet in one critical sense, the two practices raise the same dilemma: how do we prevent courts, in the guise of enforcing their interpretation of the law, from usurping the rightful functions of the elected branches of government? That is, how do we prevent the rule of law from becoming the rule of the judges? By considering Marbury as a whole-the administrative law decision as well as the constitutional law decision-perhaps we can see this great symbol of American public law in a less imperial light: as a counsel of judicial strength through restraint, rather than what it has all too often become-a justification for judicial willfulness.

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